FL ST § 768.21

West's F.S.A. § 768.21

This document has been updated. Use KEYCITE.

WEST'S FLORIDA STATUTES ANNOTATED

TITLE XLV. TORTS

CHAPTER 768. NEGLIGENCE

PART I. GENERAL PROVISIONS

Copr. © West Group 2003. All rights reserved.

Current with chapters in effect from the 2003 Regular

Session; see scope message for specific chapters in effect

768.21. Damages

All potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:

(1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.

(2) The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury.

(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.

(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

(5) Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them.

(6) The decedent's personal representative may recover for the decedent's estate the following:

(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered:

1. If the decedent's survivors include a surviving spouse or lineal descendants; or

2. If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent.

(b) Medical or funeral expenses due to the decedent's injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).

(c) Evidence of remarriage of the decedent's spouse is admissible.

(7) All awards for the decedent's estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.

(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical malpractice as defined by s. 766.106(1).

CREDIT(S)

2003 Electronic Update

Amended by Laws 1997, c. 97-102, § 1169, eff. July 1, 1997; Laws 2002, c. 2002-44, § 1, eff. April 16, 2002.

<General Materials (GM) - References, Annotations, or Tables>

HISTORICAL AND STATUTORY NOTES

Derivation:

Laws 1990, c. 90-14, § 2.

Laws 1985, c. 85-260, § 1.

Laws 1981, c. 81-183, § 2.

Laws 1972, c. 72-35, § 1.

Amendment Notes:

Laws 1981, c. 81-183, § 2, substituted language at the end of subsec. (6) (a) following "lineal descendants" for "accumulations beyond death and reduced to present value may also be recovered". Section 3, of Laws 1981, c. 81-183, provides that the law applies only to deaths occurring after July 1, 1981.

Laws 1985, c. 85-260, § 1, eff. June 19, 1985, substituted "there are no lost support and services recoverable under subsection (1), and there is a surviving parent" for "and does not have survivors as defined in s. 768.18(1)".

Laws 1990, c. 90-14, § 2, eff. Oct. 1, 1990, in subsec. (3), inserted ", and all children of the decedent if there is no surviving spouse,"; in subsec. (4), added the second sentence; and added subsec. (8).

Section 3 of Laws 1990, c. 90-14, provides:

"This act shall take effect October 1, 1990, and shall apply to causes of action accruing on or after that date."

Laws 1997, c. 97-102, eff. July 1, 1997, removed gender-specific references applicable to human beings from volume 4 of the Florida Statutes without substantive changes in legal effect.

Laws 2002, c. 2002-44, § 1, following the first sentence in subsec. (3), added "For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other."

Laws 2002, c. 2002-44, § 2, provides:

"This act shall take effect [April 16, 2002] and shall apply to any action accruing on or after such date."

FORMS

1997 Main Volume

3 Fla Pl & Pr Forms, Torts §§30:62, 31:86, 31:87, 31:156; 4 Fla Pl & Pr Forms, Torts §§34:68, 38:3, 38:4, 38:22, 38:31, 38:33, 38:39, 38:51-38:56, 38:61, 38:63, 38:71, 38:72, 38:74, 38:75; 5 Fla Pl & Pr Forms, Family Law § 42:22. 8 Am Jur Pl & Pr Forms, Rev, Death, Forms 1 et seq., 31-48, 121-139, 161- 165, 181-185.

CROSS REFERENCES

Wrongful death damages for civil actions to enforce rights of nursing home residents, see § 400.429.

AMERICAN LAW REPORTS

Effect of anticipated inflation on damages for future losses--modern cases, 21 ALR4th 21.

Recovery of damages for loss of consortium resulting from death of child-- modern status, 77 ALR4th 411.

Recovery in death action for failure to diagnose incurable disease which caused death, 64 ALR4th 1232.

Excessiveness or adequacy of damages awarded for parents' noneconomic loss caused by personal injury or death of child, 61 ALR4th 413.

Validity of verdict awarding medical expenses to personal injury plaintiff, but failing to award damages for pain and suffering, 55 ALR4th 186.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 ALR4th 1076.

Recovery of damages for grief or mental anguish resulting from death of child--modern cases, 45 ALR4th 234.

