This article focuses on a spouse’s right to compensation for his or her spouse’s death.
In a moment, I will talk about the average payout for the death of a spouse in an accident case. But first we need to see what compensation a spouse is entitled to receive.
The state where the injury (that led to the death) occurred will determine the spouse’s rights.
For example, in Florida, the spouse of the decedent is considered a survivor under Florida’s Wrongful Death Act. Florida Statute 768.18.
“Decedent” is the person who was killed.
Thus, the spouse that survives can get damages in a wrongful death case. The probate court appoints a personal representative. Most of the time, the personal representative is the spouse.
However, even if a spouse hasn’t yet been appointed personal representative, he or she can still make a settlement offer for husband or wife’s death. University of Miami v. Wilson, 948 So.2d 774 (Fla. 3d DCA 2006). In fact, the spouse should immediately begin investigating the claim after the spouse’s death. Hiring a wrongful death lawyer is a smart idea.
This is true whether we’re talking about a death from a bridge collapse, a car accident or any type of accident.
The personal representative of the decedent’s estate is the person that has the authority to bring the Florida wrongful death case. (The decedent is the person who died.) The personal representative brings the wrongful or accidental death case on behalf of the Estate, the spouse and any other survivors.
Table of contents
- Who Is Considered a “Spouse” Under Florida’s Wrongful Death Act?
- Is a Common Law Spouse Considered a “Survivor” Under Florida’s Wrongful Death Act?
- What Types of Compensation Can You Get if Your Spouse is Killed?
- What is the Average Case Value for the Death of a Spouse?
- Biggest Factor That Affects Compensation Amount for a Spouse’s Wrongful Death
- Same Sex Surviving Spouses May Get Compensation
- Wife Gets $10K (Policy Limits) After Husband is Killed (Car Crash)
- Court OKs $15 Million for Wife’s Pain and Suffering
- $4.5 Million Settlement for Wife (Husband Killed in Tractor-Trailer Accident)
- Jury Awards $10 Million to Wife (Husband Was Killed in a Car Accident)
- Court OKs $3.5 Million Award for Pain and Suffering for Husband for Wife’s Death
- Wife Wins $1.2 Million for Pain and Suffering (Husband Was Pedestrian Killed by Drunk Driver)
- Pedestrian’s PIP Paid His Wife $5K (State Farm Likely Quickly Paid $10K UM Insurance Limits)
- $22 Million Verdict for Husband’s Pain and Suffering from Wife’s Death (Drunk Driving Accident)
- $5 Million Award for Spouse’s Pain and Suffering Reduced to $1 Million
- Jury Awards Husband $2.1 Million for Pain and Suffering from Wife’s Death from Car Crash
- Court Approves $10.8 Million for Pain and Suffering for Woman Whose Husband Died
- Judge Lowers Wife’s $6 Million Award (for Pain and Suffering) from Husband’s Death to $3 Million
- $1.4 Million Awarded to Husband (and 2 Minor Kids) After Wife is Killed in Car Accident
- Jury Gives Husband $516K for Pain and Suffering from Wife’s Death in Car Accident
- $3,841,989 for Death of Wife Caused by Pharmacy Error
- Wife Rejects $100K Allstate’s Offer for Husband’s Death Because Allstate Didn’t Send the Policy Affidavit, Sues for More
- Court OKs $100,000 for Pain and Suffering to Surviving Wife Because of Marital Issues
- What Happens if Someone’s Spouse is Killed in an Uber or Lyft Accident?
- Spouse is Killed in a Motorcycle Accident (Settlements)
- News Stations Have Interviewed Me About Cases Where a Spouse Was Killed
- Call Me Now!
Who Is Considered a “Spouse” Under Florida’s Wrongful Death Act?
In order to be a spouse under the Act, the marriage must be legally valid. The legal validity is usually determined by the law of the state where the marriage takes place. Young v. Garcia, 172 So. 2d 243 (Fla. 3d DCA 1965) (decided under the prior Wrongful Death Act).
Under Florida law, a legal marriage may exist as long as it is entered into by the party claiming the marriage in good faith and in substantial compliance with Florida law. Fla. Stat. § 741.211.
Is a Common Law Spouse Considered a “Survivor” Under Florida’s Wrongful Death Act?
Florida does not allow common law marriage. But Florida will recognize a common law marriage if it occurred before January 1, 1968. Thus, if a common law marriage was entered to before January 1, 1968, the surviving spouse may be entitled to damages under the Florida Wrongful Death Act.
If a spouse divorced the decedent prior to the decedent’s death, that spouse is not considered a surviving spouse in Florida and thus has no claim as a survivor.
What Types of Compensation Can You Get if Your Spouse is Killed?
The types of damages you may be able to recover if your wife or husband died in an accident is as follows:
- Mental pain and suffering
- Loss of companionship of your husband or wife
The spouse can also recover compensation for loss of support and services of the spouse.
Additionally, the personal representative of the estate can recover money for medical bills and funeral costs.
Here, I will focus on the spouse’s claim for pain and suffering.
What is the Average Case Value for the Death of a Spouse?
Before I give the answer, I need to give some disclaimers. In other words, I will tell you why the average that I’m about to give isn’t the perfect answer.
