In a wrongful death case, once the jury reaches a verdict and determines all recoverable damages, the court must reduce the amount of any award by the total of all amounts that have been paid for the benefit of the claimant, by amounts that are available to the claimant from all collateral sources. However, the court cannot reduce the awarded amounts by collateral sources if a subrogation or a reimbursement right exists. For example, life insurance benefits available to a claimant are specifically excluded and cannot be used to reduce the claimant’s award of damages. Additionally, if a subrogation right exists, a defendant is not entitled to a setoff even if the entity that holds the subrogation right expressly waives the right. Therefore, even if an entity waives their subrogation right the tortfeasor is not entitled to a reduction for the collateral source payments.

Another amount that may reduce the plaintiff’s award is the litigation and attorneys fees incurred during the plaintiff’s litigation. Litigation expenses and attorney fees are paid by the personal representative of the decedent from the awards of the survivors and the estate in proportion to the amounts awarded to them. However, if the expenses are incurred for the benefit of an individual survivor or for the estate, the expenses shall be paid directly from the amounts awarded to that particular survivor or the estate. If the survivors have competing claims and are represented by different attorneys, the court must determine the attorneys’ fee awards by compensating the personal representative’s attorney out of the total settlement proceeds, and deducting the amount necessary to compensate the other survivors’ attorneys for their services.

A West Palm Beach wrongful death attorney will ensure that the jury receives the appropriate jury instructions, since the jury determines the total amount of damages and the court reduces the collateral source benefits from the jury’s award. For an experienced wrongful death attorney call Sharmin & Sharmin P.A. 1-800-74-TRIAL.