Negligence of one parent contributing to injury or death of child as barring or reducing damages recoverable by other parent for losses suffered by other parent as result of injury or death of child, 26 ALR4th 396.

Per diem or similar mathematical basis for fixing damages for pain and suffering, 3 ALR4th 940.

Profits of business as factor in determining loss of earnings or earning capacity in action for personal injury or death, 45 ALR3d 345.

Recovery for mental or emotional distress resulting from injury to, or death of, member of plaintiff's family arising from physician's or hospital's wrongful conduct, 77 ALR3d 447.

Recovery, in action for benefit of decedent's estate in jurisdiction which has both wrongful death and survival statutes, of value of earnings decedent would have made after death, 76 ALR3d 125.

LAW REVIEW AND JOURNAL COMMENTARIES

Computation of damages under New Florida Wrongful Death Act. Dr. John P. Wilcox and Harold G. Melville, 26 U.Miami L.Rev. 737 (1972).

Damages: recovery for impairment of housewife's earning capacity. 6 U.Fla.L.Rev. 563 (1953).

Damages: recovery of special damages due to land being made unfit for special use. 2 U.Fla.L.Rev. 138 (1949).

Florida's Wrongful Death Act and punitive damages. Nancy Ann Daniels, 4 Fla.St.U.L.Rev. 394 (1976).

Loss of consortium. Ralph P. Ezzo, 13 U.Miami L.Rev. 92 (1958).

Measuring physical impairment in personal injury. Ellen Bradford, 51 Fla.B.J. (1977).

Probate and wrongful death action. Judge Joseph Nesbitt, 51 Fla.B.J. 428 (1977).

Recovery for emotional disturbance unaccompanied by physical injury. 3 U.Fla.L.Rev. 387 (1950).

Recovery for lost parental consortium. 9 Nova L.J. 183 (1984).

Survey of Florida Law: Torts. Walter H. Beckham, Jr. and Margarita Esquiroz, 28 U.Miami L.Rev. 662 (1974).

Wrongful death of a minor child-contributory negligence of decedent spouse. 9 Fla.St.U.L.Rev. 201 (1981).

Wrongful death of stillborn child. 7 Stetson Intramural L.Rev. 31 (1977); 28 U.Fla.L.Rev. 187 (1975).

Wrongful death--a child is not born alive. 8 Fla.St.U.L.Rev. 136 (1980).

LIBRARY REFERENCES

1997 Main Volume

Death 78.

WESTLAW Topic No. 117.

C.J.S. Death § 95.

Texts and Treatises

17 Fla Jur 2d, Death §§ 15, 25, 29, 34, 39-41, 43,

44, 47, 48, 50, 58, 64, 67, 69, 70, 73, 75,

77, 79, 82, 84-88, 90, 96-99, 104, 105; 25

Fla Jur 2d, Family Law § 316; 28 Fla Jur 2d, Government Tort Liability

§ 53; 32 Fla Jur 2d, Interest and Usury § 5; 49 Fla Jur 2d, Statutes

§ 114; 56 Fla Jur 2d, Venue § 33.

24 Am Jur Proof of Facts 3d 337, Proof of Damages for Decedent's Pain and

Suffering; 25 Am Jur Proof of Facts 3d 251, Proof of Damages in Wrongful

Death or Survival Action; 29 Am Jur Proof of Facts 3d 259, Proof of Lost

Earning Capacity.

3 Am Jur Proof of Facts 491, Damages; 4 Am Jur Proof of Facts 71,

Death, Actions for; 16 Am Jur Proof of Facts 701, Proof of Lost Earning

Capacity and of Future Expenses; 13 Am Jur Proof of Facts 2d 45, Forensic

Economics--General Overview; Death Of Person In Labor Force; 49 Am Jur

Proof of Facts 2d 191 Damages for Wrongful Death of Child.

3 Am Jur Trials 681, Tactics and Strategy of Pleading.

65 Am Jur Trials 261, Damages for Wrongful Death of, or Injury to, Child.

UNITED STATES SUPREME COURT

Wrongful death and survival actions, accidents to nonseamen in territorial waters, preemption by federal maritime law, see Yamaha Motor Corp., U.S.A. v. Calhoun, 1996, 116 S.Ct. 619.