My average figure is based the cases that I’ve researched. I’ve only researched Florida cases, even though a few Florida courts reference out of state cases.
I don’t include any defense verdicts where the court found that the defendant wasn’t at fault.
The average uses the full value of only the pain, suffering and loss of companionship component of the case. The amount doesn’t include any reductions for the decedent’s fault that contributed to the death. (In many cases, the decedent was at least partially responsible for his or her death).
The average is the amount after any appeals have been exhausted. For example, sometimes a spouse gets a huge verdict for pain and suffering, but an appeals court greatly lowers it. The average below is the final amount.
Thus, be careful looking on the internet at the amount that attorneys say the verdict was for. The verdict is one piece to the puzzle. The final number, after the time to appeal has passed, is what matters.
Also, there haven’t been many court decisions that discuss the full value of a spouse’s pain and suffering. I’ve only found 9 cases. Thus, the sample size is small for this research. Thus, take these verdicts with a grain of salt.
Nevertheless, the average full value for a spouse’s pain, suffering and loss of companionship is about $3.3 million dollars.
The bad news?
Due to limited insurance, the surviving spouse often has to settle for much less than that amount. In fact, I represented a spouse whose recovery, sadly, was limited to a $10,000 bodily injury liability insurance payout.
That was the only available insurance. Watch this video to see 3 reasons why many wrongful death claims are worthless:
Biggest Factor That Affects Compensation Amount for a Spouse’s Wrongful Death
The biggest factor that determines the likely payout is usually the amount of available insurance coverage. Without insurance, the liable party may not have enough money to pay for the spouse’s pain, suffering and other damages.
Now, if a big company killed your husband, insurance does not matter as much. This is because large companies, like Walmart, Publix and others have plenty of money to pay for a spouse’s wrongful death.
However, things often get tougher in a car accident death case.
Most Florida car owners are not required to carry bodily injury liability insurance. The careless driver of the car is also liable if he or she causes someone else’s death.
The owner of the car may be liable as well.
Now perhaps the person that caused your spouse’s death was working at the time of the accident. Their employer will be liable for the accident.
It is very important to look for all the possible people and insurance companies that may be responsible to pay you for your pain and suffering and other damages. There are many parties that may be liable.
If your wife or husband was working at the time of the accident that led to his or her death, the spouse has a workers’ compensation claim. However, the workers’ compensation death claim often has a full value that is much smaller than a wrongful death claim against a careless party.
This is because a workers’ compensation claim doesn’t include money for pain and suffering.
The decedent’s spouse may also have a case against the person – or company – that caused the decedent’s death.
You may have to repay the workers compensation insurance company from the settlement that is reached with the tortfeasor. “Tortfeasor” is the at fault party.
Same Sex Surviving Spouses May Get Compensation
In Florida, same-sex surviving spouses are considered a survivor under the wrongful death act.
Thus, if a same-sex spouse can show that someone’s negligence caused the death of their spouse, then the surviving spouse can get compensation.
Thus, those who are part of the LGBT (Lesbian and Gay) community may be entitled to compensation.
“Cheaters” Get Less Money
Evidence that a decedent promised to marry a lover shortly prior to death tended to prove the extent of surviving spouse’s mental pain and suffering. Adkins v Seaboard Coastline R. Co.,351 So.2d 1088 (Fla. 2d DCA 1977)
Wife Gets $10K (Policy Limits) After Husband is Killed (Car Crash)
I represented a woman whose husband was killed in car accident in South Florida. The driver of the at-fault car only had $10,000 in bodily injury (BI) liability insurance with Progressive Insurance.
The driver had no assets. My client did not want to sue the driver personally, or look to see if we could sue a bar if one over-served the driver.
I did not charge an attorney’s fee. Why not?
I felt that it was unfair to take a fee when the woman had such a big loss and the settlement was relatively small.
Let’s look at some recent cases where someone’s negligence caused another to lose a spouse in Florida.
Court OKs $15 Million for Wife’s Pain and Suffering
Andrew Schleider, a cigarette smoker, died from lung cancer and chronic obstructive pulmonary disease. His wife sued R.J. Reynolds for wrongful death in her capacity as personal representative of his estate alleging she and their daughter were statutory survivors.
This is a tobacco case. However, the court’s reasoning should apply to car accident and other accident case values.
The jury awarded $15 million in pain and suffering compensation to the wife. The jury awarded $6 million for the daughter’s pain and suffering.
The tobacco company appealed the verdict. However, the appeals court said that $15 million for the wife’s pain and suffering was OK.
Why did the court say that $15 million was OK for the wife’s pain and suffering?
Because the wife endured a tremendous amount of pain and suffering from the husband’s demise and death.
The jury heard evidence that Schleider was fifty-six and his wife was fifty-five at the time of his death. They had been married for thirty years, and had four children.
Long marriages typically lead to higher payouts for a spouse (whose spouse is killed).
Schleider had become disabled and, as a result, was a stay-at-home parent and the primary caregiver for their family. The wife had just retired and the couple moved to the Florida Keys when Schleider was first diagnosed. He passed away within roughly two years. During that time, the wife watched as Schleider withered away and suffered.
When a spouse watches the other spouse suffer for years before the death, it increases the full value of the case.
