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Wrongful Death Damages

Wrongful Death Damages

The Types of Damages Survivors Can Collect in a Wrongful Death Lawsuit

In a lawsuit filed pursuant to the Florida Wrongful Death Act (FWDA), the Personal Representative of the decedent’s estate acts as the party plaintiff in the case, so the official jury award for all wrongful death damages is given to the Personal Representative.  As in all civil lawsuits, the plaintiff is paid the jury award.

The amount of that jury award, as decided by the jurors, will be the total amount that fairly and adequately compensates both (1) the decedent’s estate as well as (2) the Survivors for (a) their damages as well as (b) damages the Survivors are reasonably certain to incur in the future.

If the cause of action provides for punitive damages, and the evidence submitted at trial supports the plaintiff requesting punitive (punishment) damages, then they can also be awarded by the jury in a Florida Wrongful Death Lawsuit.

Procedurally, the jury will tally each kind of damage for each Survivor as well as the estate.  The jury will then render its verdict by writing down the total number of dollars and cents to be awarded for each specific type of damage claimed by the plaintiff for both the estate and the Survivors.

The jury verdict can include:

1.  Damages for the Estate of the Decedent

The decedent’s estate may be awarded the following three types of wrongful death damages:

Lost earnings

The estate of the decedent is entitled to recover the total amount of earnings, (i.e., wages, salary, royalties, commissions, etc.) that a decedent was unable to earn from (1) the date of injury to (2) the time of death.

If the decedent received any monetary support during this time frame, it must be deducted from the gross lost earnings calculation prior to the award proceeds being delivered to the decedent’s estate.

Lost accumulations

The decedent’s estate is also entitled to an award of net accumulations.  Florida Statute 768.21(6)(a) .

Net accumulations are calculated by taking part of the decedent’s net income after taxes, including any pension benefits, and deducting personal expenses and money paid for the support of the Survivors. Any income from Investments continuing beyond the date of the decedent’s death is not considered in the calculation.  See, Vildibill v. Johnson, 492 So.2d 1047 (Fla. 1986).

Medical or funeral expenses

The third type of wrongful death damages that may be awarded to the decedent’s estate in a wrongful death lawsuit is his or her medical and funeral expenses.  These must be expenses due to the decedent’s fatal injuries or death.

These may also be expenses invoiced against the estate, or which were paid by or on behalf of the decedent by a third party other than a Survivor.

2. Damages for the Surviving Spouse, Children, or Parents

The Florida Wrongful Death Act recognizes that the grieving Survivors will have sustained damage and harm which cannot be calculated in the same way as medical expenses or funeral costs.

These damages may be awarded to the Personal Representative for the benefit of the surviving spouse, the decedent’s surviving children, as well as the surviving parents of a deceased child who have no exact standard for fixing the compensation to be awarded.   Florida Statute 768.21(6)(a)

For the following types of wrongful death damages, the jury must issue a jury award that is fair and just after considering the supporting evidence admitted into the record by the Personal Representative at the wrongful death trial. These damages include:

Damages for the Surviving Spouse

The widow or widower is entitled to a jury award for (1) their loss of companionship and protection due to the wrongful death of their spouse.

The surviving spouse is also entitled to a jury award for (2) their mental pain and suffering caused as a result of the decedent’s fatal injuries and death.

In calculating the amount of surviving spouse damages to be awarded, the jury can consider how long each would have lived, i.e., the joint life expectancy of both the decedent and the surviving spouse. The jury is allowed to assume the surviving spouse’s loss will continue until their passing.

Damages for the Surviving Child

Each surviving child is entitled to wrongful-death damages based upon (1) the loss of parental companionship, instruction, and guidance.

Each surviving child is also entitled to a jury award for (2) their mental pain and suffering as a result of their parent’s final injuries and death.

When calculating the damages for the surviving child, the jury considers the joint life expectancy of the deceased parent and each surviving child along with all other evidence presented at trial.

Damages for the Surviving Parent of a Child

When a child has died, the resulting Wrongful Death Lawsuit can provide damages to the parents as recompense for the mental pain and suffering they have experienced as a result of the injury and death of their child.

The jury is allowed to consider the life expectancies of each parent along with all other evidence presented in the case.

3.  Damages Available To All Survivors

There are damages available to all Survivors in a Wrongful Death Lawsuit no matter how they are related to the decedent.  These include:

Lost Support and Services

Each Survivor named in the Wrongful Death Lawsuit is entitled to receive past and future loss of support and services provided by the person who has passed away.

