nder the Wrongful Death Act, the purpose of a wrongful death action is to allow recovery by the living survivors and not their deceased loved one. A cause of action for wrongful death can result from conduct that results from a wrongful act, negligence, default or breach of contract or warranty. However, if the wrongful death action is based on a negligence claim, both causes of action cannot exist at the same time since the wrongful death action does not accrue until the decedent’s death, which eliminates the personal injury action that existed in favor of the negligently injured plaintiff. Therefore, in a wrongful death cause of action, if a personal injury results in the death of the decedent, the cause of action for personal injury on the behalf of the decedent is eliminated. Additionally, if a personal injury action is pending at the time of the decedent’s death, the action will be abated. The decedent’s personal injury action or the right to bring an action merges with the surviving beneficiaries’ right to bring a cause of action for wrongful death. If the decedent claimed damages for pain and suffering, those claims will be transferred to the survivors.

However, there are some exceptions to the merging and abatement of the decedent’s personal injury claim. 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.

These complexities may arise in your wrongful death case; therefore, you need a qualified Florida wrongful death attorney. Call Sharmin & Sharmin P.A. 1-800-74-TRIAL.