By the end, he had lost all of his hair, he could not use the toilet by himself. The toilet was kept next to his bed because he could not walk to the bathroom. Each day, he was given morphine for his pain.
After the wife testified about the suffering she witnessed, she said,
I do not want to ever see anybody else suffer like that.
Even twenty years later, the wife has never remarried.
The Plaintiffs also published life expectancy tables to the jury to establish the duration of loss.
Why does life expectancy matter?
A wife (and her husband) who are younger typically have a higher full settlement value for pain and suffering. This is because young people are expected to live longer.
The trial court approved the jury’s award.
In sum, the appeals court said that 15 million dollars for the loss of a spouse as the wife embarked on her retirement and the couple moved to the Florida Keys may be more than what they would have awarded as jurors.
However, $15 million isn’t so but it is not so unusually large as to require the court to lower the verdict. Thus, the court approved the $15 million verdict for pain and suffering for the wife.
$4.5 Million Settlement for Wife (Husband Killed in Tractor-Trailer Accident)
This is not my case. Wiley Clark was a 72-year-old man. I assume that he was retired. He had a marriage (with his wife, Bonnie) of around 38 years.
Wiley was driving on U.S. 301 in Hawthorne, Florida. A semi-tractor-trailer allegedly crossed the median and swerved into Wiley’s pickup truck. The 18 wheeler was being driven for a world-renowned retail store. The driver was working for a company that transports grocery products to the retailer’s stores.
Sadly, Wiley died from the crash. Wiley was survived by his wife of around 38 years. He did not have any minor children.
Bobby was appointed as personal representative of her husband’s (Wiley) estate. As personal representative, she sued, the retailer, the trucking company and the truck driver.
Bobby sued for her mental pain and suffering. Bobby allegedly received a $4.5 million settlement. I assume that most of the settlement was for pain and suffering. I believe that the settlement was in 2018.
If Wiley had adult children, they would not be able to get compensation for pain and suffering. This is because Wiley was married at the time of the accident. If Wiley had minor children, they would be entitled to money for pain and suffering.
Jury Awards $10 Million to Wife (Husband Was Killed in a Car Accident)
This isn’t my case. In January 2011, Richard Wiederhold swerved into the median to avoid a vehicle that had pulled out in front of him.
His vehicle drifted through the median and back across the roadway, flipped over once or twice, and came to rest in a ditch.
The collision immediately rendered him a quadriplegic. The other vehicle was driven by Jeffrey Kidd, who was delivering pizza for Domino’s franchisee, Fischler.
One month after the accident, Mr. Wiederhold sued Domino’s, Fischler, and Mr. Kidd, claiming that Mr. Kidd negligently caused his injuries. He also claimed that Fischler and Domino’s were vicariously liable.
Several months later, Mr. Wiederhold married his girlfriend, who was an uninjured passenger in the accident.
In March 2012, Mr. Wiederhold died. His now-wife, Mrs. Wiederhold, as personal representative of his estate, was substituted as the plaintiff.
Florida’s 5th DCA appeals court said even though she married him after his injury (that led to his death), she is considered a surviving spouse under Florida’s wrongful death law.
Here is a map of Florida’s appeals courts.
Florida’s Fifth District Court of Appeal is comprised of Hernando, Lake, Marion, Citrus and Sumter Counties, Flagler, Putnam, St. Johns and Volusia Counties, Orange and Osceola Counties, Brevard and Seminole Counties.
Why does it matter that the appeal was heard by Florida’s 5th district court of appeals?
Because another district court (the 4th) of appeals takes the opposite approach.
Florida’s 4th district court of appeal says that someone who marries a spouse after the injury (that leads to the death) is NOT entitled to pain and suffering for the spouse’s death. Kelly v. Georgia-Pacific, LLC, 211 So. 3d 340 (Fla. 4th DCA).
Florida’s 4th DCA handles appeals from Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee Counties.
Mrs. Wiederhold then amended her lawsuit to include a claim for wrongful death compensation as Mr. Wiederhold’s surviving spouse. In June 2013, Fischler was dismissed from the lawsuit after it settled with Mrs. Wiederhold for $1 million.
The case went to trial against Domino’s and Kidd. The jury found Kidd 90% responsible for causing the accident.
The jury awarded Mrs. Wiederhold $10 million for loss of her husband’s companionship and protection and for her mental pain and suffering as a result of her husband’s injury and death. Thus, she is entitled to 90% of the $10 million. However, since she settled with the franchisee for $1 million, you subtract $1 million from the verdict. That brought the judgment (amount owed) to about $8.1 million.
Domino’s appealed the verdict, in part, because the wife’s lawyer implied to the jury that if they awarded $10 million it would be allowed to withstand an appeal.
The bad news for the decedent’s wife?
On May 11, 2018 the appeals court agreed with Domino’s about the $10 million dollar “being ok” comment. It ordered a new trial on liability and damages (compensation).
The case is Domino’s Pizza, LLC v Wiederhold, Fla: Dist. Court of Appeals, 5th Dist. 2018.