Here, the jury must consider (1) the Survivor’s relationship to the decedent, as well as (2) the amount of the decedent’s net income available for distribution to the Survivor; and (3) the replacement value of any and all services provided to the Survivor by the decedent must be calculated.

Support is defined under the FWDA to include not only (1) money but (2) contributions in kind.

Services are those tasks done on a routine basis by the deceased for the Survivor “usually of a household nature,” which now will be a necessary expense for the Survivor because of the deceased’s passing.   These services may vary according to the identity of the decedent and Survivor and shall be determined under the particular facts of each case.   Florida Statutes 768.18(4).

Future lost support and services can be included in the jury’s award.   When calculating the future damages, the jury considers the joint life expectancy of the Survivor and the deceased person.

For any child that does not suffer from a disability, their childhood is considered to end at the age of 25 years. Children suffering from a disability that made them dependent upon their parent at the time that the parent passed away will have their calculation established based on how long they would have remained dependent upon their parent past the age of 25.  Florida Statute 768.18(2).

Medical and Funeral Expenses

Any medical expenses or funeral costs paid on behalf of the deceased person by a Survivor can be included in the wrongful-death damage award paid to that Survivor under the Florida Wrongful Death Act.   Florida Statute 768.21(5).

What if There Are No Survivors? Damages to the Estate

When there are no Survivors, as that term is defined under Florida Statute 768.18, the Personal Representative of the decedent’s estate must still file a Wrongful Death Lawsuit.

The lack of Survivors does not exclude the right to recovery of wrongful death damages by the estate itself.  If circumstances warrant the claim, then the Personal Representative must file a wrongful death lawsuit in order to recover damages on behalf of the estate.

In Wrongful Death Lawsuits with no Survivors, the decedent’s estate may claim the following wrongful-death damages:

  • Loss of earnings from the date of injury to the date of death.
  • Medical or funeral expenses due to the decedent’s injury or death that have become a charge upon the estate or were paid by or on behalf of the decedent.
  • Net accumulations. Here, “net accumulations” are calculated as part of the decedent’s net income after taxes including pension benefits (excluding income from investments continuing beyond death) which the decedent would have left as a part of his estate if he had lived to a normal life expectancy.

Deductions from the Jury Award of Wrongful Death Damages

After the jury calculates the total amount of wrongful death damages available to both the estate and the Survivors, the jury verdict is returned to the trial court judge. For an example of the form filed out by a jury to delineate the final jury verdict presented to the judge, see the Florida Supreme Court Model Jury Verdict Form for Wrongful Death Damages.

The judge will review the jury’s verdict.  It is the judge who enters the final judgment in the case.  The final judgment is the official document presented to the defendant (and their insurance carrier) that has the power to demand payment of the jury verdict.

Judgment Less That the Verdict

There are circumstances where the judge will sign a final judgment based on the Jury’s Verdict that is less than the total award calculated by the jury.   Under the law, the judge must deduct certain sums from the total amount of damages awarded by the jury when there are things established at trial like comparative negligence.

For example, the jury may find the negligence of a party other than the defendant contributed to the injuries or death of the deceased.  The jury may decide the defendant is only 85% liable.  Here, it is the duty of the judge to deduct 15% from the total amount of damages awarded by the jury, as the percentage of negligence the jury found attributable to the third party.

Why is this the judge’s duty?  Florida law places this responsibility on the trial court judge in a personal injury lawsuit.  While the jury may be instructed to apportion fault in a wrongful death case based upon a negligence cause of action, it cannot apportion the wrongful-death damages. Florida Statute 768.81; see  Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996).

Reduction of Damages to Present Value

There are some wrongful death damages that can be awarded by a Florida jury which must be changed to reflect the present value of money.  This involves jury awards for future earnings and future losses that the Survivors will experience in the future.  These damages include:

  • loss of earnings
  • the estate’s loss of net accumulations
  • any other future economic loss

This will be the duty of the jury, not the judge, and they will be provided a Jury Instruction by the judge on how this is to be done before they enter the jury room to begin deliberations.

The jury will be instructed  “the present money value of future economic damages involves the sum of money needed now which, together with what that sum will earn in the future, will compensate (claimant) for these losses as they are actually experienced in future years.  Any amount of damages which you allow … should be reduced to its present money value and only the present money value of these future economic damages should be included in your verdict.”  Florida Jury Instruction 502.7.

