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Dealing With Florida Wrongful Death Actions

Written by Spencer Aronfeld on . Posted in Wrongful Death

Wrongful Death Actions

Florida’s Wrongful Death Act provides surprisingly limited damages to the survivors.  It also has very narrow definitions as to who a survivor is and is not.  Of course the section of the Florida Statutes entitled Wrongful Death contains none of the definitions of who a survivor is and how a survivor is defined.  Rather, for some inexplicable reason, the definition of survivor is found under the General Negligence Statute nearly at the bottom in §768, where survivors are defined as follows:

  1. “Survivors” means the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.
  2. “Minor children” means children under 25 years of age, notwithstanding the age of majority.
  3. “Support” includes contributions in kind as well as money.
  4. “Services” means tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case.
  5. “Net accumulations” means the part of the decedent’s expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. “Net business or salary income” is the part of the decedent’s probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent’s personal expenses and support of survivors, excluding contributions in kind.

What Happens When the Survivor Dies?

If a survivor dies before a final judgment can be entered, Florida Statutes §768.24 limits the survivor’s damages as follows:

A survivor’s death before final judgment shall limit the survivor’s recovery to lost support and services to the date of his or her death. The personal representative shall pay the amount recovered to the personal representative of the deceased survivor.

Proving the extent of the economic damages in a wrongful death case often requires the testimony of an experienced and competent economist to determine the amount of lost wages, household services and other factors such as reducing sums to present value in order to determine what the net accumulations are.

Contact an Experienced Wrongful Death Attorney

If you think a loved one or family member is the victim of an accident or medical mistake, please contact our experienced Florida wrongful death lawyers for a confidential evaluation.

Release Law

Florida’s Release Law Unenforceable in Florida Keys Diving Accident Case

Written by Spencer Aronfeld on . Posted in Personal Injury News and Safety Resources, Wrongful Death

Millions of thrill-seeking tourists visit Florida every year, and many of them engage in risky activities like jet skiing, parasailing, skydiving, scuba diving, and bouncing in these new giant trampoline warehouses called Sky Zones. Most of the owners and operators of those for-profit businesses require participants to sign waivers and releases promising not to sue them if the participants are injured or killed. But are those releases enforceable in Florida if you get hurt?


Release Law

On the morning of the dive that led to her death, Mrs. Diodato and her husband arrived late to a scheduled deep-water dive. Rather than have her companions wait for the Diodatos to read and sign a special release used for deep-water diving, the dive instructor, who was also sued for her wrongful death, relied on a release the couple had signed a few days before. That diving instructor had assumed the release would be valid for an entire year provided that a certain box

was checked on the back of the document. Even though the “valid-for-a-year” box was not checked and the release that was previously signed was not the kind that is used for deep-water diving, a Miami trial judge dismissed the Diodatos’ case.

This week, a Florida appellate court invalidated the release signed by that Arizona woman, Aviva Diodato, who drowned to death while she and her husband were scuba diving in the Florida Keys. Justice was served by the 3rd District Court of Appeal in the case of Diodato v. Islamorada Asset Management. I am sure

it is no coincidence that the brilliant Judge Leslie B. Rothenberg was on the panel that found the release signed by Mrs. Diodato was unenforceable. Read the 3rd DCA’s Opinion here.

Wrongful Death Case

Car Insurance and How It May Affect A Wrongful Death Case

Written by Spencer Aronfeld on . Posted in Wrongful Death

What happens when you get into a motorcycle accident in Florida with someone whose insurance has expired? It depends on why and how the insurance policy became inactive. If the policy lapsed because of non-payment and the insurance company has mailed written notice to the address listed in the policy at least 45 days before the policy lapses, there will be no coverage.

Florida Court Rules in Favor of Insurance Company in Wrongful Death Case

This week, Florida’s Third District Court of Appeal heard the wrongful death case of a Miami man who was killed while riding his motorcycle. He was struck by a car owned by Eduardo Olivera and driven with Olivera’s permission by Robert Zaid Alsina.

The family of the victim, Alfredo Rodriguez, sued Mr. Olivera and Mr. Alsina for their loved one’s wrongful death, only to discover that Mr. Olivera’s car insurance had become inactive about a month before the accident. Mr. Olivera thought he was insured with Security National Insurance Company. But following the tragic accident, when he was sued, his insurance company claimed his insurance policy had lapsed before the accident and therefore there was no money to pay the  Rodriguez family.

Wrongful Death Case

The Rodriguez family and Mr. Olivera entered into a contract called a “Coblentz Agreement” for $2.5 million. Coblentz Agreements are legal agreements made between parties in lawsuits when there are disputes about whether or not there is insurance to cover a certain event. In cases like this they agree to an amount of money as a judgment and then the plaintiff assumes the rights of Olivera to sue his own insurance company for bad faith in not paying the claim. This takes Olivera off the hook for any money he might owe the Rodriguezes and gives the Rodriguezes a chance to collect against the insurance company directly.

Sadly, in this case, there would have been insurance coverage . . . had the policy not been canceled for non-payment. The insurance company claims that the policy lapsed after it had sent notice to Mr. Olivera at the address he had provided in his insurance application: 5005 Collins Avenue, Miami Beach, Florida 33140. However, he had not provided an apartment number.