CopyCited 285 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 154, 1985 Fla. LEXIS 3223
...Calmari & J. Perillo, Contracts §§ 17-2, 17-6 (2d ed. *280 1977). Therefore, Lucille McCarson would not have been able to maintain a cause of action either for breach of contract or for bad faith dealing on the contract. Florida's Wrongful Death Act, in section 768.19, Florida Statutes (1981), requires, as a condition precedent to bringing the action for wrongful death, that the decedent have a cause of action on which she could have brought suit had she survived....
CopyCited 159 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 52, 2009 Fla. LEXIS 138, 2009 WL 196394
...[I]f the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility."). Accordingly, we hold that the complaint states a negligence-based wrongful-death cause of action against the Sheriff of Marion County. See § 768.19, Fla....
CopyCited 89 times | Published | Supreme Court of Florida | 2004 WL 2922097
...cribed by law." §
46.021, Fla. Stat. (1997). The Wrongful Death Act, on the other hand, permits a cause of action "[w]hen the death of a person is caused by *9 the wrongful act, negligence, default, or breach of contract or warranty of any person." §
768.19, Fla....
...At the risk of oversimplifying what is perhaps a more complex problem, we are inclined to think it is fundamental that the wrongful death statute is not applicable except in wrongful death actions, i.e., where it is claimed that the death of a person was "caused by the wrongful act, negligence, [or] default ..." of another. § 768.19, Florida Statutes (1983)....
CopyCited 62 times | Published | Supreme Court of Florida
...New Consolidated Statutory Action for a Death by Wrongful Act The new statutes, styled the "Florida Wrongful Death Act," [14] are a product of the Florida Law Revision Commission [15] and were intended to merge the survival action for personal injuries and the wrongful death action into one lawsuit. Section 768.19 [16] of the new Act provides for a cause of action in wording similar to that of now repealed Section 768.01....
...The findings and recommendations of the Commission with regard to the new Wrongful Death Act were embodied in its pamphlet entitled Florida Law Revision Commission, Recommendations and Report on Florida Wrongful Death Statutes (December 1969). [16] § 768.19, F.S....
CopyCited 45 times | Published | Supreme Court of Florida
...Page, Jr., Page & White, Orlando, for James and Cecilia Algood, amicus curiae. Robert Orseck, Podhurst, Orseck & Parks, Miami, for Academy of Florida Trial Lawyers, amicus curiae. HATCHETT, Justice. This is an action for wrongful death brought under Florida's Wrongful Death Act [Section 768.19, Florida Statutes (1973)]....
...Miller was seven months pregnant. Her child was subsequently stillborn. It is her contention that at the time of the accident the unborn child was viable and would have survived but for the accident. The Millers brought an action for wrongful death pursuant to Section 768.19, Florida Statutes (1973), which reads: When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would h...
...l be liable for damages as specified in this act notwithstanding the death of the persons injured, although death was caused under circumstances constituting a felony. The trial court ruled that a viable fetus is not a "person" within the meaning of Section 768.19 and dismissed respondents' complaint for failure to state a cause of action....
...4th DCA 1976). The District Court then certified its decision to this court to decide questions of great public interest: 1. Whether an unborn, viable child killed as a direct and proximate result of another's negligence, is a "person" within the intent of Section 768.19, Florida Statutes (1973)? 2....
...If so, what are the types of damages recoverable for the wrongful death of a viable, unborn child? We have jurisdiction. [1] An action for wrongful death is a creature of statute, unknown to the common *305 law. If the respondents have a cause of action, it must be founded on Section 768.19, Florida Statutes....
CopyCited 39 times | Published | Florida 4th District Court of Appeal
...ntained in Fla. Stat. §
47.011 controls, consistent with the law and rationale of the Florida cases herein cited, and the law generally in other jurisdictions. 22 Am.Jur.2d, Death, § 189 (1965); Annot., 36 ALR2d 1146, 1150, § 4 (1954). Fla. Stat. §
768.19, reads as follows: "When the death of a person is caused by the wrongful act, negligence, ......
CopyCited 36 times | Published | Supreme Court of Florida
...We take the view contrary to that of the district court of appeal and hold that the judgment for personal injuries rendered in favor of the injured party while living barred the subsequent wrongful death action based on the same tortious conduct. Our holding is based upon the language contained in section 768.19, Florida Statutes (1981), which provides: When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event woul...
...Once the defendant has compensated his victim for his wrongdoing, he must be freed from the fear of future liability to another party arising from that same act against that same victim. OVERTON, J., concurs. ADKINS, Justice, dissenting. The question before the Court is one of statutory interpretation. Section 768.19, Florida Statutes, requires that the initial injury be one that "would have entitled the person injured to maintain an action and recover damages if death had not ensued." This language is capable of two different interpretations....
CopyCited 24 times | Published | Court of Appeals for the Eleventh Circuit | 1988 U.S. App. LEXIS 2498, 1988 WL 9630
...epresentative of Charlie Brown's estate, as party plaintiff in the suit originally commenced by Charlie Brown. At the same time, the attorney moved the court to amend the complaint so as to set forth an action for wrongful death under Fla.Stat. Sec. 768.19 (1985)....
...rial defendants had also been transformed into a wrongful death suit. As in the federal court suit, Dewey Brown had been substituted as plaintiff. Furthermore, as in the federal court suit, the wrongful death claims were brought under Fla.Stat. Sec. 768.19 (1985)....