As for the method of computing the present value of money, there is no specific and standardized model to be used that accounts for things like inflation.  Neither the Florida Legislature nor the Florida Supreme Court has decided upon a sole method to be used here.

One approach may be akin to calculating the cost of an annuity.  See, Delta Air Lines, Inc. v. Ageloff, 552 So. 2d 1089 (Fla. 1989). Another approach is to use a lost stream of income approach.  See, Loftin v. Wilson, 67 So. 2d 185 (Fla. 1953).

Accordingly, since there are several different approaches that have been approved by the appellate courts, the judge will decide how best to instruct the jury on the approach to be used.   The jury can be given evidence to support a finding under any one of these various approaches, as well as by arguments of counsel.   See, Seaboard Coast Line R. Co. v. Burdi, 427 So. 2d 1048 (Fla. Dist. Ct. App. 1983).

If the jury does not calculate this properly, then the Personal Representative of the Estate has the duty to move the trial court judge for a correction, and if necessary, to appeal the jury’s verdict and final judgment to the Florida appellate court.

Punitive Damages

Lawsuits under the Florida Wrongful Death Act are based upon underlying causes of action involving negligence, product liability, premises liability, or any other valid basis for filing a lawsuit in Florida state law for personal injuries.

If these bases allow for punitive damages, then the Personal Representative in the Wrongful Death Lawsuit, as the party plaintiff, may seek punitive damages even though the accident victim has died.

However, there may be an upper limit placed on the amount of punitive damages in certain cases. See Wransky v. Dalfo, 801 So. 2d 239 (Fla. Dist. Ct. App. 2001).

As explained by the Florida Supreme Court, punitive damages are awarded by the jury, and “[t]hey are to be measured by the enormity of the offense, entirely aside from the measure of compensation for the injured plaintiff.” Arab Termite & Pest Control of Fla., Inc. v. Jenkins, 409 So.2d 1039, 1042-43 (Fla. 1982).

However, the punitive damages award cannot be out of proportion to the defendant’s net worth. The goal of punitive damages is to make them “painful enough to provide some retribution and deterrence” but not so high that they “destroy the defendant.” 1043.

IRS Treatment of Jury Awards and Paying Taxes on Wrongful Death Damages

For those grieving the loss of their loved one in a wrongful death, their legal recompense may come at the conclusion of a Florida Wrongful Death Act lawsuit brought by their Personal Representative of the decedent’s estate.

The Personal Representative, acting as plaintiff in the wrongful death litigation, will distribute the net proceeds to the Survivors after the jury verdict has been rendered and the award finalized.

The Personal Representative will have the responsibility of making sure that taxes are paid regarding the award given to the decedent’s estate.  The Personal Representative is not responsible for making sure that taxes are properly paid for the Survivors.

For each Survivor, it will be necessary to determine whether or not their wrongful death proceeds are to be considered income for purposes of their own federal income tax.

There is no blanket answer to this question. Whether or not wrongful death proceeds are taxable income from the perspective of the Internal Revenue Service depends upon the totality of facts and circumstances of the individual case.

General Rule for Wrongful Death Damages Taxable for Survivors

However, as a general rule, allocations for items such as attorney’s fees will not be targeted by the IRS.  Jury awards for pain and suffering, emotional distress, or mental anguish that do not regenerate from the individual’s personal injuries may need to be included in the Survivor’s taxable income.

This amount may be reduced by:

(1) Amounts paid for medical expenses attributable to emotional distress or mental anguish not previously deducted and

(2) Previously deducted medical expenses for such distress and anguish that did not provide a tax benefit.

The net taxable amount should be reported as “Other Income” on line 21 of Form 1040.

Again, each case is unique, and whether or not a particular jury award for wrongful death damages is considered taxable income, in whole must be decided after consultation with a tax professional.

For further information please refer to the following IRS publication:

Do You Have a Question? Contact Us Today for a Straight Forward Case Evaluation

As a Board-Certified Civil Trial Expert for over 40 years, Alan Sackrin has extensive experience dealing with wrongful death cases. He offers a free initial consultation (over the phone or in person) to answer your questions. When you’re ready to speak with a personal injury lawyer about your case, call Alan at 945-458-8655 or send him an email through our contact page.

For more information About Alan Sackrin See his Wrongful Death Lawyer Page.