Mr. Hastings Read has moved onto a post at the Florida Department of Environmental Protection, and we wish him all the best fortune in the world. He’ll be missed. Ms. Meghan M. Bensted has come aboard and will quickly assume Hastings’s duties. She comes as a 2012 graduate of the Florida State University, College of Law, and we welcome her.
On March 15, 2013, Leon County Circuit Court Judge Terry Lewis entered a temporary injunction finding that Florida’s new Personal Injury Protection (“PIP”) law is likely to be found unconstitutional. Judge Lewis cited a possible violation of Art I, Section 21 of the Florida Constitution, which guarantees citizens’ rights to access to the courts. The temporary injunction was subsequently stayed after an appeal was filed by the Office of Insurance Regulation. However, on April 17, 2013, Judge Lewis vacated the stay of the injunction, meaning that until an appellate court overrules Judge Lewis temporary injunction, certain provisions of the 2012 PIP law are no longer the law in Florida.
This ruling has enormous implications because if the Judge Lewis’ decision is upheld by the appellate courts, two of the key PIP reforms passed during the 2012 Florida Legislative Session will be voided. This would have the effect of returning to the pre-2012 PIP law, which critics have argued was a hotbed for insurance fraud. Some of the key provisions in the 2012 PIP law which are no longer enforceable include: (1) the exclusion of acupuncturists, chiropractors, and massage therapists from receiving payments from an injured party’s PIP insurer; and (2) the $2,500 limit for medical benefits for non-emergency conditions.
Florida’s PIP law was originally passed in 1971 as tort reform with the underlying premise being that Florida citizens give up their right to sue for non-economic damages (e.g., pain and suffering) in exchange for prompt access to medical services without regards to who was the at-fault driver in an auto accident. This was upheld by the Florida Supreme Court as reasonable alternative to the tort system. Judge Lewis ruled that the changes made by the new PIP law meant that the PIP system was no longer a reasonable alternative to a pure common law tort system and therefore likely to be found unconstitutional.
By Hastings S.C. Read, Esquire
Our law firm also helps families who’ve lost beloved members involved in deadly accidents. It is unfortunate that anyone has to go through this but, if they do, the Florida Legislature has promulgated procedures by which those families can be compensated for their loss, and we will fight for a family’s right to be compensated.
Florida’s Wrongful Death Act applies to cases where someone’s death was caused by the wrongful act, negligence, default or breach of contract or warranty of any other person.
Attorneys use the word “damages” as a general term for the different kinds of recoveries, such as money awards, a family can get in a wrongful death case. However, it is important to note that only one family member is usually appointed as a Personal Representative of his or her deceased family member’s estate.
In these cases, we open probate estates so that a judge can appoint one family member as the Personal Representative [“P.R.”]. The Wrongful Death Act provides that the P.R., and only the P.R., may recover on behalf of the family and the probate estate, even though there may be several individuals entitled to damages.
If a settlement or judgment is obtained, the P.R. is in charge of distributing the awards to the family members, generally speaking.
The “decedent” is the person who passed away in the accident. Those who may lawfully recover damages are called “survivors,” and Florida statutes specifically define “survivors” to mean 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.
Whenever the Wrongful Death Act talks about “minor children,” it means the decedent’s children under 25 years of age, not just those under 18.
What can a family member recover for damages?
Each survivor may recover the value of lost support and services from the date of the decedent’s injury to his or her death, with interest, and future loss of support and services.
The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.
Children under the age of 25 years, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
Additionally, each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.
The decedent’s estate may recover other damages too but, notably, damages flowing into the estate may be subject to creditors’ claims.
Disclaimer: This blog talks about death cases, in general. There are many specifics to apply to a set of circumstances, so this blog should not be relied upon to determine one’s rights. It is informative in nature only. No two cases are exactly alike, and potential new clients are forewarned that they need a skilled trial attorney to help them maneuver through Florida’s Wrongful Death Act.
Our client sued an Allstate insured company named Heinz Brothers Outdoor Services in Leon County Circuit Court Case, Judge Kevin Davey. The Heinz Brothers dump truck ran a stop sign and struck the car in which our client was riding. After a jury trial, the jury gave her $15,000 but, due to Allstate’s misconduct, the judge later entered a judgment of $43,000.00.