...arose when Charlie Brown died." The Florida Wrongful Death Act provides that a wrongful death action may be maintained on behalf of statutory beneficiaries if the decedent was entitled to bring an action based on the wrongful event. See Fla.Stat. Secs. 768.19-.20 (1985)....
...ill not be hampered by permitting plaintiffs to forgo a second administrative claim in wrongful death actions. In Florida a wrongful death action depends on the same proof of negligence needed to maintain a personal injury action. See Fla.Stat. Sec. 768.19 (1985)....
CopyCited 19 times | Published | Florida 4th District Court of Appeal
...Suffice to say we are persuaded by the dictum in Orefice, supra, because we perceive no reason not to apply the doctrine of interspousal immunity to a wrongful death claim by the personal representative of a deceased wife's estate against her erstwhile husband. Section 768.19, Florida Statutes (1975), provides, among other things, that when a death is caused by the wrongful act or negligence of a person and the event would have entitled the person injured to maintain *156 an action and recover damages if de...
CopyCited 17 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 256, 1987 Fla. LEXIS 1923
...In August 1981, Jay Phlieger was killed as a result of an allegedly defective roof design in his Nissan truck. In June 1983, less than two years after Mr. Phlieger's death, his widow, in her capacity as his personal representative (respondent herein), filed a wrongful death action against Nissan, pursuant to section 768.19, Florida Statutes (1983)....
...years after the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered. The district court reasoned that since this action was a wrongful death action pursuant to section
768.19 [1] rather than a products liability action, "by its very language, section
95.031(2) does not apply and, rather, the two year statute of limitations for wrongful death actions found in section
95.11(4)(d) applies."
487 So.2d at 1097....
...iance upon existing law pertaining *718 to the length of time within which they could bring suit. Therefore, I concur with the result reached by the majority opinion, but I do so for entirely different reasons than those expressed therein. NOTES [1] § 768.19, Fla....
CopyCited 17 times | Published | Supreme Court of Florida | 28 Fla. L. Weekly Supp. 122, 2003 Fla. LEXIS 166, 2003 WL 252155
...The survivors that can recover damages are statutorily defined to be "the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters." §
768.18(1), Fla. Stat. (1997). Section
768.19, Florida Statutes (1997), explains when an action for wrongful death may be brought, while
768.20, Florida Statutes (1997), explains: The action shall be brought by the decedent's personal representative, who shall recover for the bene...
CopyCited 15 times | Published | Supreme Court of Florida | 27 Fla. L. Weekly Supp. 915, 2002 Fla. LEXIS 2270, 2002 WL 31426259
...action from existing altogether. See Toombs v. Alamo Rent-A-Car,
762 So.2d 1040, 1042 (Fla. 5th DCA 2000). Accordingly, the Fifth District affirmed the trial court's order granting summary judgment and certified conflict with Alley. Id. [4] ANALYSIS Section
768.19, Florida Statutes (1995), which defines the right of action under the Wrongful Death Act (the Act), provides: When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any perso...
...n or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony. § 768.19, Fla....
...ter of law. [4] The summary judgment granted by the trial court did not affect the claim for personal injuries on behalf of Stuttard's minor daughter. [5] The accident which gave rise to the instant wrongful death action occurred on January 8, 1996. Section 768.19 has remained unchanged since its enactment in 1972....
CopyCited 15 times | Published | Supreme Court of Florida
...FOR A NEGLIGENT TORT CAUSING INJURY OR DEATH?
419 So.2d at 1154. The cause before the trial court was an action for wrongful death brought by the personal representative of Carole Tubbs's estate. The relevant part of the Florida Wrongful Death Act, Section
768.19, Florida Statutes (1977), provided: When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have...
...Sessions,
80 So.2d 905 (Fla. 1955). Contrary to the majority's view, the proper focus of Florida's wrongful death act is the language "the event would have entitled the person injured to maintain an action and recover damages if death had not ensued." §
768.19, Fla....
...view of this particular language of the wrongful death act, the trial court correctly dismissed the action seeking damages for the wife's estate. *795 The Fifth District Court in the present case recognized that Raisen v. Raisen and the language of section 768.19 would compel this result....
...unity. I would therefore answer the certified question in the negative and hold that the doctrine of interspousal immunity is not waived to the extent of available liability insurance. NOTES [1] Section 768.01, Fla. Stat. (1953), the counter-part to § 768.19, Fla....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...consequent damage until a later date. The court found that Nancy's cause of action was barred in March 1975 by the two-year statute of limitations for claims based upon medical malpractice. The court further found: *1040 ... Under the provisions of section 768.19 and Florida decisionary law, a bar to the decedent's right to recovery for her personal injury had she lived will also bar any subsequent recovery for her wrongful death by her personal representative; and that since decedent would not have been entitled within the intendment of § 768.19 to maintain an action if death had not ensued, her personal representative has no statutory right of action for wrongful death....
CopyCited 12 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 102, 2013 WL 535417, 2013 Fla. LEXIS 249
...tion is predicated on the “wrongful act, negli *757 gence, default or breach of contract or warranty” committed by the defendant which, as the result of the decedent’s death, transformed a personal injury claim into one for wrongful death. See § 768.19, Fla....
...n or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony. § 768.19, Fla....
