Wrongful Death Filing Cases

Filing a wrongful death case is a complex, multi-step process that requires the aid of an experienced law firm, qualified to handle tense, emotionally-wrought negotiations and litigation with skill, poise and extensive resources.

Associates and Bruce L. Scheiner, Attorneys for the Injured, has handled more than 20,000 cases throughout our four decades of dedication to personal injury law. We recognize families that have lost someone precious to them due to the negligence of another are seeking not just financial stability, but accountability and justice.

We commit wholly to every case we take on. We shoulder the burden of an extensive investigation, hiring expert witnesses, wrangling with insurance companies and, when needed, pressing forward with trial.

Wrongful death cases are unique compared to other types of personal injury claims in that filing deadlines are more stringent. Depending on the kind of negligence that led to the untimely death, the notice requirements may be stricter, the burden of proof higher. Families cannot afford to hire an attorney who is inexperienced or will be lax on these points because it could cost them the opportunity to pursue compensation entirely.

Establishing a Personal Representative

Per Florida’s Wrongful Death Act, blood relatives and certain dependents have the right to seek compensation for the death caused by a negligent act or omission. However, certain rules may expand or limit those rights, so it’s important to have an attorney with a firm grasp of probate law, as well as injury law.

Spouses, children and/or parents have the right to file a wrongful death action, but they are not automatically entitled to file a claim in their individual capacity. Only a personal representative of decedent’s estate can file a wrongful death claim.

Sometimes, this person is specifically named in decedent’s Last Will and Testament. If a will does not exist, the issue of who can file becomes a bit more complicated. Wrongful death cases must be litigated in the context of a probate proceeding, so it’s imperative to get this issue right.

A probate estate must first be established.

From there, the court will typically offer the first right of a duty to decedent’s surviving spouse to serve as personal representative. However, if decedent was not married or spouse is unwilling/unable to perform this task, the personal representative will be selected by majority vote among decedent’s heirs.

At that point, the personal representative may file the claim on behalf of other beneficiaries.

F.S. 733.615 allows for joint personal representatives in some cases, and, with few exceptions, decisions cannot be made without the majority reaching a consensus.

In addition to actual and projected financial losses relating to the death, surviving spouses can recover for loss of companionship and protection, as well as for mental pain and suffering from the date of injury. Minor children can recover for loss of parental companionship, instruction and guidance, as well as for mental pain and suffering. Parents of deceased minor children can recover for mental pain and suffering. Parents of deceased adult children can recover for the same, assuming there are no other survivors.

Statute of Limitations in Wrongful Death Claims

While most personal injury actions in Florida must be brought within four years, wrongful death actions have to be filed within two years from the date of death.

While there are some exceptions, there are also several exclusions that could affect that time limit.

For example, if a wrongful death case is pending against someone (defendant) and person dies, plaintiff has to file a court motion to substitute the personal representative of defendant’s estate within 90 days after the death occurs.

In some cases, if the death occurs after the technical statute of limitations for wrongful death but within the four-year window for a personal injury case, it’s possible the court will still accept the case. Similarly, a pending personal injury action may be converted to a wrongful death case without penalty if the injured person dies prior to settlement or trial.

Cases arising from medical malpractice negligence must be filed within two years. However, the time limit can sometimes be stretched to four years, depending on when the malpractice was discovered or should have been discovered.

It’s worth noting any medical malpractice action must meet a high burden of proof standard long before the case ever goes to trial. At least one expert witness must attest to the assertion that the doctor or other health care worker breached the applicable standard of care under the circumstances.

Additionally, in cases involving medical malpractice or a government defendant, there are special notice requirements. A “Formal Pre-suit Statutory Notice of Intent” must be timely and properly filed, or else plaintiffs will lose the right of action.

Contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.

Call 800-646-1210 for a Free Consultation