Articles Posted in Wrongful Death

In car accident cases, the jury relies on the evidence presented at trial to determine whether the defendant should be held liable for the plaintiff’s damages, and if so, what compensation the plaintiff is owed. While economic losses incurred for medical treatment or repairing a vehicle are easily calculable, determining appropriate damages for non-economic harm such as pain and suffering is less straightforward. Rather, in assessing the appropriate compensation for pain and suffering a jury will usually rely on the injured party’s testimony and an account of how the accident occurred.

Until recently, it was unclear whether a plaintiff could produce evidence of how an accident occurred to establish pain and suffering in a wrongful death case. A district court applying Florida law just ruled, however, that plaintiffs in a wrongful death case could submit evidence regarding the way a fatal car accident occurred to show their pain and suffering. If you suffered the loss of a loved one due to a South Florida fatal car accident you should speak with a capable South Florida wrongful death attorney regarding the facts of your case and what damages you may be able to recover.

Facts Regarding the Accident

Reportedly, the defendant driver was a 99-year-old man who was known to be a dangerous driver. At the time of the accident, he was driving a large recreational vehicle without working headlights on the wrong side of the road at night, when he struck the plaintiffs’ decedent’s car. The decedent ultimately died due to her injuries, after which the personal representatives of her estate filed a wrongful death claim against the defendant driver’s estate. The defendants conceded liability but argued that the plaintiffs should not be permitted to introduce evidence regarding how the accident occurred. The plaintiffs and the defendants both submitted motions regarding what evidence should be admitted.
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After a man died from alcohol withdrawal and heart failure while incarcerated in a Florida jail, his representatives brought a wrongful death claim against several different parties. The deceased, through his representatives of course, alleged deliberate indifference, wrongful death, and excessive use of force. The defendants filed motions to dismiss these claims. At this point, in order for the case to move forward, the plaintiff only needs to prove that the claims he charged are sufficient on their face to make a claim against the parties. In other words, if the court takes all of the facts alleged by the plaintiff as true, the parties would be guilty of the violations alleged. In court the actual facts will be determined.

Deliberate Indifference

In order for a deliberate indifference claim to stand, a plaintiff needs to prove that there were “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Essentially, a plaintiff needs to prove that the care or response they received was so bad that it constituted a wanton and unnecessary infliction of pain. This is a much higher standard than the standard for something like medical malpractice, which just requires negligence. For deliberate indifference the plaintiff also must prove that the people who acted cruelly were aware that there was a substantial risk of harm.

Generally, people injured at work are unable to sue their employers directly and will instead be eligible for workers’ compensation. However, there are exceptions to this general rule. If you or a loved one have been injured at work, you should contact a skilled South Florida workers’ compensation attorney as soon as possible. There may be benefits that you are entitled to receive.Workers’ Compensation

Workers’ compensation is a program that shields employers from most kinds of civil liability. When someone is injured at work, instead of bringing suit against their employer, as they would in most kinds of personal injury cases, employees bring their cases to workers’ compensation. Essentially, workers’ compensation is an insurance policy for employers. They are required to pay into it, and then when a worker is injured, the program will pay benefits to the injured party. In many cases, it is beneficial to fall outside the workers’ compensation scheme because it allows a plaintiff to sue the employer or others in civil court. In this case, a man was working inside a cement mixing box when another employee started the machine, killing the man.


The Florida Third District Court of Appeals recently heard a case that addressed whether a gun manufacturer was liable for the death of a young man after a gun they manufactured allegedly had defects. The family of a young man who shot himself in the eye, causing his death, brought this action under a wrongful death theory. They alleged that the case should be able to move forward even though gun manufacturers are typically immune from wrongful death lawsuits. If a loved one has died due to the negligence or recklessness of someone else, you may be able to recover damages. Contact a qualified South Florida wrongful death attorney as soon as possible.Facts of the Case

This case came to the appeals court after a lower court granted a motion for summary judgment for the gun manufacturer. The parents of the young man who died after the gun discharged put forth the theory that his death was not suicide but instead caused by a defect in the gun. They argued that the gun had a defective design and did not have an effective way to prevent accidental discharge after it is dropped. The gun manufacturer argued that they were immune from this kind of suit due to a federal law barring actions against gun manufacturers for harm due to the criminal use of the firearms. The lower court agreed with the gun manufacturer and dismissed the case.

Protection of Lawful Commerce in Arms Act

If a person is injured while working, her or his injury and expenses are likely covered through the benefits outlined in Florida’s Workers’ Compensation statutes.  In exchange for providing a path to medical care and financial relief quickly, an employer is rewarded with immunity from civil action.  This helps the employee to feel assured the accident is covered and ensure the employer is confident business can move on without extensive litigation.  Florida’s statutes provide an exception to this immunity.  The immunity fails when an employer commits an intentional tort that causes the injury or death; or the employer engages in conduct knowing based on certain events in the past, death or injury was almost certain to occur.  The immunity does not extend to fellow employees when they act with such willful and wanton disregard or gross negligence to have caused the accident. 