...Douglas,
654 So.2d 118, 119-20 (Fla.1995). The right of the survivors to recover is predicated in the Act on the decedent’s right to recover. In other words, recovery is precluded if the decedent could not have maintained an action and recovered damages if death had not ensued. Section
768.19, Florida Statutes (2008), provides for a cause of action “[w]hen the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, ......
...an action is predicated on the “wrongful act, negligence, default or breach of contract or warranty” committed by the defendant which, as the result of the decedent’s death, transformed a personal injury claim into one for wrongful death. See § 768.19, Fla....
...nd by the decedent’s agreement to arbitrate. The estate and heirs stand in the shoes of the decedent for purposes of whether the defendant is liable and are bound by the decedent’s actions and contracts with respect to defenses and releases. See § 768.19, Fla....
CopyCited 11 times | Published | District Court, S.D. Florida | 1990 U.S. Dist. LEXIS 12494, 1990 WL 138866
...The Plaintiffs seek damages through the Florida Wrongful Death Act and the Florida Survivor Statute, as well as under the common law tort of civil conspiracy. An important commonality involving both statutory causes of action under the Florida Wrongful Death Act, Fla.Stat. § 768.19, [4] and the Florida Survivor Statute, Fla.Stat....
...and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person ... [who] would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured.... Fla.Stat. § 768.19 (emphasis added)....
CopyCited 11 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 402, 2013 WL 2631180, 2013 Fla. LEXIS 1180
...Section
46.021, titled “Actions; surviving death of party,” provides: No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law. This law has remained substantively unchanged since 1951. Section
768.19 of the Florida Wrongful Death Act provides: When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event wo...
...n or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony. § 768.19, Fla....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal
...Appellants filed this appeal in the Supreme Court which transferred it here. Section
46.021, Florida Statutes (1975), provides in part: "Actions; surviving death of party. No cause of action dies with the person. All causes of action survive and may be commenced ... in the name of the person prescribed by law." Section
768.19, Florida Statutes (1975), reads in part: "When the death of a person is caused by the wrongful act, negligence ......
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...before the suit for wrongful death was filed, appellant could not recover from appellees on the wrongful death claim. The question presented in this case boils down to whether, based on the language found in the wrongful death statute, specifically Section
768.19, Florida Statutes, the wrongful death claim is barred by the running of the limitations period with regard to Ela Hudson's personal injury suit, even though ordinarily the limitations period for a wrongful death action is two years, Section
95.11(4)(d), Florida Statutes. Section
768.19 provides: When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injur...
CopyCited 7 times | Published | Florida 3rd District Court of Appeal
...The trial court denied plaintiff's motion to strike these defenses on the grounds that they were valid defenses, then entered a Final Summary Judgment for the hospital. The parties agree that resolution of the main issue pivots on the interpretation to be given certain language in the Florida Wrongful Death Act, Section 768.19, Florida Statutes (1979)....
...on the part of the defendant, under circumstances giving rise to liability in the first instance, rather then to subsequent changes in the situation affecting only the interest of the decedent"). The Florida Supreme Court has consistently found that Section 768.19, Florida Statutes (1979), Wrongful Death Act, creates an independent cause of action in the statutory beneficiaries....
...Appellant is correct in arguing that under Florida law, the statutory language refers to the qualifying nature of the "event," and not to whether the decedent ever sued in his lifetime. Epps v. Railway Express Agency, supra . In Warren v. Cohen,
363 So.2d 129 (Fla. 3d DCA 1978), the Third District Court of Appeal agreed that Section
768.19 created an independent cause of action but for public policy reasons held that a release executed by deceased bars a subsequent action for wrongful death....
...tions
768.16-768.27, Florida Statutes (1979), the plaintiff relies heavily upon the Florida Supreme Court decision in Shiver v. Sessions,
80 So.2d 905 (Fla. 1955). It is agreed that this issue must be determined through an interpretation of the Act. Section
768.19 thereof provides: When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the pers...
...Manhattan Brewing Co.,
103 F. Supp. 744 (N.D.Ill. 1952), brought under the Indiana wrongful death statute, is a settlement case. The holding in Warren v. Cohen, supra, at 131, is limited to a "release signed by the decedent prior to her death." [1] §
768.19, Fla....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal
...But, the Fourth District Court of Appeal in Miller v. Highlands Ins. Co.,
336 So.2d 636 (Fla. 4th DCA 1976), recognized the trend of allowing recovery of prenatal injuries to viable children and concluded that a viable unborn child is a "person" within the meaning of Section
768.19....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 2124, 1987 Fla. App. LEXIS 10326
...85,
15 So. 876 (1894). Relying on these decisions, several district court decisions have also recognized the rule that the decedent must have a valid cause of action at his death as a condition precedent to his survivor bringing a cause of action under section
768.19....
...n or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony. § 768.19, Fla....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 11 Fla. L. Weekly 743, 1986 Fla. App. LEXIS 7060
...The trial court agreed and entered summary judgment in favor of Nissan. On appeal, Mrs. Phlieger argues that the trial court erred in applying the products liability statute of repose to bar her suit. Mrs. Phlieger brought this wrongful death action pursuant to section 768.19, Florida Statutes (1983) which provides as follows: Right of action....
