Broward Injury Lawyer Blog
In any Florida wrongful death lawsuit, we’ll need to decide which claims are viable – and who the claimants should be, as only certain individuals and entities have a legal right to pursue damages after someone’s death. With some exceptions, these include the decedent’s:
- Surviving spouse;
- Children in being at death (with the law considering them minors until age 25 and no recovery allowed for adult children if action is based in medical malpractice);
- Parents of a minor child under 25 (may recovery mental pain and suffering);
- Decedent’s estate.
That last one can be tricky because it may ultimately benefit some of the same survivors who collected under other claims. While survivors may claim lost wages and loss of consortium, the estate in some cases may have a separate claim that might consist of lost earnings, lost net accumulations and medical or funeral expenses. An estate’s lost earnings of decedent would span from the date of injury to the date of death – less any amount of monetary support – that a survivor lost during that period.
As noted in the Fla. 3rd DCA case Continental National Bank v. Brill in 1994, the allocation of settlements between the estate and any survivors is critical because there are various liens that may attach to an estate from creditors, but those liens won’t attach to the recovery of individual survivors.
In a recent case out of New Mexico, the state supreme court there considered whether a decedent’s surviving spouse and children (plaintiffs) should be entitled to a new trial, as they requested, after jurors awarded zero damages to decedent’s estate (despite awarding damages on individual loss-of-consortium claims), or whether they’d waived that right by failing to raise objection to the jury’s verdict prior to the jury’s discharge.
Plaintiffs sued after decedent, a 48-year-old ironworker, was killed while working on a construction project to build a new movie theater. Defendant construction company was the general contractor for the project. Decedent fell off a 30-foot wall while erecting steel framework and hit the ground headfirst. He was pronounced dead soon after. His surviving spouse filed a wrongful death lawsuit against the general contractor in three capacities: personal representative of decedent’s estate, as next-of-friend to the pair’s minor daughter and individually as the surviving spouse. Decedent’s adult sons also joined the action as plaintiffs. They asserted negligence and premises liability and sought damages for wrongful death and loss of consortium.
Both sides presented conflicting evidence about the strength of his family ties and the importance of his financial support.
The jury awarded both compensatory and punitive damages to plaintiffs, assigning 45 percent fault to the general contractor and 30 percent fault to decedent’s employer (not a party to this case, per exclusive remedy provisions of workers’ compensation law) and 20 percent fault to worker himself. Jurors awarded $482,000 to surviving spouse, $50,000 to minor daughter and $25,000 each to his two adult sons – and $10,000 for each plaintiff in punitive damages. However, they also entered $0 for compensatory and punitive damages damages suffered by decedent’s estate.
Neither party objected and the jury was discharged.
Two weeks later, plaintiffs filed a motion for anew trial on the grounds that the $0 for the estate wasn’t supported by evidence. District court judge concluded that while a jury instruction may have been confusing or incorrect, plaintiffs waived any right to appeal on this because they didn’t object before the jury was dismissed. The New Mexico Supreme Court agreed.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
Saenz v. Ranack Constructors, Inc., April 30, 2018, New Mexico Supreme Court
More Blog Entries:
Liability When Poor Road Conditions, Construction, Cause Florida Car Accident, April 9, 2018, Florida Wrongful Death Lawyer Blog