The Florida Fifth District Court of appeal recently tackled the question of whether one of the exceptions to the immunity applied in an industrial accident.  The parents of a mill-worker filed suit against his employer and fellow worker after he died while inside the mixing box of a cement-mixing pug mill.  The parents alleged the other employee began operating the mill without checking to see if he was still inside first.  The defendants sought summary judgment in its favor, arguing the claims were barred by workers’ compensation immunity.

The trial court granted the motion, finding there was no genuine issue of material fact and the defendants were entitled to a judgment as a matter of law.  The trial court looked at whether the exceptions applied, and determined they did not.  The parents appealed, arguing this was in error.  The court analyzed the three elements needed to reach one of the exceptions to the immunity against the facts found in Gorham v. Zachry Indus., 105 So. 3d 629, 633 (Fla. 4th DCA 2013).

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If a crew member suffers an accident or death while working on board or nearby for a ship, she or he has access to legal relief under federal statutes.  Federal maritime law covers a variety of vessel and dock issues, but is not the only avenue toward obtaining damages.  A recent state appellate case reveals how an injured party or an estate can pursue action in the state’s civil court system for a death that occurred more than three miles off of Florida’s coast. Florida wrongful death and maritime law can be a complex area where it is beneficial to have an attorney guide you through the process of filing suit.    

The decedent was a crew member for a scuba dive charter boat.  On the night he died, he was helping assist customers taking a night dive.  Adverse currents swept some of the divers up to a half mile away, so he snorkeled to guide them back to the boat.  The crew member suffered a heart attack while doing so.  The crew member’s wife filed suit against the dive center and the captain of ship, alleging negligence, unseaworthiness, state tort negligence against the dive center, Death on the High Seas Act (DOHSA) against the dive center, state tort negligence against the captain, and DOHSA against the captain.

The defendants filed motions to dismiss, arguing the cause of action was controlled by DOHSA as the death occurred more than three nautical miles away from shore.  The deceased’s wife countered the death took place within Florida’s territorial waters, which extend past the three nautical miles to the edge of the Gulf Stream.  The trial court took judicial notice the wreck was 6.5 nautical miles from the shore and granted the defendants’ motions to dismiss, agreeing with the defendants’ assertion that remedies under DOHSA were only available in federal court. 

The Fifth District Court of Appeal reached an interesting conclusion in Case No. 5D16-2794 in a Florida wrongful death case involving a corporate pizza chain, its franchisee, and a widow who was not married to the decedent at the time of the accident.  The decedent was first injured in a serious car accident after he swerved into the median to avoid another car that pulled in front of him.  This move caused his car to drift back over into his lane and flip a couple of times.  The driver became a quadriplegic as a result.  The other car was driven by a pizza deliveryman.  A month after the accident, the injured person filed suit against the driver, the owner of the pizza shop, and the pizza corporation, claiming the driver was negligent and the franchisee and corporation were vicariously liable for the deliveryman’s negligence. 

Within a year of the accident, the injured person married his girlfriend, who was a passenger at the time of the accident.  Soon after that, he died, and his wife became the personal representative of his estate.  She continued with the original action and included a claim for wrongful death damages as the injured person’s surviving spouse.  The franchisee settled its part of the claim with the deceased’s spouse for $1 million.  The pizza corporation filed many motions for summary judgment that argued the widow was not a surviving spouse under the Wrongful Death Act because she was not married to the decedent at the time of the injury, that it was not vicariously liable because it did not exercise control over the franchisee’s day-to-day operations, and that all but one claim for medical and hospital expenses were barred because no claims had been filed in the probate proceeding.  All of the motions but the medical expenses were denied, limiting the surviving spouse to only recover $1,165.67 for the expenses claimed.

At trial, the jury found against the pizza company, finding the franchisee was an agent of the corporation, the driver’s negligence was 90% of the cause of the deceased’s injury and eventual death, and the total expenses for the home renovations necessary to accommodate the deceased’s injuries were over $100,000.  The jury also awarded the widow $10 million for loss of companionship and mental pain and suffering as a result of her husband’s death.  The company sought a directed verdict and a new trial, arguing the closing argument was improper. 