...f the completed product to its original purchaser regardless of the date the defect was discovered. Here, however, the action, although admittedly based on negligence, strict liability, and breach of warranty, was a wrongful death action pursuant to section 768.19....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...Harper Field of Keen, O'Kelley & Spitz, Tallahassee, for defendants. McCORD, Judge. This case is brought before us as a certified question from the Circuit Court, Gulf County, Florida. The question presented is: Is a full term, viable, but stillborn fetus a "person" within the meaning of § 768.19, Florida Statutes, 1973? Although none of the parties have raised the point of the propriety of this action as a certified question and appear to be desirous that we treat it as such, it does not meet the test of Rule 4.6, Florida Appellate Rules, for a certified question....
...The effect of the dismissal was a ruling by the trial court that no cause of action exists under the death by wrongful act statute on behalf of any estate of the fetus; that a full term, viable, but stillborn fetus is not a "person" within the meaning of the wrongful death statute, § 768.19, Florida Statutes....
..." (Emphasis supplied) While the above italicized statement of the Supreme Court was dictum in Stokes, it reflects the view of the Supreme Court as to the proper construction of the then death by wrongful act statute. Petitioners contend that the word "person" in § 768.19, Florida Statutes, 1973, should be construed to include a viable, unborn fetus....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 1569
...At the risk of oversimplifying what is perhaps a more complex problem, we are inclined to think it is fundamental that the wrongful death statute is not applicable except in wrongful death actions, i.e., where it is claimed that the death of a person was "caused by the wrongful act, negligence, [or] default ..." of another. § 768.19, Florida Statutes (1983)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 12 Fla. L. Weekly 2407
...against them. A We have no trouble in summarily rejecting the plaintiffs' first point on appeal. The law in Florida is well settled that a wrongful death claim, as here, does not lie for the wrongful death of a fetus, regardless of viability, under Section 768.19, Florida Statutes (1983), because a fetus is not a "person" under the above statute....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 14543, 2010 WL 3808683
..., such an action is predicated on the "wrongful act, negligence, default or breach of contract or warranty" committed by the defendant which, as the result of the decedent's death, transformed a personal injury claim into one for wrongful death. See § 768.19, Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1995 WL 653331
...Prior to its amendment in 1972, Florida's wrongful death statute, section 758.01, began: "Whenever the death of any person in this state shall be caused by the wrongful act... ." This portion of the statute was amended in 1972 so that it now begins, in section 768.19, Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2013 WL 6212039, 2013 Fla. App. LEXIS 18916
...its duty to patrol continuously was the proximate cause of Giangrandi’s death. In wrongful death actions, the plaintiff has the burden of proving that the “wrongful act, negligence, default, or breach of contract or warranty” caused the death. § 768.19, Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2014 WL 2781819, 2014 Fla. App. LEXIS 9338
...In Capone, the supreme court addressed whether, after a party plaintiffs death, a personal injury action can be amended to add a wrongful death claim and substitute the personal representative of the estate as the party. 3 Id. at 373. The supreme court held that Florida’s Wrongful Death Act, section 768.19, Florida Statutes (2008), did not require dismissal of a pending personal injury action....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 10491, 2009 WL 2342722
...the person ... that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony. § 768.19, Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1976 Fla. App. LEXIS 15359
..., Florida Statutes (1973). An action for wrongful death is entirely a creature of statute, being unknown to common law. If Kathryn Miller and her husband have a cause of action for the wrongful death of their unborn, viable child it must be based on § 768.19, which provides: "When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person in...
...cumstances constituting a felony." The primary issue on this appeal, and the question which we must first decide, is whether an unborn, viable child, killed as a direct and proximate result of another's negligence, is a "person" within the intent of § 768.19....
...e hold that a stillborn fetus is not within the statutory classification... . [O]ur judgment is concluded primarily by the particular language of the Florida Statute in the light of its historical background." (At 700.) A condition of recovery under § 768.19 is that "......
...Nationwide Mutual Insurance Co., supra, and hold that the Miller child, if it had survived and had been born alive would have been entitled to maintain an action and recover damages for its prenatal injuries. We now reach the crucial question of whether an unborn but viable child is a "person" within the meaning of § 768.19....
...or the tortious destruction of a human life." (At 55.) We conclude that the better view is that which allows a cause of action for the wrongful death of a viable, unborn child. In our opinion a viable unborn child is a "person" within the meaning of §
768.19. We have not overlooked the case of Davis v. Simpson,
313 So.2d 796 (Fla. 1st DCA 1975), wherein the First District Court of Appeal reached a contrary conclusion, holding that the term "person" within the meaning of §
768.19 does not include a full *641 term, viable, but stillborn fetus....
...Our Constitution recognizes that the District Courts of Appeal may from time to time have divergent opinions. A procedure exists by which conflicts may be resolved and the law brought into harmony. Article V, Section 3(b)(3), Florida Constitution. Having determined that under § 768.19 there is a cause of action for the wrongful death of a viable, unborn child we are faced with the secondary question of damages....
...Under the current wrongful death statutes, which represent a new departure on the entire subject, the element of damage created by §
768.21(4) is merely a statement of one of the modes of recovery available once the right of action has been established under §
768.19....
...In view of the legislative mandate that this statute is remedial and shall be liberally construed we hold that the Legislature intended to include a viable, unborn child within the meaning of the term "minor child" in §
768.21(4). In summary we hold that a viable, unborn child is a "person" within the meaning of §
768.19, and that a cause of action exists for the wrongful death of such a child....
