After the Deepwater Horizon oil rig exploded in the Gulf of Mexico, numerous workers onboard were killed and many others were injured and stranded aboard the burning oil rig for hours while rescuers scrambled to save them. Ultimately, nearly two dozen workers were injured and 11 are missing and presumed dead.
Along with all the other claims stemming from this human and environmental tragedy, family members of the dead have begun filing wrongful death actions in state courts against the wrongdoers under the Death on High Seas Act. While Congress currently considers expanding the narrow rights of recovery granted by the Death on High Seas Act, pursuant to HR5503, this debate brings to mind what rights that a deceased person's loved ones and family members have after negligence, whether it kills one person or many.
The rights available in a wrongful death claim vary from state to state. In Florida, the rights to recovery after a family member or loved one dies because of another's negligence are spelled out in Florida Statute section 768.21 and focus on compensating those who survive the decedent. Persons who may potentially be able to recover under the wrongful death statute include spouses, children, and parents, others dependent on the decedent for support as well as the personal representative for the benefit of the deceased's estate.
What Expenses Are Recoverable Under Florida Law?
Survivors have the right to recover for many expenses including loss of future support and services, which is basically the financial contribution that the deceased would have made to the household or to the survivor. The amount of this award will be calculated based on the life expectancies of the deceased and spouse as well as the length of time until any minor children come of age.
The surviving spouse can also recover for "loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury" - that is, the pain and difficulty that the husband or wife faces after the death of their spouse.
In the case of children, surviving minor children can recover for loss of "parental companionship," including the advice and instruction that children normally receive from their parent and for mental pain and suffering stemming from the parent's death. This is in addition to recovering for lost services and financial support. Adult children can usually recover for these losses as well if the deceased does not have a surviving spouse.
The death of a child may be one of the greatest losses any parent can ever suffer. Parents can recover for mental distress they suffer after the death of their minor child. Parents can also recover for the death of an adult child if the adult child has no other survivors, such as a spouse or child. Unfortunately, in cases of medical negligence, neither adult children nor the parents of adult children can recover for wrongful death claims - a special exception written into Florida law with which many lawmakers disagree.
Medical expenses and funeral expenses must also be paid, usually before a wrongful death lawsuit is settled. Any survivor who pays these expenses may recover for them in the wrongful death lawsuit.
The decedent's legal representative can recover similar expenses as noted above on behalf of the estate of the deceased. Additionally, any of the deceased's creditors that comply with probate law can make a claim on the estate.
A Special Note on Claims for the Victim's Pain and Suffering
In some cases, loved ones may be concerned about the pain and suffering that their relative endured prior to death. Pursuant to Florida law, which focuses on compensating the victim's survivors, the claims that the deceased may have had for pain and suffering die with the deceased and are replaced by rights granted under section 768.21.
But in a few cases, when the deceased did not die from the injuries caused in the accident, but instead died from a different cause such as unrelated negligence by a treating physician, an infection acquired at the hospital, or some other intervening cause, a claim on behalf of the decedent for their own pain and suffering is still permitted. If the deceased's death is attributed to an intervening cause, then the personal representative may pursue a claim for pain and suffering from the date of the accident to the date of death, as well as a wrongful death claim.
Conclusion
Whether someone dies in an explosion aboard an oil rig, in a tragic car accident or because of a defective product or drug, those left behind have questions and need help. While filing a wrongful death claim will not bring back a loved one, it can help to provide financial relief to those survivors and loved ones left to grieve. Talk to an experienced wrongful death attorney about your options.