NOTES OF DECISIONS

I. IN GENERAL

II. CHILD'S DEATH

I. IN GENERAL

<Subdivision Index>

Additur or remittitur, generally 81

Admissibility of evidence 56-66

Admissibility of evidence - In general 56

Admissibility of evidence - Business records 57

Admissibility of evidence - Child support 57.5

Admissibility of evidence - Existence of surviving minor children 58

Admissibility of evidence - Expert testimony 66

Admissibility of evidence - Loss of probable prospective estate 64

Admissibility of evidence - Maintenance and earnings 61

Admissibility of evidence - Marital discord 60

Admissibility of evidence - Medical expenses 63.5

Admissibility of evidence - Number and ages of decedent's children 59

Admissibility of evidence - Pain and suffering 63

Admissibility of evidence - Remarriage of spouse 65

Admissibility of evidence - Remoteness 62

Adoption, dependency 11

Adult child, dependency 9

Amendment of record, review 88

Amendments of pleadings 53

Amount of damages 34-48

Amount of damages - In general 34

Amount of damages - Contributory negligence 36

Amount of damages - Dependent survivors 38

Amount of damages - Funeral expenses 47

Amount of damages - Loss of consortium 42

Amount of damages - Loss of probable prospective estate 44

Amount of damages - Loss of services and support 45

Amount of damages - Marital discord 43

Amount of damages - Married children 40

Amount of damages - Mental pain and suffering 46

Amount of damages - Minor children 39

Amount of damages - No dependents surviving 37

Amount of damages - Personal expenses 35

Amount of damages - Punitive damages 48

Amount of damages - Spouse 41

Apportionment of fault 48.5

Arbitration 48.7

Arguments of counsel, generally 75

Burden of proof 71

Business records, admissibility of evidence 57

Child support, admissibility of evidence 57.5

Collateral sources of payment 16

Conflicts of law 4.5

Construction and application 4

Construction with federal laws 4.3

Contributory negligence, amount of damages 36

Damages

Damages - Amount 34-48

Damages - Elements 18-33

Damages - Pleadings 51

Decedent, estate 14

Dependency

Dependency - In general 7

Dependency - Adoption 11

Dependency - Adult child 9

Dependency - Instructions 78

Dependency - Jury questions 73

Dependency - Minor child 10

Dependency - Pleadings 50

Dependency - Siblings 8

Dependent survivors

Dependent survivors - Amount of damages 38

Dependent survivors - Elements of damages 20

Discovery 54

Earnings and maintenance, admissibility of evidence 61

Elements of damages 18-33

Elements of damages - In general 18

Elements of damages - Dependent survivors 20

Elements of damages - Funeral expenses 32

Elements of damages - Hedonic damages 19

Elements of damages - Life expectancy of decedent and survivors generally 30

Elements of damages - Loss of consortium 24

Elements of damages - Loss of net accumulations 27

Elements of damages - Loss of parental guidance 22

Elements of damages - Loss of probable prospective estate 25

Elements of damages - Loss of services and support 26

Elements of damages - Mental pain and suffering 31

Elements of damages - Minor children 21

Elements of damages - Punitive damages 33

Elements of damages - Spouse 23

Elements of damages - Taxes 29

Elements of damages - Trust income 28

Equal protection, validity 2

Estate of decedent 14

Evidence in support of punitive damages 67-70

Evidence in support of punitive damages - In general 67

Evidence in support of punitive damages - Knowledge of defects 69

Evidence in support of punitive damages - Net worth evidence 70

Evidence in support of punitive damages - Willfulness and wantonness 68

Existence of surviving minor children, admissibility of evidence 58

Expert testimony, admissibility of evidence 66

Fact questions, generally 72-74

Facts not reviewable, review 86

Federal actions 6

Funeral expenses

Funeral expenses - Amount of damages 47

Funeral expenses - Elements of damages 32

Funeral expenses - Pleadings 52

Hedonic damages, elements of damages 19

Instructions 76-79.5

Instructions - In general 76

Instructions - Dependency 78

Instructions - Loss of probable prospective estate 79

Instructions - Net accumulations 77

Instructions - Punitive damages, instructions 79.5

Insurance policy provisions, generally 15

Jury questions 72-74

Jury questions - In general 72

Jury questions - Dependency 73

