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Fort Lauderdale Personal Injury Lawyer > Blog > Wrongful Death > What Are the Challenges in Pursuing a Wrongful Death Claim in Florida?

What Are the Challenges in Pursuing a Wrongful Death Claim in Florida?

Florida wrongful death claim

Many types of accidents cause injuries ranging from minor to serious, but there are some incidents that are so severe that they actually result in death for the victim. You might be aware that Florida personal injury laws cover those who suffer harm in an accident, but survivors may also have legal remedies when a loved one dies. The type of case is called a wrongful death action, and it is a way to recover compensation for your physical, financial, and emotional losses. As with any legal matter, there can be challenges in pursuing a wrongful death claim in Florida.

Any personal injury case can be complex, but there are added difficulties with fatal accident claims. Wrongful death actions involve two prongs, since you must first prove the case. You must then show that you are entitled to recover compensation by virtue of your relationship to the deceased victim. Dealing with insurance companies and possibly going to court are also hurdles that you must overcome.


When you have skilled legal representation, you know your case is in good hands in terms of tackling the pitfalls. Experienced Florida wrongful death lawyers are prepared to leverage appropriate strategies and ensure a smooth legal process. An overview of some key challenges and legal points is also useful for helping you know what to expect. 

What is a Florida Wrongful Death Case?

A wrongful death case is a type of personal injury case, except that the victim was killed instead of just being hurt. These claims are governed by the Florida Wrongful Death Act, and some important points about the law include:


  • The statute covers all acts of wrongful conduct, negligence, breach, or default, so both accidents and intentional misconduct could be the basis of a case.
  • The Act states that the at-fault party for a fatal accident is still liable as if the victim did not die as a result of the incident. 
  • In a successful wrongful death action, survivors will be able to recover monetary damages. A surviving spouse, children, and parents are considered survivors, as are any blood or adoptive relatives who were dependent upon the deceased victim.
  • The statute of limitations for a Florida wrongful death case is two years, and it begins to run on the decedent’s date of death. This law is different from personal injury cases, where the statute of limitations starts on the date of the accident. 

Common Causes of Fatal Accidents

Wrongful death claims may include fatalities from accidents and intentional conduct like criminal homicide. The US Centers for Disease Control and Prevention (CDC) reports that unintentional fatalities are the fourth-leading cause of death in the US. Almost 225,000 people are killed every year, leading to devastating losses for entire families. Some additional facts reveal the most common causes of unintentional death:


  • In 9 out of 10 age groups, the top cause of accidental death is traffic crashes. Around 38,000 people die in car, truck, and motorcycle collisions annually. Survivors may have a wrongful death claim against the driver who caused the accident.
  • Approximately 44,700 are killed because of falls every year in the US, making them the #3 cause of death. Many elderly people are among the victims, and nursing homes may be liable for neglect and abuse in a wrongful death case.
  • CDC statistics reveal that the top cause of unintentional death is poisoning, and many of these cases are linked to medication errors and overprescribing medications. Opioids are an example where physicians may be negligent and liable in a medical malpractice suit.

Proving a Wrongful Death Case

Because there are two separate components to a Florida wrongful death claim, you should know what will be required to establish your case. First, you need to show that you have a case. The Wrongful Death Act applies to negligent conduct, so you must prove that the at-fault party caused the fatal accident by breaching the duty to act with reasonable care. The statute also covers intentionally wrongful acts, so your evidence must show that the victim was killed as a direct result of the offender’s conduct. 


The second component to a wrongful death case is standing, which refers to a person’s legal authority to sue the at-fault party. In Florida, the personal representative of the decedent’s estate has the power to bring a wrongful death claim. This may be someone named in a will or an individual appointed by the probate court in an estate without a will.


However, regardless of who acts as personal representative, that individual seeks damages for the benefit of survivors and the estate. Often the personal representative is also the surviving spouse, parent, or child.