CopyCited 3 times | Published | Florida 5th District Court of Appeal
...Does the doctrine of either interspousal or interfamily immunity bar a wrongful death action on behalf of the deceased wife's children against the deceased husband's estate and his insurer, when the claim is for the coverage provided by the husband's liability insurance policy? Section 768.19, Florida Statutes (1977) says: When the death of a person is caused by the wrongful act, negligence, default or breach of contract or warranty of any person ......
CopyCited 3 times | Published | District Court, M.D. Florida | 2000 U.S. Dist. LEXIS 8485, 2000 WL 781042
...l activities protected by state law immunities; and (7) Plaintiff's statement that police officers were "conducting themselves in a careless and negligent manner" does not state sufficiently the conduct alleged to be negligent. *1348 Florida Statute § 768.19, in pertinent part, states: When the death of a person is caused by the wrongful act, negligence, default, breach of contract, or warranty of any person ......
CopyCited 3 times | Published | Supreme Court of Florida
...Borgmann, ACLU Cooperating Counsel, New York City, for American Civil Liberties Union Foundation and American Civil *483 Liberties Union Foundation of Florida, Inc., Amici Curiae. PER CURIAM. We have for review a decision of the district court certifying the question of whether a fetus is a person within the meaning of section 768.19, Florida Statutes (1993) (Florida Wrongful Death Act)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1999 WL 43516
...The issue before us depends upon the construction of the language of the Wrongful Death Act, which conditions a decedent's survivors' cause of action upon the right of the decedent, if the decedent had lived, to have maintained an action and recovered damages arising out of the event. The Wrongful Death Act, section 768.19, Florida Statutes (1995), provides in part: [W]hen the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event...
...(Emphasis supplied; citations omitted.) In citing Shiver with approval and quoting the above statement from Perkins with approval, our supreme court in Phlieger cautions against narrowly interpreting Perkins as follows: The district court reasoned that since this action was a wrongful death action pursuant to section
768.19 rather than a products liability action, "by its very language, section
95.031(2) does not apply and, rather, the two year statute of limitations for wrongful death actions found in section
95.11(4)(d) applies." 487 So.2d at 1097....
CopyCited 3 times | Published | District Court, M.D. Florida | 2010 U.S. Dist. LEXIS 42267, 2010 WL 1742086
...The Act provides a right of action "[w]hen the death of a person is caused by the wrongful act [or] negligence . . . of any person . . . and the event would have entitled the person to maintain an action and recover damages if death had not ensued." Id. § 768.19....
...As earlier noted, the Act provides a right of action "[w]hen the death of a person is caused by the wrongful act [or] negligence . . . of any person . . . and the event would have entitled the person to maintain an action and recover damages if death had not ensued." § 768.19, Fla....
CopyCited 2 times | Published | District Court, M.D. Florida | 2014 U.S. Dist. LEXIS 133727, 2014 WL 4542998
...eath Act (the “Wrongful Death Act”), which provides that when the “death of a person is caused by the wrongful act, [or] negligence ... of any person,” that person remains liable notwithstanding the death of the harmed individual. Fla. Stat. § 768.19 ....
...njury to the original plaintiffs—the allegedly wrongful conduct of the Defendants. See Am. Class Action Compl. Compensatory & Punitive Damages ¶¶ 55-84, Engle v. R.J. Reynolds, No. 94:08273 CA (20) (Fla. Cir. Ct. Dade County); cf. Fla. Stat. § 768.19 (stating that wrongful death and personal injury both require that the injury or death “is caused by the wrongful act [or] negligence ......
...3:09-cv-10000-WGY, ECF No. 835. In order properly to adjudge this issue, it is first necessary to distinguish between a' suit brought under the survival action statute, Fla. Stat. §
46.021 , and a suit brought under the Wrongful Death Act, Fla. Stat. §
768.19 ....
CopyCited 2 times | Published | District Court, S.D. Florida | 2016 U.S. Dist. LEXIS 79761, 2016 WL 3221138
...person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person ... and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued .,..” Fla. Stat. § 768.19 ....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2004 WL 42619
...That on Saturday, August 30, 2003 at 10:00 o'clock a.m. in Orange County, Florida, J.D.S. gave birth by cesarean section to a baby girl known as Baby S. 2. Baby S weighed 6 pounds, 7 ounces and her length was 21½ inches. [6] §
744.102(8), Fla. Stat. (2003). [7] §
744.102(19), Fla. Stat. (2003). [8] §
768.19, Fla....
CopyCited 2 times | Published | District Court, M.D. Florida | 2014 WL 260568, 2014 U.S. Dist. LEXIS 10292
...18 (Fla.1975); Niemi v. Brown & Williamson Tobacco Corp.,
862 So.2d 31, 34 (Fla. 2d DCA 2003); Smith v. Lusk,
356 So.2d 1309, 1311 (Fla. 2d DCA 1978). However, when a personal injury results in a decedent’s death, the personal injury action abates. See Fla. Stat. §
768.19 (“When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.......
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1995 WL 234614
...A.M.I.S.U.B. of Florida, Inc.,
515 So.2d 269 (Fla. 3d DCA 1987), review denied,
525 So.2d 876 (Fla. 1988); and Davis v. Simpson,
313 So.2d 796 (Fla. 1st DCA 1975). While we feel that the question of whether a fetus is a person within the meaning of section
768.19, Florida Statutes (1993), has been extensively addressed in the previously cited cases, in deference to the views expressed by Judge Mickle and his special concurrence, we again certify this question to be one of great public importance....