Court OKs $3.5 Million Award for Pain and Suffering for Husband for Wife’s Death
This isn’t my case. In R.J. Tobacco Company v Jan Grossman, as Personal Representative of the Estate of Laura Grossman (Fla: Dist. Court of Appeals, 4th Dist. 2017), Laura passed away due to smoking. She left her husband a forty-five year old widower and single dad.
The appeals court approved the jury’s award of $3.5 million in pain and suffering to the husband as well as the Decedent’s medical and funeral expenses.
The appeals court also approved the jury’s award to the Decedent’s 11 year old daughter $7.5 million and 3-year-old son $4 million.
Wife Wins $1.2 Million for Pain and Suffering (Husband Was Pedestrian Killed by Drunk Driver)
This isn’t my case. Linda Robles, as Personal Representative of the Estate of Miguel Mercado, (“Plaintiff”), sued Aaron Swanson for wrongful death. Robles used Tampa wrongful death lawyers to represent the estate.
Linda wasn’t Miguel’s spouse. In fact, Linda wasn’t even a survivor under Florida’s Wrongful Death Act. However, sometimes someone other than the surviving spouse is appointed to be personal representative.
She sued for compensatory and punitive damages. The lawsuit arose from an auto accident that occurred on October 19, 2008.
Swanson was driving under the influence and alcohol or drugs. Swanson hit and killed Miguel while he was a pedestrian. The crash happened in Tampa, Hillsborough County, Florida.
Mercado has PIP/No-Fault insurance on his car with State Farm.
Pedestrian’s PIP Paid His Wife $5K (State Farm Likely Quickly Paid $10K UM Insurance Limits)
Mercado wasn’t in a car when the accident happened. However, since a vehicle hit and killed him, his State Farm car insurance paid his wife – Gloria Mercado – the $5,000 PIP death benefit. (In the wrongful death lawsuit against Swanson, he was entitled to a credit for the $5,000 PIP death benefit.)
He also had $10,000 in uninsured motorist (UM) insurance on his car with State Farm. I assume that State Farm quickly paid the $10,000 UM limits.
GEICO insured Swanson with a $10,000 bodily injury liability (BIL) insurance policy. GEICO isn’t the only company that sells small BIL car insurance policies. State Farm, Progressive, Allstate and many others sell policies with low limits.
Before trial, Swanson admitted negligence and admitted that he was the sole cause of the accident. The first part of the trial was on compensatory damages. The second part was for punitive damages. See Swanson v. Robles, 128 So. 3d 915 (Fla. 2d DCA 2013), review denied, 145 So. 3d 827 (Fla. 2014).
This accident resulted in a first trial and verdict, which Swanson appealed. Here, I concentrate on the most recent trial.
The compensatory damages stage was tried before a jury, beginning September 28, 2015, and finishing on September 30, 2015. The jury entered a verdict in favor of Plaintiff and against Defendant awarding compensatory damages in the amount of $1,667,667.00.
The damages are itemized as follows:
- Personal Representative:
Funeral Expenses $17,126.00
- Surviving Spouse:
Future Loss of Support $132,523.00
- Loss of Services (Past): $120,513.00
Loss of Services (Future): $185,355.00
The jury also awarded:
- Loss of companionship and protection and pain and suffering (Past): $426,386.00
Loss of companionship and protection and pain and suffering (Future): $785,764.00
This brings the total compensatory verdict to $1,667,667.00.
The At Fault Driver Had Limited Insurance (with GEICO)
The bad news for the wife?
GEICO is only responsible for $10,000 of the verdict because the insurance policy was only for $10,000. Many spouses end up accepting smaller pedestrian accident settlements for a spouse’s death if there is limited insurance available.
However, if GEICO is sued, and loses the trial, for acting in bad faith for failing to settle, then the wife may be able to collect more than GEICO’s $10,000 policy.
The jury also awarded the personal representative of the estate $3,118,560.00 in punitive damages.
In addition, the jury found that at the time that the Swanson hit the pedestrian (Mercado), Swanson was under the influence of an alcoholic beverage or drug to the extent that his normal faculties were impaired.
Why does this matter?
Punitive damages are generally limited to the greater of three times the amount of compensatory damages or $500,000. § 768.73(1)(a), Fla. Stat. (2008).
Section 768.736 removes the cap on punitive damages if the jury finds that the defendant was impaired by drugs or alcohol. Therefore, if the at fault driver was drunk, there is no cap on punitive damages.
As of May 7, 2018, this case is still on appeal. I will update this article when the appeals court issues its final ruling.
The decedent’s wife, Gloria, was the beneficiary on a life insurance benefit through her husband’s employment with the City of Tampa. That benefit equaled two times his base salary for a total of $93,225.60. She also received almost $10,000 through the DROP program (Delayed Retirement Option Program).
$22 Million Verdict for Husband’s Pain and Suffering from Wife’s Death (Drunk Driving Accident)
This is not my case. On March 18, 2012, Alanna Demella was a guest at the Riverside Hotel. The hotel is located in Fort Lauderdale, Florida.
The Las Olas Holding Company owns the hotel. However, it does business as Riverside Hotel.
Alanna was sitting at the poolside cabana. While sitting at the cabana, Rosa Kim, struck Alanna with Rosa’s car. Rosa’s car left the roadway, and drove onto the hotel’s premises. Sadly, Alanna died.