Challenges with Wrongful Death Claims in Florida

Some of the hurdles with wrongful death cases are similar to other personal injury claims, especially when it comes to the legal process. In most situations, you will be dealing with an insurance company to pursue your rights. Homeowners, businesses, health care providers, and property owners carry liability insurance to protect against losses. Plus, motorists are required to have the minimum auto insurance coverage in Florida.


Insurers are businesses that strive to minimize losses and maximize profits. They will serve their own financial interests instead of yours. The company may deny your claim or offer a lowball amount on the grounds that:


  • Their policyholder did not cause the fatal accident.
  • You do not have proper standing to sue for wrongful death.
  • The decedent’s death was not related to the accident or criminal act.
  • You did not have sufficient proof of your losses.


Another challenge in pursuing a wrongful death claim is related to evidence. The primary witness for the case has passed away because of their injuries, so it is not possible to rely on their testimony. You will need to rely on a Florida wrongful death lawyer to prove the case through other solid evidence, including pictures, medical records, and statements from other witnesses.

Important Facts About Fatal Accident Cases

There are additional issues to keep in mind with wrongful death claims, though they do not have to be challenges when properly addressed. For instance:


  • Florida follows the law of comparative fault with personal injury cases, including wrongful death actions. If the decedent was at fault in causing the accident, compensation is reduced by their percentage of fault. When the deceased person was 50 percent or more to blame, compensation is barred.
  • There is a cause of action that is related to a wrongful death case termed a survivor action. With this type of case, it is possible to recover compensation for damages the decedent would have obtained had they survived.
  • With a survivor action, it is possible to recover amounts for pain and suffering that the decedent sustained before death, after the accident. Reviewing back to the statute of limitations, the date of death is when the clock starts. There could be many months or years in between the accident and the fatality, during which the deceased individual may have suffered severely.

Steps in the Legal Process

Because you are dealing with an insurer, you will file a wrongful death claim with the company that provides coverage to the negligent policyholder. You must include all information related to your losses and suffering by the deceased person, as well as details regarding the fatal accident. In many cases, the insurance company may settle for a fair sum. However, if the insurer will not agree to pay a reasonable amount for your losses, you will need to go to court.


A Florida wrongful death lawyer will assist with the steps in the legal process, including:


  • Collecting and organizing evidence;
  • Preparing claims forms and a demand for compensation;
  • Negotiating with the insurance company in an attempt to resolve your claim out of court;
  • Advocating on your behalf during mediation, which is a proceeding that aims to help resolve disputes through a trained mediator; and,
  • Filing a complaint in court for a wrongful death lawsuit.


During litigation, your attorney will represent you at court hearings and work on discovery matters, including depositions. At the trial, a wrongful death lawyer will present evidence, exhibits, and witness testimony to convince the jury to side with you.

Damages in Florida Wrongful Death Claims

Though the deceased person is certainly a victim of a fatal accident, wrongful death laws in Florida treat the survivors as the victims. Those left behind after the decedent’s death also suffer when that person is no longer around. There are multiple types of compensation you can recover for wrongful death:


  • Economic Damages: This category includes compensation for tangible losses that can be measured in dollar value. Examples are medical costs for the decedent’s last illness, funeral expenses, and burial services.
  • Noneconomic Damages: Some losses do not carry a dollar value, though surviving loved ones certainly suffer. It is possible to recover for losses of consortium, guidance, love, affection, education, and future earning capacity.


In cases involving criminal acts, it may be possible to recover for punitive damages, which aim to punish the offender for wrongdoing.

Discuss Your Options with a Florida Wrongful Death Attorney

While there may be challenges in pursuing a wrongful death claim in Florida, you can see that having experienced legal counsel on your side will help you with pitfalls. At Rosen Injury Law, P.A., our team is ready to fight for your rights and ensure you receive the top compensation allowed by law. Please contact our firm to set up a consultation with a Florida personal injury attorney. After reviewing the details of your case, we can provide personalized advice on how to move forward.

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