In our last post, we started discussing wrongful death lawsuits and the special statutes that govern them. As we discussed in that piece, all possible claims in a wrongful death lawsuit must be grouped together as one case and filed at the command of the Personal Representative (PR) of the decedent’s estate. This arrangement is intended to ease some of the strain that multiple individual lawsuits would place on the court system, to help ensure an equitable outcome to all damaged parties and to protecting the defendant, in the case, from having to try and fight several separate suits at one time.
To this end, the Florida Wrongful Death Act gives very specific guidelines, especially where it concerns who is allowed to seek damages. In this article, we will begin to take a cursory look at who is allowed to be a party to one of these rather unique types of cases.
The Estate
The primary complainant in a wrongful death lawsuit will always be the deceased person’s estate, as represented by the PR. Damages such as lost time and wages, medical and funeral expenses, legal fees etc will be paid to it and used to satisfy any debts that the estate may owe prior to the settlement being distributed to the heirs.
All survivors’ claims will be considered subsequent to the primary case.
Family
As you would expect, the decedent’s immediate family is entitled to make a claim. This would include their spouse, children, parents and possibly their siblings or other relatives. All of these are automatically covered under the Florida Wrongful Death Act.
Non-Family?
Where it can become a little confusing is where children who are born out of wedlock are concerned. In these cases, the law recognizes the child of a woman, but may not recognize the child of a man, unless he has acknowledged the child as his own or has provided support or services to the child.
Where some people may become confused is that support doesn’t necessarily mean monetary support. It can be in the form of gifts, or any other form of contribution to the welfare of the child. Then we have to consider what the courts would define as services. These can be just about any action taken on behalf of or in service to the child. It could be helping with schoolwork, emotional support as in heart to heart talks, or even playing in the park with a child, buying them groceries or cleaning the house for them. All these and many other instances can be interpreted by the court as support and/or services and qualify a child as a rightful party even though there may be no proof of paternity.
After the establishment of a Personal Representative, compiling a list of all possible claimants and their relationship to the deceased should be the next order of business. It is only after this list has been compiled that the full damages can begin to be assessed and it must accompany the documents that will be filed with the court.
Remember, it is not your duty to eliminate anyone from this list. The defense will have an opportunity to challenge anyone that they feel should not be included in the lawsuit. Look to your attorney for guidance on a case by case basis, but as a general rule, anyone with a possible claim should be included.