Under Florida’s Survival Statute, most causes of action, including torts, may be commenced after the death of a party on the behalf of the decedent as prescribed by law. The personal representative of the decedent can bring a survival action under Florida Statute § 46.021, if the decedent’s death was caused by conduct other than the conduct alleged in the underlying personal injury action. Additionally, there is no abatement of a personal injury action if the plaintiff dies after the rendition of a verdict, but before the entry of a final judgment. Moreover, if a plaintiff dies while the personal injury action is pending appeal, or while post-trial motions remain undecided, the action will not abate. A survival action is properly brought by a personal representative. The personal representative will be awarded no more or less than the decedent would have received, had he or she lived. However, the survival statute does not apply to a cause of action for personal injuries that result in death.

Additionally, a decedent’s personal representative cannot bring a cause of action under Florida Statute § 400.023(1), on behalf of a deceased nursing home resident for violations of the resident’s statutory rights, which resulted in the resident’s death. The personal representative can however, maintain a survival action based on negligence, and refer to the nursing home residents’ rights enumerate in Florida Statute § 400.022. An experienced Florida plaintiff’s attorney should seek a special instruction that enumerates nursing home residents’ rights as set out in Florida Statute § 400.022 and tells the jury that a violation of the statute constitutes negligence.

If you have recently lost a loved one and believe you may have a survival cause of action, Call the attorneys at Sharmin & Sharmin P.A. 1-800-74-TRIAL.