Under Florida’s Wrongful Death Act, collateral sources include compensation paid to the victim’s survivors as a way to make them whole.
The statute known as “Right of Action” allows surviving family members to file a wrongful death lawsuit when their loved one died due to negligence, recklessness or intentional violence. Per Florida’s collateral source rule, plaintiffs are able to recover compensation for the loss of their loved one to wrongful death without having to worry about those damages being deducted by an amount they already recovered from a third party. In other words, whatever damages the victim’s survivors recover from an insurance company are kept separate from damages awarded to them by a jury in a wrongful death lawsuit.
What Are Collateral Sources?
Collateral sources are any compensation paid to the plaintiffs in a wrongful death action that comes from a party other than the defendant. One of the most common examples is when the victim’s surviving family members receive a settlement from an insurance company.
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What Is Florida’s Collateral Source Rule?
According to the Florida State University Law Review, Florida’s collateral source rule prevents defendants from showing evidence of other sources where plaintiffs recovered compensation in wrongful death and other lawsuits. The law protects plaintiffs by allowing them to recover damages from third parties such as insurance companies while keeping that compensation separate from settlements they receive from the court. The law was codified in the 1980s.
What Is the Florida Wrongful Death Act?
Florida’s Wrongful Death Act refers to Section 768.19. This law states that if a person dies due to another’s negligence, recklessness or intentional act of violence, their surviving family members have a right to file a lawsuit to recover compensation for the losses they have suffered. In Florida, a wrongful death claim can only be brought about by the decedent’s personal representative on the family’s behalf.
Collateral Sources Covered Under the Florida Wrongful Death Act
Various collateral sources are covered under the Florida Wrongful Death Act. They include life insurance benefits, health care services and providers, automobile accident insurance and other possible sources of compensation.
Life Insurance Benefits
Life insurance benefits are common collateral sources covered under Florida’s Wrongful Death Act. If the victim had a life insurance policy, their beneficiaries can recover compensation from it. This money is kept separate from whatever the surviving family members receive as part of their settlement in the wrongful death lawsuit.
Health Care Services and Providers
According to the Harmonie Group/Next Generation, Florida allows health care services and providers as part of the collateral sources in Florida wrongful death cases. The costs accrued while the victim was in the hospital, receiving care, are reimbursed to the surviving family members. This can be separate from what they recover in a successful wrongful death lawsuit.
Automobile Accident Insurance
If a person is killed as a result of reckless driving, a driver under the influence or other situations involving significant negligence or recklessness, automobile accident insurance can be included as a collateral source. Whatever the insurance company pays out to the survivors is kept separate from money recovered in a wrongful death lawsuit.
Other Possible Sources of Compensation
There are various other possible sources of compensation in wrongful death cases. For example, if a person dies while on the job due to extreme negligence, workers’ compensation benefits may go to their surviving family members. State and federal disability payments could also serve as collateral sources in a wrongful death situation.
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Determining Future Damages for Collateral Source Claims
In a wrongful death case, it’s crucial to determine future damages for collateral source claims. This can be done by factoring in the award of damages for personal injury lawsuits, compensatory and punitive damage awards in Florida wrongful death actions, calculating future medical treatment costs and damages, necessary treatment costs to be included in awarded damages and determining the time frame for necessary treatment costs.
Award of Damages for Personal Injury Lawsuits
The majority of damages related to personal injury awards include reimbursement for medical expenses for treatment the victim has already received and future expected treatment. However, other damages include lost wages and lost earning capacity if the victim has to miss time off from work to recover or is no longer able to work at all.
Compensatory and Punitive Damage Awards in Florida Wrongful Death Actions
Florida law allows plaintiffs in wrongful death actions to receive compensatory damages and, in some cases, punitive damage awards. Punitive damages are given to wrongful death victims’ survivors to punish the defendant for egregious actions rather than to make the plaintiffs whole. However, these damage awards are no greater than three times the amount of the compensatory damages or $500,000, whichever is higher.
Calculating Future Medical Treatment Costs and Damages
Future medical treatment costs and damages can be calculated by gathering up all medical bills and itemizing the specific medical treatments and procedures doctors believe a patient might need. Some specifics to include are the costs of surgery and physical therapy if doctors recommend them.
Necessary Treatment Costs to Be Included in Awarded Damages
According to Expert Institute, any necessary treatment costs to be included in awarded damages must be considered reasonable. To prove that they are necessary and reasonable, the plaintiff must show that they needed certain medical treatments, care and services as a direct result of the defendant’s negligence, recklessness or intentional actions.
