In Florida, the Wrongful Death Act allows several types of survivors to recover mental pain and suffering damages if someone’s negligence kills a relative.
The types of survivors who may be awarded mental pain and suffering are:
- Parents of an adult child when there are no other survivors
- Parents of a deceased minor child
- Minor children
- Surviving spouse
- Adult Children where there is not a surviving spouse of the decedent
Florida Statute 768.21(2,3,4)
Example #1 – Parents of an adult child when there are no other survivors
Mike and Maria have 1 child Joe who is 54 years old. Joe is not married and does not have any children. Joe is killed when he is visiting a friend at an apartment complex and he is shot and killed by a criminal.
There was no security at the apartment complex and it was in a high crime area. Mike and Maria bring a wrongful death claim against the apartment complex – for inadequate security – on behalf of the estate, and themselves as survivors.
They are considered survivors because they are parents of an adult child (Joe is not under the age of 25). As survivors, they are allowed to bring a claim for mental pain and suffering and other damages.
Example #2 – Mental Pain and Suffering for Parents of a deceased minor child
Mike and Maria have 1 child Joe is 24 years old. Joe is killed when he is stopped in traffic and an 18 wheeler tractor-trailer crashes into the back of his car.
Mike and Maria bring a wrongful death claim against some of the parties that you can sue in an auto accident case, including but not limited to the 18 wheeler tractor-trailer driver, the owner of the truck, the employer of the driver and the dispatching company.
Mike and Mary bring the claim on behalf of the estate, and themselves as survivors. The amount that the survivors can recover for mental pain and suffering is reduced by the decedent’s comparative fault.
Let’s assume that there is not enough liability insurance to pay for the value of the wrongful death claim. Mike and Mary can also make a claim against the uninsured/underinsured motorist (UM/UIM) insurance company if Joe is an insured under any available UM coverage.
Mike and Mary are considered survivors because they are parents of a minor child (Joe is under the age of 25). As survivors, they are allowed to bring a claim for mental pain and suffering and other damages.
Example #3 – Mental Pain and Suffering for Minor children
Mike and Maria have 1 child Joe is 24 years old. Mike and Maria are killed in a car accident on the highway when they are hit by a drunk driver. Joe can bring a wrongful death claim against the drunk driver, the owner of the vehicle and the employer of the drunk driver (if applicable).
Joe brings a claim on behalf of the estate, and himself as a survivor.
He is considered a survivor because he is a minor child (Joe is under the age of 25). As a survivor, he is allowed to bring a claim for mental pain and suffering and other damages.
Punitive damages (in this case because the driver was drunk) are also recoverable in a wrongful death case. The amount that the survivor can recover for mental pain and suffering is reduced by the decedent’s comparative fault.
Example #4 – Pain and Suffering for Surviving spouse
Mike and Maria are married. Mike is killed when he driving his car on the highway and he is hit by a drunk driver.
Let’s assume the driver was careless. Maria can bring a wrongful death claim against the driver of the vehicle, the owner of the vehicle and the employer of the driver (if applicable).
Maria can bring a wrongful death claim on behalf of the estate, and herself as a survivor. She is considered a survivor because she is a spouse of the decedent.
As a survivor, she is allowed to bring a claim for mental pain and suffering and other damages. The amount that the survivor can recover for mental pain and suffering is reduced by the decedent’s comparative fault.
I handled a case very similar to this. Unfortunately, there was only $10,000 in liability insurance and I withdrew from the case.
Example #5 – Adult Children where there is not a surviving spouse of the decedent
Mike is not married and has 2 kids, Joe and Andy. Mike is killed when he is a pedestrian and he is crossing the street and he is hit by car. Whether the driver of the car is at fault for hitting the pedestrian depends on many factors.
But let’s assume that the driver of the car was at fault. Joe and Andy can bring a wrongful death claim against the driver of the vehicle, the owner of the vehicle and the employer of the driver (if applicable). Joe and Andy can bring a wrongful death claim on behalf of the estate, and themselves as survivors.
They are considered survivors because they are the adult children (not under the age of 25) and their father is not married. As survivors, they are allowed to bring a claim for mental pain and suffering and other damages.
The amount that the survivor can recover for mental pain and suffering is reduced by the decedent’s comparative fault.
I was hired by an adult child of the decedent to hire a case very similar to this. Unfortunately, there was only $20,000 in liability insurance and I withdrew from the case.
This article does not talk about the damages that may be recovered by the decedent’s estate, which are separate from the damages that a decedent’s survivors may get.
The article just talks about mental pain and suffering and not the other damages. You may want to read an article that I wrote about how to divide a wrongful death settlement between the survivors and the estate.
So how do you calculate how much money one of the above survivors will get for mental pain and suffering? In Florida, it is up to the jury to decide.
The amount that a jury may award in each case may be very different. Most cases settle either before a lawsuit is filed, or during the litigation but before trial. One of the reasons is that often times the at-fault party has limited insurance available.
This is particularly true in an automobile accident where bodily injury (B.I.) liability insurance is not required in Florida. Uninsured motorist coverage is also not required in an automobile insurance policy in Florida. The amount that a survivor can recover for mental pain and suffering is reduced by the decedent’s comparative fault.
Assuming the at-fault party has enough money – or there is plenty of insurance – to pay for the full value of your mental pain and suffering, there is no exact science to know how much you can get for pain and suffering.
Sometimes the court will allow you to have an expert – usually a psychologist – speak about your grief so that the jury can get a better understanding of your mental pain and suffering.
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Editor’s Note: This post was originally published in March 2013 and has been completely revamped and updated.
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