...Miller,
348 So.2d 303 (Fla. 1977). I write, however, to address appellant's invitation to our supreme court to revisit these decisions. The question at issue in this case is whether there is a right of recovery under the Florida Wrongful Death Act, sections
768.19-768.27, Florida Statutes (1989), on behalf of a stillborn child who died as a result of injuries received while in her mother's womb....
...n or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony. Section 768.19, Florida Statutes (1989)....
...(Emphasis supplied.) The first court called upon to interpret the new Act was this court in the case of Davis v. Simpson,
313 So.2d 796 (Fla. 1st DCA 1975). In answering the circuit court's certified question "[is] a full term, viable, but stillborn fetus a `person' within the meaning of §
768.19, Florida Statutes, 1973," in the negative, this court opined that the determinative issue was whether or not it was the intent of the Legislature in its enactment of the new Wrongful Death Act to include within the meaning of the term "person" an unborn fetus....
...Duncan,
358 So.2d at 180. [10] Recent efforts to amend the Wrongful Death Act have been defeated. In 1988, identical bills were filed in both the House and Senate that would have added the term "unborn children" to the definitions of "person" and "minor children" in §
768.19....
CopyCited 2 times | Published | District Court, M.D. Florida | 1986 U.S. Dist. LEXIS 26770
...he question to the Florida Supreme Court (See Article V, section 3(b)(4) of the Florida Constitution), this Court simply decides whether the defense is applicable in the case at bar as it believes the Florida Court would decide. 6. Florida Statutes, Section 768.19 provides: When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person ......
...and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person ... that would have been liable for damages if death had not ensued shall be liable for damages as specified in this act.... 7. The language of section 768.19 suggests that defenses that would bar a decedent's recovery if he had survived should also apply to bar recovery from a surviving plaintiff in a wrongful death action....
CopyCited 1 times | Published | District Court, M.D. Florida | 2011 U.S. Dist. LEXIS 151514, 2011 WL 6965854
...gence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued ....” Fla. Stat. § 768.19 ....
...by filing a new complaint in a new lawsuit defies all logic and, while perhaps a boon to the judicial coffers from the standpoint of filing fees, would create a needless administrative *1231 hoop that is not contemplated by the Act. See Fla. Stat. §§ 768.19-768.21 ....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 6006, 1994 WL 275379
...a part of the mother’s body, OR both. The Florida Supreme Court has held that, in legal contemplation, an unborn fetus is not a person for the wrongful death of whom a tortfeasor is liable to its survivors for damages under the Wrongful Death Act (§ 768.19, Fla.Stat.); therefore, it is living tissue of the body of the mother for the negligent or intentional injury to which the mother has a legal cause of action the same as she has for a wrongful injury to any other part of her body....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2000 WL 1033055
...Julia Studdard was killed in an automobile that her husband had rented from Alamo. Her husband and two minor children survived. We affirm. Toombs sought damages on behalf of the two surviving minor children under Florida's Wrongful Death Act pursuant to section 768.19, Florida Statutes (1997) [1] and brought a claim against Alamo as owner of the rented vehicle that was involved in the accident....
...band to drive to determine his condition and fitness for that purpose. Even if Raydel survives, does it apply when the action is being brought by the wife's survivors under the Wrongful Death Act? To answer this question, we must consider Shiver and section 768.19, Florida Statutes. Section 768.19 defines a "right of action" in the context of the Wrongful Death Act....
CopyCited 1 times | Published | District Court, N.D. Florida
...at 770 n.18 (noting that this general survival statute, still applies to preserve other claims that a decedent might have brought before his death). The FWDA expressly holds a person who causes death by a wrongful act liable for damages as specified in the act, Fla. Stat. § 768.19 , which incltide economic losses of the estate (both pre-death and prospective net earnings) and economic and emotional losses of the decedent’s survivors (including the survivors’ own pain and suffering), see id....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 18323, 2010 WL 4861743
...On January 9, 2008, within two years of Mr. Capone’s death, Karen Capone filed a motion to amend the personal injury complaint to include a new cause of action for wrongful death rather than filing a separate suit as required under the Wrongful Death Act, section 768.19, Florida Statutes (2008)....
...That is, if there is a claim for personal injuries that caused the decedent’s death, there is no survival of the decedent’s personal injury claim. His or her survivor or personal representative must assert a separate, statutory cause of action under section 768.19, the Wrongful Death Act....
CopyPublished | District Court, M.D. Florida
...However, Defendants' argument fails because there is a genuine dispute about how long Anthony was hanging and whether continuous CPR could have changed the outcome. To succeed on her wrongful death claim, Waldron must prove that Spicher's actions proximately caused Anthony's death. See § 768.19, Fla....
CopyPublished | Supreme Court of Florida
...(2020).
On the other hand, if—as was stipulated here—a person dies
from harm caused by another person, then the Wrongful Death Act
applies. See §§
768.16-768.26, Fla. Stat. (2020). The Wrongful
Death Act establishes the following statutory “[r]ight of action”:
768.19 Right of action.—When the death of a
person is caused by the wrongful act, negligence, default,
or breach of contract or warranty of any person,
including those occurring on navigable waters, and the
event would have enti...
...the person or watercraft that would have been liable in
damages if death had not ensued shall be liable for
damages as specified in this act notwithstanding the
death of the person injured, although death was caused
under circumstances constituting a felony.
§ 768.19, Fla....