Jury questions - Loss of probable prospective estate 74

Knowledge of defects, evidence in support of punitive damages 69

Legislative authority, validity 3

Life expectancy of decedent and survivors generally, elements of damages 30

Loss of consortium

Loss of consortium - Amount of damages 42

Loss of consortium - Elements of damages 24

Loss of net accumulations, elements of damages 27

Loss of parental guidance, elements of damages 22

Loss of probable prospective estate

Loss of probable prospective estate - Admissibility of evidence 64

Loss of probable prospective estate - Amount of damages 44

Loss of probable prospective estate - Elements of damages 25

Loss of probable prospective estate - Instructions 79

Loss of probable prospective estate - Jury questions 74

Loss of services and support

Loss of services and support - Amount of damages 45

Loss of services and support - Elements of damages 26

Maintenance and earnings, admissibility of evidence 61

Marital discord

Marital discord - Admissibility of evidence 60

Marital discord - Amount of damages 43

Married children, amount of damages 40

Medical expenses, admissibility of evidence 63.5

Mental pain and suffering

Mental pain and suffering - Amount of damages 46

Mental pain and suffering - Elements of damages 31

Minor child, dependency 10

Minor children

Minor children - Amount of damages 39

Minor children - Elements of damages 21

Net accumulations, instructions 77

Net worth evidence, evidence in support of punitive damages 70

New trial 82

No dependents surviving, amount of damages 37

Number and ages of decedent's children, admissibility of evidence 59

Pain and suffering, admissibility of evidence 63

Personal expenses, amount of damages 35

Pleadings 49-53

Pleadings - In general 49

Pleadings - Amendments of pleadings 53

Pleadings - Damages 51

Pleadings - Dependency 50

Pleadings - Funeral expenses 52

Punitive damages

Punitive damages - Amount of damages 48

Punitive damages - Elements of damages 33

Punitive damages, instructions 79.5

Release 17

Remarriage of spouse

Remarriage of spouse - Generally 13

Remarriage of spouse - Admissibility of evidence 65

Remittitur or additur, generally 81

Remoteness, admissibility of evidence 62

Retroactivity 5

Review 85-88

Review - In general 85

Review - Amendment of record 88

Review - Facts not reviewable 86

Review - Waiver 87

Set off 83

Settlement 84

Siblings, dependency 8

Spouse

Spouse - Amount of damages 41

Spouse - Elements of damages 23

Spouse - Remarriage 13

Spouse - Surviving 12

Surviving spouse 12

Taxes, elements of damages 29

Trial 55

Trust income, elements of damages 28

Validity 1-3

Validity - In general 1

Validity - Equal protection 2

Validity - Legislative authority 3

Verdict, generally 80

Waiver, review 87

Willfulness and wantonness, evidence in support of punitive damages 68

1. Validity--In general

Substantive due process was not implicated by statute precluding recovery of nonpecuniary damages by decedent's adult children where cause of death was medical malpractice. U.S.C.A. Const.Amend. 14; West's F.S.A. §§ 768.21(8). Mizrahi v. North Miami Medical Center, Ltd., App. 3 Dist., 712 So.2d 826 (1998), review granted 729 So.2d 393, certified question answered, affirmed 761 So.2d 1040, rehearing denied.

Wrongful Death Act was not unconstitutional because it did not permit recovery of net accumulations by adult but nondependent children of decedent. Capiello v. Goodnight, App. 2 Dist., 357 So.2d 225 (1978), appeal dismissed 365 So.2d 712.

Section 768.18 providing that adult children of decedent who are not dependent upon the decedent are not "survivors" of the decedent and thus may not recover damages under this section of Wrongful Death Act is not unconstitutional. Henderson v. Insurance Co. of North America, App. 4 Dist., 347 So.2d 690 (1977).

This section governing damages in wrongful death action and denying parents of adult child the right to damages for mental pain and suffering was not unconstitutional. Bassett v. Merlin, Inc., 335 So.2d 273 (1976).

Changes made in elements of damage under Wrongful Death Act by adding individual pain and suffering for close relatives and eliminating damages for decedent's pain and suffering and loss of net accumulations for beneficiaries other than surviving spouse and lineal descendants, were legislative prerogative and constitutional. White v. Clayton, 323 So.2d 573 (1975).