Rosa Kim was driving while under the influence to the extent of three times the legal limit.
Rosa apparently failed to even attempt to avoid hitting a cabana at the hotel. Alanna was survived by her husband, Michael Demella.
Michael, as personal representative of the estate of his wife (Alanna), sued the hotel. He also sued the drunk driver.
He claimed that there was a curve on the road that was a dangerous condition giving rise to a duty with respect to people, like his wife, who were inside Riverside’s cabana.
Specifically, Michael claimed that Riverside should have built a sturdier cabana to protect from the allegedly separate risk posed by the road.
On June 20, 2014, Michael’s lawyer sent to the hotel’s attorney an offer to settle for $750,000. The hotel didn’t accept the offer.
On December 11, 2014, Michael settled with the drunk driver. Thereafter, his attorney dismissed the drunk driver from the lawsuit. I assume that he settled with the drunk driver’s insurance company. I also assume the drunk driver had small bodily injury liability insurance limits. Unfortunately, this is often the case in Florida.
On June 23, 2015, a Broward County jury decided that the hotel’s negligence was 15% responsible for Alanna’s death. The jury found the drunk driver 85% at fault.
The jury awarded Michael $22 million for his loss of his wife’s companionship and protection, and for mental pain and suffering from her death. Additionally, the jury awarded him $2 million for his future loss of support and services from his wife’s death.
The jury awarded $73,742 for medical or funeral expenses due to her injury and death. He was also awarded $9,156 for his loss of prospective net accumulations to the estate.
The total verdict was for $24,057,283.
Since the hotel was 15% at fault, it only was liable for 15% of the verdict. This means that the hotel owed Michael $3.6 million.
Predictably, the hotel appealed the verdict.
The bad news for the husband?
On July 19, 2017, the appeals court said that the hotel did not owe a duty to Michael’s wife in this case. Thus, it took away the verdict. The husband gets no compensation from the hotel.
Even if the appeals court found that the hotel had a duty, it still may have chopped down the $22 million pain and suffering award. $22 million for a spouse’s pain and suffering is extremely high.
This case is Las Olas Holding Co. v. Demella, 228 So. 3d 97 – Fla: Dist. Court of Appeals, 4th Dist. 2017.
$5 Million Award for Spouse’s Pain and Suffering Reduced to $1 Million
This is not my case. On April 16, 2014, a jury returned its verdict in this wrongful death lawsuit. They awarded the following categories of economic and non-economic damages:
- Lost net accumulations to the Estate: $87,200
- Lost Past and Future Support and Services: $261,000 per claimant
- Non-economic damages to husband (surviving spouse of 14 year marriage): $5,000,000
“Non-economic damages” in a wrongful death case means compensation for mental pain and suffering.
The court recognized the genuine loss suffered by the surviving spouse of Mrs. Wisekal, and his accompanying entitlement to non-economic damages.
The Wisekal marriage existed about 14 years before the death of Mrs. Wisekal.
However, towards the end it was clouded, at least briefly, by private thoughts of divorce on the part of Mrs. Wisekal.
Marital Problems Can be Used to Lower a Spouse’s Pain and Suffering Settlement
With regard to the non-economic losses of a surviving spouse, evidence of marital problems may be used to show the degree of the survivor’s mental pain and suffering and loss of the decedent’s companionship and society as a result of the wrongful death.
In this case, there was evidence of marital distress, with specific evidence of Mrs. Wisekal’s thoughts of divorce. Her thoughts were noted in the records of one of the doctors Mrs. Wisekal consulted after the Wisekal family relocated from New Jersey, to Georgia and finally to Florida.
The consult was shortly prior to the time of Mrs. Wisekal’s cancer diagnosis.
While Mr. Wisekal testified he was unaware of any marital problems, this uncontradicted evidence was a highly relevant consideration. The court said that it doesn’t appear that the jury considered this in its assessment of Mr. Wisekal’s non-economic damages.
There was no evidence that John Wisekal experienced an unusually disruptive or pathological loss of a magnitude beyond that of any spouse who endures the premature loss of his or her mate.
The bad news?
The trial court reduced the spouse’s award from $5 million to $1 million.
The jury also awarded the minor children $7.5 million each.
The court reduced the award to $2 million per each minor child. The court gave the personal representative (PR) the opportunity to accept the reduction in pain and suffering, or have a new trial on damages.
The PR asked for a new trial. The parties later entered a confidential settlement. I assume that the husband got somewhere between $1 million and $5 million for her pain and suffering.
The case is Wisekal v. Laboratory Corporation of America Holdings, Dist. Court, SD Florida 2014.
Jury Awards Husband $2.1 Million for Pain and Suffering from Wife’s Death from Car Crash
This is not my case. USAA issued an automobile insurance policy to Andrew Booth Buckman. In November 2010, Buckman was involved in an automobile accident that resulted in the death of Dennis Lee Kemp’s wife.
Buckman informed USAA of the accident on November 12, 2010.
He told USAA he was not under the influence of alcohol. He did not mention that Mrs. Kemp had died in the accident.
On November 15, claims adjuster Mr. Culver had the bodily injury reserves for the claim set at the full amount of the policy limits, $100,000. Culver contacted Buckman and learned he had a lawyer, at which point he ceased contact with Buckman and sent a message to his lawyer.