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Section 627.727, Florida statutes delineates the requirements for (UM) uninsured motorist coverage – specifically how an insurer must document the rejection of coverage. The insured can select UM coverage lower than the bodily injury liability limits of the policy or reject coverage entirely, but she or he must do so through writing. In a recent Florida car accident case, No. 4D17-332, the court looked at whether an insurance company failed to follow the UM statutory guidelines. The insured purchased uninsured motorist (UM) coverage for two vehicles. He filled out an online form, which did not allow him to sign anything, nor did it provide the ability to reject or deselect non-stacked coverage. The signing page also did not have warning language, as required by law. The appellate court determined the insurer failed to comply with the written notice provisions, and as a result, the insured did not knowingly reject stacked coverage or accept non-stacked UM coverage.

The trial court judge found the documentation used by the insurance company did not comply with the specificities of Florida statute 627.727. The written notice with warning language was to be in a 12-point font and signed by the insured. The warning page did not have a signature line for the insured and was not signed by the insured. A different page had a signature but only incorporated the required warnings by reference. The judge also noted the online form did not allow a user to un-select the automated waiver of stacked coverage. The judge granted the insured’s motion for summary judgment, and the insurer appealed. The insurer did not argue against any of the judge’s findings on appeal, instead claiming the policy-holder orally rejected the stacked UM coverage. The case went on to be tried on the oral rejection issue alone, with a jury verdict in favor of the insurance company.

Section 627.727, Florida statutes is filled with very specific requirements preceded by the word “shall,” strictly limiting the interpretation to what is within the body of the statute. The appellate court noted this was all written with the intent to promote UM coverage and avoid costs borne by the taxpayer after car accidents. The court stated the legislature understood the short attention span of the average consumer and the need for essential information to be relayed efficiently and prominently, thus coming up with the specific requirements. Various appellate courts and the state’s supreme court reviewed these statutory mandates and found them to be acceptable. The legislative history shows this to be a compromise between keeping drivers adequately covered in the event of a UM accident and the insurance companies’ competition.

The Florida District Court of Appeal recently issued a decision in an appeal stemming from a final arbitration in a Florida wrongful death medical malpractice case. The arbitration panel awarded economic damages for loss of companionship and guidance to the husband and child of a deceased woman. They also awarded the maximum statutory limitation for the non-economic damages of lost support. The defendant hospital appealed the damages in favor of the deceased’s relatives, claiming the panel erred in its award.

The estate filed suit against the hospital and treating doctor, alleging their collective negligence led to the death of the pregnant woman. The estate agreed to participate in a binding arbitration to determine damages, pursuant to section 766.207 of the Florida Statutes (2014), which sets limits on the amount of damages awarded. Noneconomic damages are limited to a maximum of $250,000 per incident, for each claimant. Net economic damages are offset by any collateral source payments and include 80 percent of wage loss and earning capacity and past and future medical expenses, among others.

The parties agreed to the maximum $250,000 each in noneconomic damages for the husband and daughter, so the arbitration panel reviewed what should be awarded for loss of services, support, and attorney’s fees. On appeal, the hospital argued the estate expert’s inclusion of loss of guidance and companionship analysis was an attempt to value non-economic damages, which had already been awarded. The hospital also objected to evidence offered of the wife and mother’s goals and aspirations through a vocational expert as an effort to go around the cap on noneconomic damages.

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Florida allows parties to utilize arbitration to bypass the civil court system. If two parties agree through a formal contract, they can use an arbitrator to decide any conflict that arises during the course of their relationship. The decision by an arbitrator would be as binding as if a decision were rendered through the state’s system. This month, the state’s Fifth District Court of Appeal assessed an arbitration agreement at a health and rehabilitation center following the death of a resident.

The deceased entered the defendant facility in 2015, when her daughter and power of attorney signed an admission agreement that included an arbitration agreement. This agreement stated the parties would use arbitration to settle any disputes, waiving the right to resolve the matter in a court of law. The resident died a little over a month after her admission, and the estate filed a Florida wrongful death case. The estate specifically alleged the center failed to comply with the Florida Nursing Home Resident’s Rights Act. The center moved to compel arbitration, per the agreement, but the estate responded by claiming the agreement signed was void.

The estate first argued the arbitration agreement was void because it required the application of the Alabama Rules of Evidence, even though the center was in Florida and required the application of Florida’s laws of remedies, evidentiary burden of proof, and substantive law. The estate asserted this wrongly limits the ability to recover compensatory damages because Alabama limits recovery for wrongful death to punitive damages. The estate then pointed to the required application of the Alabama Rules of Civil Procedure to pre-hearing discovery, which also incorrectly limited the estate’s discovery to omissions or negligent acts identified at the beginning of the lawsuit. The trial court agreed with the estate and found the agreement was void and against public policy. The court found the provisions could not be severed from the agreement because it would create confusion about which rules of evidence to apply. The center appealed.

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