Right of surviving close relatives under Wrongful Death Act to recover for their pain and suffering brought about by wrongful death of decedent was reasonable alternative to dividing among survivors the amount formerly recoverable under survivor statute for decedent's pain and suffering and, therefore, elimination of survivors' right to recover for pain and suffering of decedent was not unconstitutional. Martin v. United Sec. Services, Inc., 314 So.2d 765 (1975).

2. ---- Equal protection, validity

Subsection (6)(a)2 of this section permitting nondependent surviving parent to recover for loss of net accumulations but not for loss of support in a wrongful death suit does not deny equal protection to nondependent surviving parents of adult decedent. Innocent v. Central Truck Lines, Inc., S.D.Fla.1988, 680 F.Supp. 1523.

Provision in wrongful death statute barring recovery of non-pecuniary damages in medical malpractice cases by surviving adult children was rationally related to state's interest in controlling healthcare costs and accessibility, and thus did not violate equal protection guarantees of either United States or Florida Constitutions. Mizrahi v. North Miami Medical Center, Ltd., 761 So.2d 1040 (2000), rehearing denied.

Because no statutory or common law right existed for adult children of persons who wrongfully died as result of medical malpractice, statute precluding adult children but not minor children from recovering damages for lost parental companionship and for mental pain and suffering on claim for medical malpractice could be unconstitutional denial of equal protection only if it bore no rational relationship to legitimate state objective. Stewart v. Price, App. 1 Dist., 718 So.2d 205 (1998), review granted 729 So.2d 918, approved 762 So.2d 475, rehearing denied.

Legislature's choice to exclude, from right to recover damages for parent's pain and suffering, those adult children of persons who wrongfully died as a result of medical malpractice bore a rational relationship to the legitimate state interests of limiting increases in medical insurance costs, and thus, statute does not violate equal protection. Stewart v. Price, App. 1 Dist., 718 So.2d 205 (1998), review granted 729 So.2d 918, approved 762 So.2d 475, rehearing denied.

Equal protection guarantees of federal and state Constitutions were not violated by statute precluding recovery of nonpecuniary damages by decedent's adult children where cause of death was medical malpractice; statute did not implicate suspect class, and statute's disparate treatment of medical malpractice wrongful deaths bore rational relationship to legitimate state interest of curtailing skyrocketing medical malpractice insurance premiums. U.S.C.A. Const.Amend. 14; West's F.S.A. §§ 768.21(8). Mizrahi v. North Miami Medical Center, Ltd., App. 3 Dist., 712 So.2d 826 (1998), review granted 729 So.2d 393, certified question answered, affirmed 761 So.2d 1040, rehearing denied.

Limiting wrongful death recovery for loss of net accumulations to surviving spouse and lineal descendants was not an irrational classification violative of equal protection. Vildibill v. Johnson, 492 So.2d 1047 (1986), answer to certified question conformed to 802 F.2d 1347.

Wrongful Death Act which limited recovery for loss of net accumulations beyond death to surviving spouse or lineal descendants did not thereby establish unreasonable classification, and thus did not violate equal protection clause. White v. Clayton, 323 So.2d 573 (1975).

3. ---- Legislative authority, validity

The provision of former statute authorizing a recovery by the father for the mental pain and suffering by the mother because of the wrongful death of their minor child, was not in excess of the legislative power. Florida East Coast Ry. Co. v. Hayes, 66 Fla. 589, 64 So. 274 (1914).

4. Construction and application

A cause of action brought under Nursing Home Act constituted an independent cause of action with its own set of statutory damages, and thus Wrongful Death Act did not limit damages for patient's pre-death pain and suffering, where statute specifically stated that claimant would be entitled to recover actual and punitive damages for any violation of the rights of a nursing home resident, statute expressly stated that statutory damages were authorized in addition to any other remedies that already existed, and had legislature intended for Wrongful Death Act to control damages available in personal representative's action against nursing home, it could have very easily provided for the application of provisions of Wrongful Death Act in Nursing Home Act; disapproving First Healthcare Corp. v. Hamilton, 740 So.2d 1189. Florida Convalescent Centers v. Somberg, 840 So.2d 998 (2003). Death 96; Health 834(1)

A survivor's right of recovery under the wrongful death statute is derivative in the sense that it is dependent upon a wrong committed upon another person. Geico General Ins. Co. v. Arnold, App. 3 Dist., 730 So.2d 782 (1999), rehearing denied.