On November 16, Dennis Kemp’s lawyer sent a letter to USAA. Dennis Kemp was personal representative of his wife’s estate.
The letter set conditions for settlement of the case and requested compliance within 30 days. Kemp’s lawyer later testified that she would have settled the case if a check had been delivered within seven to ten business days.
Between November 15 and November 23 USAA made multiple unsuccessful attempts to contact Buckman’s attorney. On November 23, USAA forwarded the November 16 letter to Buckman’s counsel and stated that if they failed to reach a settlement within Buckman’s policy limits he would be personally liable for any excess damages over his policy limit.
On November 30, fourteen days after the original letter, Kemp’s attorney sent a second letter to USAA withdrawing the settlement offer. Thereafter, Kemp sued Buckman.
On December 3, after speaking to Buckman’s counsel for the first time, USAA authorized an offer for the policy limit of $100,000. On December 7, USAA sent a letter to Kemp’s attorney offering to settle the case for $100,000 and stating that a check had been sent.
The letter included a proposed release of liability that contained inappropriate property damage language. On December 20, USAA learned that the check had not been received by Kemp’s lawyer and sent a second check. Kemp’s attorney received the check on or before December 30, 2010.
On January 3, Kemp’s lawyer sent a letter stating her client was reconsidering the settlement for $100,000 but included a list of requests.
This list included a request that Buckman inform her, if he consumed alcohol prior to the crash, who provided him with the alcohol. On January 4, USAA forwarded this letter to Buckman’s counsel, informing him to provide the information and affidavit directly to Kemp’s attorney prior to the deadline in Kemp’s attorney’s letter.
USAA also informed Buckman that the decision to provide the requested information rested solely with him, but that his lawyer should discuss with him the legal ramifications of failing to provide the information requested by Kemp’s attorney.
Buckman’s counsel timely sent a response to Kemp’s lawyer providing all of the information requested except for the question about the consumption of alcohol. In response to that question, Buckman invoked his Fifth Amendment rights.
After this exchange, Kemp went forward with the lawsuit against Buckman.
Verdict May Have Been Bigger Because Jury Heard About Blood Alcohol Level
At trial, the jury heard about Buckman’s blood alcohol level. The jury (in this civil case) got to hear about Buckman’s plea (of nolo contendere) and conviction in his criminal case.
Juries often award more money for pain and suffering the driver who caused the crash was drunk.
The jury awarded $3,040,500 to Mr. Kemp. Of this amount, $872,000 was for Dennis’ lost of his wife’s services from his wife’s death. $2,168,500 was for Dennis’ pain and suffering and the loss of his wife’s companionship and protection.
At the time of the accident, Lisa Kemp had three children. Dennis, as PR of the estate, sued for each child’s loss of support and services from their mother’s death.
Since each child was under the age of 25 at the time of her death, they each had a claim for pain and suffering. The children were Michael Demetrius Lee Kemp, Gabriel Tyrese Lee Kemp, and Kortni Jendayah Takia Kemp.
The jury awarded Kortni $2,180,500 for pain and suffering. Kortni was also awarded $214,000 for loss of services and support.
The jury gave Gabriel $2,176,500 for pain and suffering. They gave her $122,000 for loss of services of support.
Kortni was awarded $2,174,500 for pain and suffering. Michael was awarded $92,000 for loss of services and support.
Since the Policy was Only $100K, Kemp Sued USAA for Bad Faith
Kemp then brought suit against USAA, alleging that they breached their duty of good faith to Buckman by not settling the claim and avoiding the excess judgment. Buckman also brought suit against USAA, and the suits were consolidated. The district court granted summary judgment for USAA, and Kemp and Buckman timely appealed.
He got a $10 million dollar judgment against Buckman. The case is Kemp v. USAA Casualty Insurance Co., Dist. Court, SD Florida 2015.
Court Approves $10.8 Million for Pain and Suffering for Woman Whose Husband Died
An appeals court approved a $10.8 million dollar mental pain and suffering and loss of consortium award to a spouse. Her husband died at age 59 from lung cancer as a result of smoking.
They enjoyed a very close relationship during their 39–year marriage, and were always together until he became ill. She cared for him as he lay dying during the final six months.
The entire verdict was larger than $10.8 Million but I am just speaking about pain and suffering and loss of consortium here. This case is R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307 (Fla. District Court of Appeal., 2012).
The verdict was in Alachua County, Florida.
My thoughts: I don’t think that the appeals opinion said how old the wife was, but they were married when they were young.
Thus, I’ll assume that she was 59 years old at the time of the death. The appeals court did say “the $10.8 million awarded by the jury is certainly at the outer limit of reasonableness for a case such as this.”
This appeals decision basically means that if you are 59 or so years old, and your spouse dies in an incident or accident caused by someone else, you could get up to $10.8 million dollars in pain and suffering if your case is a county that is in the jurisdiction of the 1rst District court of Appeal (DCA) in Florida.
The 1rst DCA is located in Tallahassee and includes the following counties: Alachua, Baker, Bay, Bradford, Calhoun, Clay, Columbia, Dixie, Duval, Escambia, Franklin, Gadsden, Gilchrist, Gulf, Hamilton, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Madison, Nassau, Okaloosa, Santa Rosa, Suwannee, Taylor, Union, Wakulla, Walton and Washington.
