Florida wrongful death lawsuits can be tricky matters when it comes to who has the right to sue. One can pursue a claim as a representative of decedent’s estate or they can pursue action as a survivor of decedent. Claims by survivors may result in higher damage awards, depending on the circumstances, because there are different types of damages one can assert. Those with a right to claim damages as a survivor generally include (in descending order) the decedent’s:
- Children (particularly those under 25);
- Siblings or other blood/ adoptive relatives who were at least partially dependent on decedent for support or services.
Still, it is incumbent on those who have the right to pursue such a claim to do so in a timely manner. For example, a spouse may have statutory priority over a decedent’s parents in a wrongful death claim, but unless the spouse actually files the claim within the wrongful death statute of limitations (2 years in Florida), they may not be able to successfully challenge a prior claim, settlement or verdict.
Such was the case in a matter recently before the Tennessee Supreme Court. According to court records, the mother of an unmarried man who died in handcuffs while in the custody of a retail store was able to secure a wrongful death lawsuit settlement in 2010, claiming to be the sole heir of the decedent. However, 20 months after the case was dismissed in lieu of that settlement, a woman who reportedly gave birth to decedent’s child filed a motion to set that order aside and substitute her (as her child’s representative) as the real party in interest, allowing the claim to relate back to the original filing.
Plaintiff insisted her child was decedent’s next-of-kin, based on his previous signed admission of paternity (though he did not pay child support, despite a court order in Mississippi that he do so). She further asserted the the child was the lawful beneficiary with statutory priority over decedent’s mother – the only one entitled to bring, settle and/ or dismiss the wrongful death lawsuit.
This may well have been true. However, in Tennessee, the statute of limitations for wrongful death cases is just one year. Decedent in this case died in December 2008 and his mother (without the knowledge or involvement of the minor child’s mother) filed her claim just one day shy of that statute of limitations. The settlement was reached in March 2010. It wasn’t until December 2011 that minor child’s mother (as the child’s representative) filed her claim, seeking to install herself as the plaintiff.
The trial court dismissed the claim, finding minor child’s mother failed to file in a timely manner. The appellate court vacated trial court’s ruling, finding the matter wasn’t ripe for adjudication because the trial court failed to conclusively establish the paternity of the child. The Tennessee Supreme Court, however, ruled the appellate court erred. It didn’t matter whether the child’s paternity was established, the state high court ruled, because the claim couldn’t prevail anyway, as it was not timely filed.
Cases like this underscore how critically important it is for anyone with a possible claim to damages in a wrongful death case to consult with an experienced wrongful death attorney in Fort Myers as soon as possible.
Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.
Hussey v. Woods, Dec. 18, 2017, Tennessee Supreme Court
More Blog Entries:
Florida Woman Injured When Car Crashes Into Her House, Dec. 26, 2017, Fort Myers Wrongful Death Lawyer Blog