...the
statute no wrongful death cause of action survived the decedent.”).
But the “derivative” aspect of a wrongful death action—i.e., the
requirement that the decedent must have been able to “recover
damages if death had not ensued,” § 768.19, Fla....
...2d 109, 112 (Fla. 2002) (quoting Fla. East Coast Ry. v.
McRoberts,
149 So. 631, 633 (Fla. 1933)).
We have thus never held—nor do we today—that a personal
representative who brings a wrongful death action based on, say, a
theory of “negligence,” §
768.19, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 18404, 2011 WL 5832338
...Alamo Rent-A-Car, Inc.,
833 So.2d 109, 118 (Fla.2002) ("[T]he language of the [Wrongful Death] Act makes clear a cause of action for wrongful death that is predicated on the decedent's entitlement to `maintain an action and recover damages if death had not ensued.'" (quoting §
768.19, Fla....
...5th DCA 2010) (holding that a wrongful death "action is predicated on the `wrongful act, negligence, default or breach of contract or warranty' committed by the defendant which, as the result of the decedent's death, transformed a personal injury claim into one for wrongful death" (quoting § 768.19, Fla....
CopyPublished | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 3967, 2009 WL 1159195
...a fair and impartial jury impaneled to resolve, in the following order, the issues of whether the defendants breached the applicable standard of care or warranty, whether that breach caused the plaintiffs’ damages, and what those damages are. See § 768.19, Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Jan 30, 2024
...rt 22-11675
resisting the officers used excessive force in violation of the Fourth
Amendment and (2) that all defendants were liable for Barrera’s
death under Florida’s Wrongful Death Act, Fla. Stat. § 768.19.
After timely removing Acosta’s action to federal court, the
defendants moved to dismiss for failure to state a claim....
CopyPublished | District Court, M.D. Florida | 2017 U.S. Dist. LEXIS 65448, 2017 WL 1424345
...f a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person ..., and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued.” Fla. Stat. § 768.19 ....
CopyPublished | Supreme Court of Florida | 21 Fla. L. Weekly Supp. 122, 1996 Fla. LEXIS 437, 1996 WL 110000
PER CURIAM. We have for review a decision of the district court certifying the question of whether a fetus is a person within the meaning of section 768.19, Florida Statutes (1993) (Florida Wrongful Death Act)....
CopyPublished | Florida 3rd District Court of Appeal
...at 977.
To prevail on a wrongful death claim, the plaintiff must establish that
the defendant caused the decedent’s death through some wrongful act that
would have entitled the decedent to bring an action on their own behalf if
they had survived. § 768.19, Fla....
CopyPublished | Florida 2nd District Court of Appeal
...by
holding that contribution is available against a parent to the extent of existing liability
insurance coverage for the parent's tort against the child").
The trial court agreed with Singletary's Estate based upon "[a] strict
reading of Florida Statute § 768.19, [Fla....
...the estate's claims to the amount of available insurance.
Analysis
This case offers a confounding confluence of competing legal issues.
Because the primary basis for the trial court's decision turns on its reading of section
768.19, we turn first to the statute.
-3-
I....
...3d 186,
190 (Fla. 2013) (quoting Heart of Adoptions, Inc. v. J.A.,
963 So. 2d 189, 198 (Fla.
2007)). After all, "[a]n action for wrongful death is a purely statutory right." Toombs v.
Alamo Rent-A-Car, Inc.,
833 So. 2d 109, 111 (Fla. 2002).
Section
768.19 defines the right of action for wrongful death as follows:
When the death of a person is caused by the wrongful
act, negligence, default, or breach of contract or warranty of
any person...
...ensued, the person or watercraft that would have been liable
in damages if death had not ensued shall be liable for
damages as specified in this act notwithstanding the death of
the person injured . . . .
§
768.19.2 The legislature has deemed it "the public policy of the state to shift the
losses resulting when wrongful death occurs from the survivors of the decedent to the
wrongdoer." §
768.17. Accordingly, a wrongful death "action shall be brought by the
decedent's personal representative, who shall recover for the benefit of the decedent's
2Section
768.19 has remained unchanged since its enactment in 1972.
See Ch. 72-35, § 1, Laws of Fla.
-4-
survivors and estate all damages, as specified in this act, caused by the injury resulting
in death." §
768.20.
There is tension between section
768.19, which creates the wrongful
death right of action, and sections
768.17 and
768.20, which establish the cause of
action.3 See Toombs,
833 So. 2d at 111 ("Section
768.19 . . . defines the right of action
under the Wrongful Death Act . . . ."). As the trial court read section
768.19, parental
immunity limited Dylan's Estate's potential recovery because section
768.19 conditions
the right of action upon whether "the event would have entitled the person injured to
maintain an action and recover damages if death had not ensued." See also Laizure v.
Avante at Leesburg, Inc., 109 So 3d 752, 760 (Fla....
...ombs,
833 So. 2d at 118 ("[T]he
language of the [Wrongful Death] Act makes clear a cause of action for wrongful death
that is predicated on the decedent's entitlement to 'maintain an action and recover
damages if death had not ensued.' " (quoting §
768.19, Fla....
...wrongful death is not barred by the doctrine of interspousal immunity" because
"[h]usband and wife are dead. There is no suit between spouses, just as there is no
longer any marital unit to preserve." Id. at 792, 794.