There are many factors that affect the value of a wrongful death or personal injury case. There is no guarantee that you get any money for a wrongful death of a spouse.
Judge Lowers Wife’s $6 Million Award (for Pain and Suffering) from Husband’s Death to $3 Million
This is not my case. Rosalia Gonzalez sued Mount Sinai hospital for the wrongful death of her husband, Antonio Gonzalez.
She claimed that, as she and her husband descended steps at Mount Sinai’s main bus stop, he fell and broke his hip. As a result, he passed away a few weeks later.
The jury awarded $6 million for the wife’s pain and suffering for her husband’s death. The hospital’s attorney asked the court to lower the verdict. The wife’s attorney agreed to have the verdict reduced to $3 million for pain and suffering.
She did not present competent evidence that her husband even fell on or down the steps. Rosalia didn’t have evidence that he fell because of their defective condition — rather than on the sidewalk next to the bus stop.
She failed to show that Mount Sinai’s alleged negligence was a legal cause of the accident. On September 12, 2012, the appeals court ruled in favor of the hospital.
The worst part?
The case was appealed. The wife got nothing. An engineer testified that the steps:
- were not uniform (the same)
- did not have different color paint so that someone walking there would know when the steps begin or end.
The case is Mount Sinai Med. Ctr. of Greater Miami Inc. v. Gonzalez, 98 So.3d 1198 (Fla, 3d DCA 2012)
$1.4 Million Awarded to Husband (and 2 Minor Kids) After Wife is Killed in Car Accident
On March 29, 1990, a vehicle driven by Marion Taylor collided with a vehicle owned by Berges but driven by a friend. The collision killed Marion Taylor and seriously injured her minor daughter, who was a passenger in the car.
There were three survivors under Florida’s wrongful death act. Marion was survived by her husband, and two minor children, including the daughter who was injured in the accident.
Berges was covered by an Infinity automobile insurance policy that had bodily injury limitsof $10,000 per person and $20,000 per accident.
The jury returned a $911,400 verdict in favor of the estate on the wrongful death claim. Additionally, they returned a $500,000 verdict on the personal injury claim involving the minor. Out of the $911,400 that was awarded to the estate, I don’t know the breakdown of how much was awarded the minor children and the husband.
As a result of these combined verdicts that far exceeded his policy limits, Berges filed a bad faith lawsuit against Infinity.
The jury found that the insurer, Infinity Insurance Company, acted in bad faith toward its insured, Barry Berges. The case is Berges v. Infinity Insurance Co., 896 So. 2d 665 (Fla. 2004).
Thus, the family and minor child were able to collect on the verdict.
Jury Gives Husband $516K for Pain and Suffering from Wife’s Death in Car Accident
This is not my case. In Citrus County v McQuillin, 840 So. 2d 343 (Fla. 5th DCA 2003), a jury awarded $516,000 to Bruce McQuillin for his pain and suffering after his wife was killed in a car accident.
The jury found his wife, Deborah McQuillin, to be 80% at fault for the accident. Thus, the verdict is reduced by 80%.
This case arose out of a tragic one-car accident caused by the driver losing control of the car which was traveling at a high rate of speed on a county road.
The car’s wheels left the side of the road and when the driver “jerked” the car back onto the road, she lost control of the car.
The rear of the car skidded sideways across the road causing the car to roll over and hit several trees. The damage to the car was described as “horrific.” Two passengers were ejected from the car, but Deborah was killed instantly, having suffered massive head injuries.
Based on the estate’s expert testimony presented at trial, the jury concluded that the accident was partially caused by a drop off of some three to five inches from the surface of the pavement to the shoulder of the road.
The county had just re-paved that section of the road, and there were no warning signs or markers to delineate the drop off. Experts testified that while the drop off did not contribute to the driver running off the road, it prevented her safe return to the surface of the road.
They testified the drop off on this newly paved county road was a clear hazard to cars, even ones traveling only thirty miles per hour, especially since the drop off was straight down at a ninety degree angle.
The jury also awarded Bruce McQuillin, personal representative of his late wife’s (Deborah McQuillin) estate:
- Net accumulations ($50,400)
- Funeral expenses ($8,000)
- Loss of service and support to the surviving spouse ($591,260)
The jury awarded $4.4 million dollars to her child, who was seven years old at the time of her death.
$3,841,989 for Death of Wife Caused by Pharmacy Error
Dean Hippely sued Walgreens pharmacy for negligence that he claimed killed his wife.
The pharmacy, in Mulberry (Polk County), Florida gave the woman the wrong medication. She spent four years with 24 hour care. Shen then died due to Walgreen’s negligence.
The case went to trial. A jury awarded her husband $3,841,989.
She left 2 daughters (age 10 and 14) and 1 son (age 21). The 10 year old received $6,790,577 and the 14 year old received $6,737,098 in pain and suffering.
The son received $6,639,168.
My thoughts: This case was appealed to the 2nd District Court of Appeal. On February 26, 2010, the verdict was approved. (2D08-835).