Determining Time Frame for Necessary Treatment Costs
If a doctor is able to give a definitive time frame for a person’s necessary medical treatment, it gives a better idea of what to expect in terms of cost. For example, a person suffers a spinal injury in a car accident and the doctor believes they can make a full recovery between one and two years. The doctor tells the patient that they should have two surgeries and undergo physical therapy for six months after they heal from the surgeries. The time frame for necessary treatment costs would be an average of a year and a half.
Considerations When Seeking Collateral Source Claims in a Wrongful Death Action
There are factors to consider when seeking collateral source claims in a wrongful death action in Florida. However, the most important one is the liability of the defendant(s) or responsible parties.
Liability of Defendant(s) or Responsible Parties
The liability of the defendant(s) or other parties involved in a wrongful death situation can determine how much compensation the victim’s survivors can recover from collateral source claims. For example, if a person caused the victim’s death in a car accident involving reckless driving, their auto insurance can serve as a collateral source. Another example is a construction worker suffering catastrophic injuries and going on workers’ compensation but later succumbing to them because their employer failed to provide proper safety precautions; the survivors could receive compensation from the workers’ compensation benefits. Whatever the situation, the decedent’s personal representative can still file a wrongful death lawsuit on behalf of the family.
Frequently Asked Questions
What Is Considered a Collateral Source in Florida?
There are many things that can be considered collateral sources in Florida. Health insurance, workers’ compensation benefits, life insurance, auto insurance payments and more are common collateral sources in personal injury and wrongful death cases.
What Are Economic Damages in Florida?
In Florida, economic damages are the damages suffered that carry set monetary amounts. This can include medical expenses, costs of ongoing medical treatment, lost wages, lost earning capacity and property damage.
What Is the Statute of Limitations for Wrongful Death in Florida?
The statute of limitation for wrongful death in Florida is two years. This means that the victim’s personal representative has two years from the date of the person’s death to file a wrongful death lawsuit on behalf of the surviving family members.
What Is an Example of a Collateral Source?
One of the most common examples of a collateral source is when a person suffers injuries in a car accident. In that situation, the person could get compensation from their auto insurance coverage.
What Is the Collateral Source Statute 768.76 in Florida?
Florida’s collateral source statute 768.76 states that plaintiffs are able to recover compensation through collateral sources that are kept separate from any compensation from settlements from a lawsuit. In other words, whatever compensation comes from collateral sources is not deducted from the plaintiff’s lawsuit winnings.
What Are Noneconomic Damages in Florida?
Noneconomic damages in Florida refer to anything that doesn’t carry a specific dollar amount. This includes things like pain and suffering, emotional distress, loss of consortium and loss of companionship.
What Are Compensatory Damages in Florida?
Compensatory damages in Florida are those that have an actual dollar amount such as medical bills, lost wages and property damage.
What Are Examples of Noneconomic Damages?
Examples of noneconomic damages include pain and suffering experienced by a person who sustains a personal injury or emotional distress a wife suffers after the wrongful death of her husband.
Is Workers’ Comp a Collateral Source in Florida?
In Florida, workers’ compensation is considered a collateral source.
What Is the New Tort Law in Florida 2023?
The new tort law in Florida, HB-837, also known as the Florida Tort Reform Act, aims to change the state’s negligence system from pure comparative negligence to modified comparative negligence. This means that even if a person suffers injuries that are over 50% their own fault, they can no longer recover compensation. Previously, the pure comparative negligence rule meant that a plaintiff could recover compensation for their damages even if they were deemed 90% at fault.
What is the Subrogation Law in Florida?
Florida’s subrogation law means that after an insurance company makes a payout, it could seek reimbursement from the at-fault party. For example, a person files a claim with their auto insurance company after a car accident. The other driver was at fault; the insurer could claim reimbursement from that person.
How Much Is a Wrongful Death Lawsuit Worth in Florida?
Florida wrongful death lawsuits are often worth between $500,000 and $1 million.
Is There a Cap on Wrongful Death in Florida?
Florida does not impose caps on wrongful death lawsuit settlements.
How Does a Wrongful Death Settlement Work in Florida?
Wrongful death settlements in Florida are distributed equally among all beneficiaries, which means if the parties can reach an agreement, the court can make that agreement official.
What Is the Rule of Collateral?
The collateral source rule means that if a plaintiff gets compensation from a third party, the defendant is still obligated to pay them the rest of the damages they are due.
Is PIP a Collateral Source in Florida?
Personal injury protection (PIP) benefits are considered collateral sources in Florida but are treated differently from other such sources.
Is Medicare a Collateral Source in Florida?
Medicare is not considered a collateral source in Florida because it’s a government program.