The statutory foundation: when a Florida wrongful death claim exists

Florida’s Wrongful Death Act imposes liability when a person’s death is caused by the “wrongful act, negligence, default, or breach of contract or warranty” of another, and the event would have entitled the injured person to maintain an action and recover damages if death had not ensued. Knowles v. Beverly Enterprises-Florida, Inc., 898 So. 2d 1, Fla. Stat. § 768.19.

Florida courts have reiterated this statutory trigger, emphasizing the “would have entitled” requirement as the gateway to a wrongful death claim. Wallace v. Dean, 3 So. 3d 1035.

Who makes the claim or files the case: the personal representative and the “single action” rule

A Florida wrongful death claim can only be brought by the personal representative of the decedent’s estate, who seeks recovery of all damages caused by the injury resulting in death for the benefit of the decedent’s survivors and the estate. Hartford Ins. Co. v. Goff, 4 So. 3d 770. If a lawsuit is filed, the personal representative must bring a single action to recover damages for all beneficiaries, and damages are awarded to survivors and the estate within the parameters set by Fla. Stat. § 768.21. Fla. Stat. § 768.20. Hartford Ins. Co. v. Goff, 4 So. 3d 770.

Under Florida law, a personal representative has the authority to pursue and settle a wrongful death claim directly with the responsible party’s insurance company without filing a lawsuit. This authority is grounded in the statutory framework of Florida’s Wrongful Death Act and related case law.

When the personal representative ultimately receives a settlement offer that does not distinguish among the beneficiaries, the representative is obligated to apportion the proceeds between the estate and the survivors in a reasonable and equitable manner. Cont’l Nat’l Bank v. Brill, 636 So. 2d 782.

Additionally, Fla. Stat. § 733.612(19) allows the personal representative to hire counsel to assist in carrying out these duties, including negotiating settlements. See also Catapane v. Catapane (In re Estate of Catapane), 759 So. 2d 9 (2000).

If a settlement is reached, it must be approved by the court if any survivor objects to the settlement amount or its apportionment, or if the settlement affects a minor or incompetent survivor. This ensures that the settlement is reasonable and equitable. Fla. Stat. § 768.25, Brunson v. McKay, 905 So. 2d 1058 (2005), Walker v. Bailey, 89 So. 3d 297 (2012). Furthermore, while survivors cannot compel the personal representative to accept a settlement offer, they retain the right to object and invoke the court’s authority to review the settlement. Walker v. Bailey, 89 So. 3d 297 (2012); Thompson v. Hodson, 825 So. 2d 941 (2002).

Who can recover: “Survivors” and common eligibility issues

The Act defines survivors to include the decedent’s spouse, children, and parents, and also includes certain dependent blood relatives and adoptive siblings. Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212, Fla. Stat. § 768.18. The definition includes a child born out of wedlock of the mother, but not a child born out of wedlock of the father unless the father recognized a responsibility for the child’s support. Fla. Stat. § 768.18. Consistent with that statutory language, Florida case law recognizes that a biological child of a father who was not married to the mother may claim survivor damages for the father’s death so long as it is established that the decedent was the biological father and that he acknowledged responsibility for support. Greenfield v. Daniels, 51 So. 3d 421; Fla. Stat. § 768.18. The statute does not require a formal declaration of paternity. Fla. Stat. § 768.18.

Damages: How Florida allocates recovery between survivors and the estate

Florida’s Wrongful Death Act is structured around two related ideas: (1) survivors recover for their own losses, and (2) the estate may recover certain economic losses attributable to the death.

Pleading requirement: identify all beneficiaries

When a lawsuit is filed, all potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, must be identified in the complaint, and their relationships to the decedent must be alleged. Fla. Stat. § 768.21.

Survivor damages (examples expressly listed in the statute)

Each survivor may recover the value of lost support and services from the date of injury to the date of death (with interest) and future loss of support and services from the date of death reduced to present value. Davis v. Simpson, 313 So. 2d 796, Fla. Stat. § 768.21.

In evaluating lost support and services, the statute permits consideration of the survivor’s relationship to the decedent, the decedent’s probable net income available for distribution to that survivor, and the replacement value of the decedent’s services to the survivor. The surviving spouse may recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury. Fla. Stat. § 768.21.

Minor children of the decedent, and all children if there is no surviving spouse, may recover for lost parental companionship, instruction, and guidance, and for mental pain and suffering from the date of injury. Fla. Stat. § 768.21.

Each parent of a deceased minor child may recover for mental pain and suffering from the date of injury. Each parent of an adult child may recover for mental pain and suffering if there are no other survivors. Fla. Stat. § 768.21.

Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them. Fla. Stat. § 768.21.

Florida courts have also explained that, because the Act allows recovery of certain survivor damages from the date of injury, those damages are inclusive of the types of damages associated with a loss of consortium claim. Acands, Inc. v. Redd, 703 So. 2d 492.

Estate damages (examples expressly listed in the statute)

The estate may recover loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors (excluding contributions in kind), with interest. Fla. Stat. § 768.21.

The estate may also recover loss of the prospective net accumulations of the estate (reduced to present money value) in the circumstances specified by the statute. Medical or funeral expenses due to the decedent’s injury or death that have become a charge against the estate (or were paid by or on behalf of the decedent) may be recovered by the estate, excluding amounts recoverable by survivors who paid them. Fla. Stat. § 768.21.

All awards for the decedent’s estate are subject to the claims of creditors who have complied with probate claim requirements. Fla. Stat. § 768.21.

What counts as “services”

Services are defined as tasks, usually of a household nature, regularly performed by the decedent and necessary to the survivors, and are determined under the particular facts of each case. Fla. Stat. § 768.18.

Statutory purpose emphasized in the case law

Florida courts have noted that the primary purpose underlying the enactment of the Wrongful Death Act was to provide recovery to those who need it, specifically the surviving spouse, children, and dependents of the decedent. Fla. Convalescent Ctrs. v. Somberg, 840 So. 2d 998.

Survival versus wrongful death: What happens to the decedent’s personal injury claim?

Florida law distinguishes between a wrongful death action (for survivors and the estate) and a personal injury action that the decedent could have brought if living.

When a personal injury to the decedent results in death, no action for the personal injury survives, and any such action pending at the time of death abates. Sta-Rite Indus. v. Levey, 909 So. 2d 901, Coates v. R.J. Reynolds Tobacco Co., 375 So. 3d 168. Relatedly, Florida courts describe the Wrongful Death Act as remedying injuries suffered by the living (survivors) rather than injuries suffered by the decedent. Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So. 3d 1187, Coates v. R.J. Reynolds Tobacco Co., 375 So. 3d 168.

Medical negligence: limitations reflected in the provided authorities

In a medical negligence context discussed by Florida courts, if the estate establishes medical negligence in a failure to diagnose cancer, section 768.21(8) limits the estate’s recovery to lost earnings, loss of net accumulations, and medical and/or funeral expenses that have become a charge against the estate, and the decedent’s pain and suffering is not recoverable under the wrongful death statute. Stewart v. Price, 718 So. 2d 205.

Separately, Florida’s comparative fault statute states that its greater than 50% at fault bar does not apply to an action for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766. Fla. Stat. § 768.81.

In negligence actions to which the statute applies, a party found to be greater than 50% at fault for their own harm may not recover damages, and the statute expressly states that this bar does not apply to personal injury or wrongful death arising out of medical negligence pursuant to Chapter 766. Fla. Stat. § 768.81.