Florida Wrongful Death Lawsuits Are Derivative of the Underlying Tort

When someone is killed due to the negligence of another party, the survivors of the deceased may be entitled to financial compensation for their loss through a Florida wrongful death lawsuit. In order to succeed in a wrongful death lawsuit, a plaintiff must establish that their loved one’s death was a result of a negligent act or omission of the defendant.

Legal News GavelOne issue that frequently comes up in wrongful death lawsuits, especially those arising in the context of nursing home abuse or neglect, is whether an arbitration agreement between the deceased and the defendant can be enforced against a survivor of the deceased when they file a wrongful death lawsuit. The short answer, in Florida, is “yes.”

A recent case in another state clearly illustrates the issue of derivativeness and its importance.

The Facts of the Case

The plaintiff’s father was a resident in the defendant nursing home. Prior to being admitted, the nursing home requested that the resident sign a pre-admission contract containing an arbitration agreement. However, since the resident was unable to sign, the form was stamped “unable to sign,” and the plaintiff signed his name where his father’s signature was required.

Five days after the resident was admitted to the defendant nursing home, the resident passed away. The plaintiff claimed that his father’s death was a result of the nursing home’s negligence and filed a personal injury lawsuit. The nursing home defended against the claim, arguing that it should have been submitted to arbitration and pointing to the arbitration agreement the plaintiff signed on his father’s behalf.

The court in this jurisdiction, however, had previously determined that wrongful death lawsuits are an independent claim and are not derivative of the underlying tort. Thus, the arbitration agreement was not enforceable against the plaintiff.

The Derivativeness of Florida Wrongful Death Lawsuits

States are split regarding whether they consider a wrongful death lawsuit an independent lawsuit that arises out of a potential violation of the surviving plaintiff’s rights, or whether a wrongful death lawsuit is derivative of the underlying tort that was allegedly committed against the deceased. In a 2013 case, the Supreme Court of Florida determined that a wrongful death lawsuit is derivative in nature, so any defense that a defendant could claim in a case brought by the deceased could also be used in a case brought by the survivor of the deceased. Thus, in Florida, it is very likely that the case discussed above would not have ended in the same result. That being said, not all arbitration agreements are valid, and anyone considering a nursing home lawsuit should consult with a dedicated Florida nursing home attorney.

Is Your Loved One at Risk?

If you have a loved one in a Florida nursing home, and you believe that they may have been subject to abuse or neglect, you should reach out to an attorney at the South Florida personal injury law firm of Friedman, Rodman & Frank. At Friedman, Rodman & Frank, we represent nursing home residents and their families in a wide range of personal injury lawsuits, including those involving Florida nursing home abuse or neglect. To learn more, and to speak with an attorney about your case, call 877-448-8585 to schedule a free consultation.

More Blog Posts:

Court Discusses Official Government Immunity in Recent Wrongful Death Case, South Florida Personal Injury Lawyers Blog, published February 19, 2017.

Additur and Remittur: A Judge’s Ability to Adjust a Jury’s Verdict in Florida, South Florida Personal Injury Lawyers Blog, published March 5, 2018.

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