This past Friday USA Today headlined the American Automobile Association’s new report that assesses the losses involved in car crashes causing deaths in America. The result: six million dollars. Read the full article.
Although every case is unique, this finding, using Federal Highway Administration data, is no surprise to personal injury and wrongful death attorneys who see the devastation in families when negligence on the highways results in death.
AAA reported that besides property damage its assessment of the loss caused by negligent death includes lost earnings; loss of household activities; medical costs; emergency services; travel delays; vocational rehabilitation; lost time at work; administrative costs; legal costs; and pain and lost quality of life. Full AAA report.
Florida law has long provided for determining the value of loss when a death is caused by negligence. A statute called the Wrongful Death Act sets the rules. Before 1972, the pain and suffering of the victim was the key factor under what was called the Survival Statute. An additional measure of damages was loss of wages and other economic losses.
The legislature concluded that, since it was impossible to compensate the dead, the losses of the living loved ones should be the primary measure of compensation for wrongful death. So, the mental pain and suffering of the close family became the measure, as well as the loss of financial support and services and what are called the “net accumulations” the wrongful death victim would have had but for untimely death.
In Martin v. United Security Services, Inc., 314 So. 2d 765 (Fla. 1975) the Florida Supreme Court upheld the constitutionality of the changes and stated:
We hold that Sections 768.16-768.27, Florida Statutes, are constitutional to the extent that they consolidate survival and wrongful death actions and substitute for a decedent’s pain and suffering the survivors’ pain and suffering as an element of damages. We further hold that punitive damages are not eliminated by the Act and may be recovered once for each death in an action under said sections if the facts justify the imposition of this penalty.
Each state has its own laws for measuring compensation when negligent acts cause death. For example, Georgia has a broad measure, the value of the life of the wrongful death victim.
The Florida Constitution protects the right to a jury trial to decide the compensation for a wrongful death. This, the right to jury trial, is an important right preserved for the people by the founders of both the U.S. Constitution and the Florida Constitution. When a person or corporation negligently causes death, they and their insurance company run the risk that the jury will have a full understanding of the value of the damage done and they often choose to settle to avoid the risks of trial. If there is not a settlement, the jury, informed by the evidence presented by the attorneys for the survivors of the victim, decides by their verdict the compensation the wrongdoer must pay.
In recent years, special interest groups have gotten the Florida legislature to adopt so-called “tort reform.” This has taken the form of prejudice, with legislators arbitrarily prejudging the value of the losses suffered by the families of those killed by certain kinds of negligence. This violates the Florida Constitution, and it is hoped that the courts will declare these special interest prejudices unconstitutional.
At other times (1984 and 1988) efforts have been made by defenders of the negligent to keep juries from fully compensating the families of those killed by negligence. To do this they have tried to amend the Florida Constitution; fortunately, first the courts and then the people of Florida have rejected this effort to put prejudice into the Florida Constitution.
In the end, constant vigilance by attorneys for the people of Florida has protected the right to jury trial, and, through the Florida Justice Association and its members, that vigilance will continue.