Damages, Insurance Benefits and Coverage Available In Wrongful Death Claims
There are different types of insurance benefits that may be available to you or other surviving family members if the death of your loved one is caused by a motor vehicle accident. If the deceased had automobile insurance coverage, then these benefits may include:
- Personal Injury Protection (PIP) / Survivor Benefits – Usually, there is at least $5,000 worth of coverage that may go towards funeral benefits for the deceased.
- Funeral Benefits – Available to help cover the cost of the funeral.
- Uninsured/Underinsured Motorist Benefits (UM/UIM) – This coverage will apply if the at-fault driver is uninsured, or if the at-fault driver’s insurance coverage is insufficient to cover all damages. UIM coverage is a “floating layer” of coverage, meaning that it is coverage in addition to the coverage held by the at-fault driver. Florida law states that UM/UIM coverage must be offered in the same amount as a driver’s liability coverage unless rejected in writing. If there are multiple policies then the separate UM/UIM coverage amounts may be stackable. You will need to consult an attorney to make this determination.
There are different types of insurance policies or types of coverage that are held by the at-fault party. These coverage types are extremely important because they will often determine whether a wrongful death case can be successfully pursued.
- Bodily Injury Coverage. You should ask for all policies that covered the at-fault party so you can determine if excess coverage applies on top of the coverage for the owner of the vehicle. Do not trust the opinions or statements made by the insurance adjustor about what policies exist or may apply. Get the policies and make your own determination or have an experienced attorney review the policies.
- Umbrella Policies. These are insurance policies that apply when additional coverage is needed to cover the value of the loss. An umbrella policy offers additional coverage on top of a primary policy, like an automobile insurance policy, boat policy or homeowners insurance policy.
- Business Insurance Policies. As the name implies, these are insurance policies that cover the actions of the business entity and the company employees.
- Personal and Business Assets of the at-fault party. You may need to look at the personal and business assets of the at-fault party to determine whether they are sufficient to pay the value of the claim if insurance does not exist. If the at-fault party is a major corporation or government entity, then they may be self-insured.
Responsibility for Wrongful Death
In order to sue for wrongful death, responsibility must be attributed to the defendant. This means that the defendant’s conduct must have created a direct cause of the deceased’s injuries and death.
Monetary Damages for Wrongful Damages
Under the Florida Wrongful Death Act, compensation is typically awarded to the deceased’s survivors and beneficiaries through the Personal Representative of the Estate.
Compensatory Damages– This is the most common type of damage awarded for wrongful death cases. It includes giving a sum of money that is necessary to replace a particular loss as a result of another’s negligent conduct.
Punitive Damages– These are excessive damages awarded to “punish” the defendant for reckless negligence to deter them from acting in the same manner in the future.
Amount of Damages for Wrongful Death
If the plaintiff succeeds in a wrongful death case, the amount of damages awarded may cover:
- Medical expenses
- Funeral expenses
- Mental or emotional pain and suffering
- Lost support and services once provided by the deceased
- Value of accumulated property owned by the deceased
All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:
- Each survivor may recover the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
- The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.
- Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.
- Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.
- Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.
- The decedent’s personal representative may recover for the decedent’s estate the following:
- 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. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered:
- If the decedent’s survivors include a surviving spouse or lineal descendants; or
- If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent.
- Medical or funeral expenses due to the decedent’s injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).
- Evidence of remarriage of the decedent’s spouse is admissible.
- All awards for the decedent’s estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.
- The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence.