Wrongful Death vs. Survival Claims: Understanding the Difference

When a person is injured in Florida, there are several types of legal actions he or she can take in order to be compensated through the court system. When a person is alive, it is fairly straightforward. The plaintiff sues the defendant. However, things get a little more complicated when the case involves a deceased victim. When a person is killed due to negligence, filing a lawsuit requires a little more work. In these cases, there are two basic ways to bring an action. Each is distinct.

Survival Cases

When people are injured, they typically suffer in some way. They may lose work and be deprived of income. They may experience a lot of pain from the injury and the surgeries and other medical treatments that they must undergo in order to recover. Finally, they may also lose out on a lot of the enjoyment of life, such as seeing children play sports, having physical relations with a spouse, or being able to travel. All of these things are suffered by the victim. Any compensation that the person may be entitled to becomes a part of his estate.

Therefore, should he die before he is able to file a lawsuit, his estate must bring the case against the defendant. Likewise, should the victim die after filing the lawsuit, his estate will continue acting as plaintiff in order to represent his interests and recover compensation for his heirs. But the key here is to understand that any monetary award recovered is for the victim’s losses and injuries, not his family’s, and it will be passed through his estate according to his will or, if there is no will, through Florida’s default rules for inheritance.

Wrongful Death

When people die due to negligence, their families are often significantly affected by the loss. Thus, the law allows the family to bring a lawsuit that is commonly called a “wrongful death” action. Unlike a survival action, a case brought pursuant to the wrongful death statute is one that the family brings in order to recover for its losses. These losses may include loss of the relationships with a loved one, lost wages from that person’s employment, the cost of medical bills, and a host of other less tangible harms that must be compensated.

For a case to be brought under this law, the injuries must directly cause the death. They key consideration here is that the law determines who can bring the case. Since the case is filed to compensate the family, it is not actually an asset of the victim’s estate. Instead, it is paid to the eligible family and heirs.

How to File a Lawsuit in Florida

Florida law is different from a lot of states. In some jurisdictions, the law recognizes that a person can suffer for her injuries individually and have a right to compensation, yet her family may suffer differently due to the victim’s injuries. Therefore, in most places a plaintiff can recover monetary awards under both laws. Although a plaintiff in Florida can certainly sue for both, our state only allows the plaintiff to recover one or the other, not both. Given the complexity of these laws, it is best to schedule a free consultation with an experienced Florida wrongful death lawyer at the Romero Law Firm who can help you understand your options.

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