Although the language in section 768.19 conditions the wrongful death
right of action upon whether "the event would have entitled the person injured to
maintain an action and recover damages if death had not ensued," this language did not
dissuade the Dressler court from holding that spousal immunity was no bar to the
wrongful death action....
...Unlike a co-bailee
attempting to bring an action under the dangerous instrumentality doctrine, parental
immunity does not inhere to the tort itself and, at the time of death, the child still
possesses a cause of action against the parent.
V. Section
768.19 and Limits on Wrongful Death Recovery
Finally, we address the trial court's determination that any recovery by
Dylan's Estate's wrongful death claim was limited "to the extent of [Jasper]'s available
liability insurance coverage." See Ard,
414 So. 2d at 1067. Again, we turn first to the
language of section
768.19.
The statute contains no such explicit limit on damages. See §
768.19.
Furthermore, Toombs analyzed section
768.19 and distinguished Dressler as pertaining
to wrongful death cases where familial immunities were asserted....
...SILBERMAN, J., Concurs.
ATKINSON, J., Dissents with opinion.
ATKINSON, Judge, Dissenting.
I respectfully dissent. Dylan's Estate is only entitled to damages that
Dylan would have been entitled to recover had Dylan's death "not ensued." See
768.19, Fla....
...but his defenses survived him. It does
not matter that both the tortfeasor and injured party are deceased, because the
survivors' right of action is dependent on whether the tortfeasor "would have been liable
in damages if death had not ensued." § 768.19....
...recovered damages if death had not ensued.").4
Had Dylan not died, he would not have been "entitled . . . to maintain an
action and recover damages" against his father or his father's estate in excess of
available liability insurance coverage. See § 768.19; Laizure, 109 So....
CopyPublished | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 161
...That on Saturday, August 30, 2003 at 10:00 o’clock a.m. in Orange County, Florida, J.D.S. gave birth by cesarean section to a baby girl known as Baby S. 2. Baby S weighed 6 pounds, 7 ounces and her length was 21íá inches. . §
744.102(8), Fla. Stat. (2003). . §
744.102(19), Fla. Stat. (2003). . §
768.19, Fla....
CopyPublished | Supreme Court of Florida
...See Fla. E. Coast Ry. Co. v. McRoberts,
149 So. 631, 632 (Fla. 1933) (“The common law afforded no remedy
for death by wrongful act. Hence the right and remedy are purely
statutory.”). The Wrongful Death Act creates a statutory right of
action, see §
768.19, Fla....
CopyPublished | District Court, S.D. Florida | 1988 U.S. Dist. LEXIS 1522, 1988 WL 17104
...He was unloading these sheets from another defendant’s truck when the accident happened. Innocent is survived by his mother and siblings, whom Innocent supported. Two of his sisters, Anience and La Mercie, bring this action personally and on behalf of Innocent’s other siblings and mother pursuant to Fla.Stat.Ann. § 768.19 (West 1986)....
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 20367, 2014 WL 7156334
...death of a
person is caused by the wrongful act, negligence, default, or breach of contract or
warranty of any person . . . , and the event would have entitled the person injured to
maintain an action and recover damages if death had not ensued." §
768.19. The Act
manifests the state's public policy to shift the loss from the survivors to the wrongdoer;
the Act is remedial and must be liberally construed. §
768.17.
The wrongdoer is liable for "damages as specified in this act." §
768.19.
Survivors may recover "the value of lost support and services." §
768.21(1)....
CopyPublished | Florida 2nd District Court of Appeal | 2012 Fla. App. LEXIS 21520, 2012 WL 6216756
...Inc.,
56 So.3d 34 (Fla.3d DCA 2010), which held that the personal injury complaint could not be amended to state a wrongful death claim. Capone stated that filing a separate suit is “required” under the Wrongful Death Act, but it cited for support only section
768.19. Id. at 35 . Section
768.19 creates a right of action; it says nothing about pleading requirements: When the death of a person is caused by the wrongful act, negligence, default, or *959 breach of contract or warranty of any person, including those occurring on n...
...on or watercraft that would have been liable in damages if death had not ensued shall be hable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony. § 768.19....
CopyPublished | Court of Appeals for the Eleventh Circuit
cause of action for wrongful death, see Fla. Stat. §
768.19, “which was not recognized at common law.” Nissan
CopyPublished | Court of Appeals for the Eleventh Circuit | 2015 U.S. App. LEXIS 5657, 2015 WL 1546522
...r damages if death had not ensued, the person . . .
that would have been liable in damages if death had not ensued shall be liable for
damages as specified in this act notwithstanding the death of the person injured . . . .
Fla. Stat. § 768.19....
CopyPublished | Florida 2nd District Court of Appeal | 2005 Fla. App. LEXIS 5559, 2005 WL 924346
...Forry, as the personal representative of the estate of Jodi Diane Pulido, filed an action in October 2001 against the nursing home in which Ms. Pulido resided from 1994 until her death on February 14, 2001. The complaint alleged a claim for wrongful death, see § 768.19, Fla....
CopyPublished | District Court, M.D. Florida
...gful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued.... § 768.19, Fla....
...a wrongful death claim when a living plaintiff dies during the litigation. Skyrme did not address whether a survivor can recover both wrongful death and survival damages when a tortfeasor's conduct causes both fatal and non-fatal personal injuries. Section 768.19 does state that a person shall be liable for damages "[w]hen the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person ... and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued." § 768.19, Fla....
