Jacksonville Wrongful Death Attorney

So by the very definition of wrongful death, both negligent and intentional acts are actionable. The legal elements of a wrongful death action that must be proven by a preponderance of the evidence in every case are as follows:

1. Conduct that amounts to a wrongful act, negligence, default, or breach of contract or warranty;
2. The conduct upon which the lawsuit is based must have caused the death of the decedent;
3. The conduct that is the basis of the lawsuit would have entitled the person injured to file a lawsuit and recover damages if they had not died.

At first glance, these elements seem not only easy to comprehend, but also appear to be easy to prove in a court of law. Nothing could be further from the truth. The successful prosecution of a wrongful death case should only be left to a wrongful death expert like attorney Brett Hastings. The following factors are what make a wrongful death action so difficult to prove:

1. Often the most important witness, the decedent, will obviously never be able to provide testimony. So the gathering of all evidence (witness testimony, circumstantial evidence, medical records etc.) in the manner that will be the most persuasive in proving the case must take place immediately, or as soon as possible, after the wrongful death.
2. A wrongful death lawsuit MUST be be filed within 2 years or the lawsuit will be barred by Florida’s statute of limitations. This is really important to know as often people mistakenly believe that the statute of limitations in a wrongful death case is the same as in a negligence case (i.e. four years) in Florida.
3. Before a lawsuit can even be filed, an estate must be setup and a personal representative must be appointed by a probate judge. These are legal protections of the decedent’s interests and cannot be glossed over.
4. Expert testimony will need to be produced in court to establish the monetary damages associated with the loss of your loved one. (See the damages allowed under Florida law below – they can become very complex).
5. The Florida Wrongful Death Act limits who can receive damages as a result of a wrongful death. The two groups that can recover under a wrongful death case are 1) the Estate itself; and 2) the decedent’s Survivors.
   • The Estate is essentially what the decedent left to any beneficiaries under his or her will or others in his or her lineage as defined by the “intestacy” statute. Intestate is a legal word used whenever there is no will.
   • “Survivors” means the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes children born out of wedlock of a mother, but not children born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.

Nothing is more complicated or more critical than the law relating to wrongful death cases in the State of Florida than damages.

Survivors can recover damages for:

1. Lost support;
2. Lost services;
3. Loss of Decedent’s companionship;
4. Loss of Decedent’s protection;
5. Mental pain and suffering;
6. Loss of parental guidance; and
7. Medical and funeral expenses when paid by survivor.

The Decedent’s Estate may recover damages for:

1. Loss of Net Accumulations;
2. Decedent’s Lost Earnings; and
3. Decedent’s Medical and Funeral Expenses.

Florida’s Wrongful Death Act specifically defines “Support”,”Services” and “Net Accumulations.”

1. “Support” includes contributions in kind as well as money.
2. “Services” means tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor, and shall be determined under the particular facts of each case.
3. “Net accumulations” means the part of the decedent’s expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy.
4. “Net business or salary income” is the part of the decedent’s probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent’s personal expenses and support of survivors, excluding contributions in kind.

Initially, “Support,” “Services,” and “Net Accumulations” seem like straightforward matters to prove.  Any lawyer who specializes in wrongful death cases and is an expert like Brett Hastings will tell you that these are all hard fought issues that require hiring the appropriate experts to both investigate and advocate for the damage amounts on behalf of the Estate and the Survivors to insure that they get the justice that they deserve.