The 2nd District Court of Appeal serves the following counties DeSoto, Manatee, Sarasota, Hillsborough, Charlotte, Glades, Collier, Hendry, Lee, Pasco, Polk, Pinellas, Hardee, Highlands).
This verdict shows that a verdict for up to at least $3.8 Million+ for the mental pain and suffering for a husband (spouse) whose wife (spouse) is killed) in Polk County or any cities in the 2nd District Court of Appeal may be approved by the appeals court in a case similar to this one.
Wife Rejects $100K Allstate’s Offer for Husband’s Death Because Allstate Didn’t Send the Policy Affidavit, Sues for More
This isn’t my case. In Cheverie v. Geisser, 783 So.2d 1115 (Fla. 4th DCA 2001), Solanje Cheverie’s husband, Carroll, died on November 7, 1998 as a result of injuries he sustained in a crash.
Marshall Geisser collided with Carroll’s automobile on July 28, 1998.
Allstate insured Geisser. Cheverie offered to settle the wrongful death case against Geisser. One of Cheverie’s settlement conditions was that Allstate send Cheverie’s attorney a policy limits affidavit.
Allstate told Cheverie’s attorney that the bodily injury liability (BIL) insurance limits were $100,000. Despite multiple requests by Cheverie, Allstate didn’t send the policy limits affidavit.
Cheverie sued Geisser. Geisser argued that since Allstate sent Cheverie a check for the $100,000 BIL limits, the case was settled.
Thus, Geisser argued that Cheverie had lost her right to sue because Allstate had met Cheverie’s settlement demand.
Cheverie argued that there was no settlement because Allstate never sent the policy limits affidavit. (She also had other arguments that I won’t get into here.)
The appeals court said that there was no settlement. This is what Cheverie wanted.
If Cheverie were to get a verdict above $100,000, she could argue that Allstate acted in bad faith by failing to produce the affidavit. Allstate may then have to pay the Cheverie the amount that the jury awards. This could be a huge financial win for Cheverie.
(As you’ve seen from the other cases in this article, Florida courts have allowed verdicts as high as $3,841,989 for a spouse’s mental pain and suffering from their spouse’s death. A verdict of that size would be 38 times Allstate’s $100,000 policy limit.)
Thus, Allstate’s possible bad faith could have allowed Cheverie to collect on a verdict that is multiples of its insured’s $100,000 policy limits.
The Broward County Clerk of Court shows that a notice of settlement was filed in Cheverie on February 4, 2002.
I assume that the settlement was for more than the policy limits. Otherwise, I think that Cheverie would have taken the case to trial.
The appeals court said that compliance with Florida Statute Section 627.4137 is not a mere “technicality.” The court said that the legislature recognized the importance of a claimant’s access to this type of information in making settlement decisions.
The production of a policy limits affidavit is an essential term of a settlement.
As you can see, if a liable party has low policy limits, and an insurer doesn’t send you the policy affidavit after you’ve demanded it, it could expose the insurance company to a bad faith verdict.
If Insurance Company Doesn’t Send Policy Affidavit, You May Be Able to Get More Than the Limits
The appeals court ruled that there was no settlement because Allstate, among other things, failed to send a policy limits affidavit. This allowed Cheverie to continue her lawsuit against Geisser.
Court OKs $100,000 for Pain and Suffering to Surviving Wife Because of Marital Issues
This is not my case. An appeals court approved a $100,000 award in non-economic damages to surviving wife where evidence showed that wife suspected husband of cheating.
The couple had informally separated for a period of time.
The case is Hiatt v. United States, 910 F.2d 737 (11th Cir. 1990).
What Happens if Someone’s Spouse is Killed in an Uber or Lyft Accident?
It will depend on whose vehicle the decedent was in at the time of the accident. In most cases, the best scenario for the surviving spouse is if the decedent was a passenger of the Uber or Lyft car when the accident happened.
The spouse has a better case because the decedent’s passenger status means there is always $1 million in bodily injury liability (BIL) insurance available. It’s a combined single limit.
Additionally, the passenger likely had no fault in causing the accident. Thus, case value isn’t lowered due to fault.
Spouse is Killed in a Motorcycle Accident (Settlements)
Let’s assume that someone’s spouse is killed in a motorcycle accident. The toughest part of that case is often that there is limited insurance available. This often results in a husband or wife accepting a smaller motorcycle accident settlement.
However, there are a few scenarios where there may be enough insurance to pay the fair value of the spouse’s wrongful death case.
One is if a tractor trailer hit the spouse. 18 wheelers often have big insurance policies. I’m talking $1 million and up.
Also, if an Uber or Lyft driver caused the crash, there may be up to $1 million of insurance. This assumes that the Uber or Lyft was engaged in a ride. Sometimes there may be even more insurance.
News Stations Have Interviewed Me About Cases Where a Spouse Was Killed
On August 14, 2018, NBC6 interviewed me about a wrongful death lawsuit in Miami. It should air this week.
I can’t disclose it what the case is about until it airs.
Did someone’s carelessness cause the death of your spouse in Florida? Do you have another type of case?
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Editor’s Note: This post was originally published in 2013 and has been updated for accuracy and comprehensiveness. However, it is not legal advice. Always consult with an attorney for your particular situation.
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