Wrongful death statute precluding adult children but not minor children from recovering damages for lost parental companionship, instruction, and guidance and for mental pain and suffering on claim for medical malpractice did not deny equal protection or due process or infringe on guarantee of access to courts; legislature did not eliminate existing remedy but created limited grant to adult children of right to recover pain and suffering damages where no right had previously existed at all. Stewart v. Price, App. 1 Dist., 718 So.2d 205 (1998), review granted 729 So.2d 918, approved 762 So.2d 475, rehearing denied.

Under Wrongful Death Act, decedent's personal representative is party who seeks recovery of all damages caused by injury resulting in death for benefit of decedent's survivors and for estate; personal representative must bring civil action to recover for all beneficiaries, and damages are to be awarded to survivors and to estate in accordance with statutory parameters of recovery. Continental Nat. Bank v. Brill, App. 3 Dist., 636 So.2d 782 (1994).

Wrongful Death Act contemplates that damages allowed estate are separate and distinct from damages recoverable by the deceased's survivors. South Shore Hosp. v. Easton, App. 3 Dist., 441 So.2d 161 (1983), petition for review denied 450 So.2d 486.

Damages recoverable under general death by wrongful act statute are those suffered by party entitled to sue in his own right regardless of damages recoverable by decedent. Stokes v. Liberty Mut. Ins. Co., 213 So.2d 695 (1968).

Damages for wrongful death are based upon pecuniary loss at death. Wadsworth v. Friend, App. 4 Dist., 201 So.2d 641 (1967).

Damages recoverable in a survival action are only those which deceased could have recovered had he lived and maintained the action. Sinclair Refining Co. v. Butler, 190 So.2d 313 (1965).

4.3. Construction with federal laws

Florida wrongful death action based on the negligent decision of a managed health plan physician-administrator, which rejected a request of the patient's private physician to extend a hospital stay, was not completely preempted by ERISA so as to constitute a basis for removal. Rivers v. Health Options Connect, Inc., S.D.Fla.2000, 96 F.Supp.2d 1370.

4.5. Conflicts of law

Florida law, rather than Columbian law, governed compensatory damages issues in action arising from wrongful death of Columbian domiciliary in Columbia in crash of airplane which was owned by airline that did substantial business in Florida, and which was flown by Florida domiciliaries; absence of Colombian defendant who would benefit from Colombia's more restrictive damages scheme rendered Columbia's interests less compelling, application of Florida law furthered policies underlying Florida's compensatory damages scheme and would not frustrate policies underlying Colombia's damages scheme, and, in light of severe difficulties in ascertaining Colombia's law on compensatory damages in wrongful death cases, well-defined and straightforward rules of Florida law tipped scales in favor of applying latter. Piamba Cortes v. American Airlines, Inc., C.A.11 (Fla.)1999, 177 F.3d 1272, rehearing and rehearing en banc denied 193 F.3d 525, certiorari denied 120 S.Ct. 980, 528 U.S. 1136, 145 L.Ed.2d 930.

5. Retroactivity

Amendment to Wrongful Death Act, providing that parents of adult child can recover for mental pain and suffering if there are no other survivors, applied in parents wrongful death suit against insurer, though insurer claimed that statute at time of accident governed action, where legislature specifically stated that amendment was effective October 1, 1990, and applied to causes of action accruing on or after that date, and where mother's adult son was in car accident in December 1989 and died as a result of those injuries in September 1992. Nationwide Mut. Fire Ins. Co. v. MacDonald, App. 4 Dist., 645 So.2d 1057 (1994).

6. Federal actions

Even if Florida Wrongful Death Act applied in action brought against airplane manufacturer, by parents of individual who died as a result of airplane crash, where funeral expenses paid by parents totaled $3,300, where decedent, immediately prior to his death, was 21 years old and was apparently in good health, and where decedent had mowed grass and performed household duties for his parents, although no one had been hired to fulfill those duties, dismissal of complaint on ground that amount in controversy did not amount to $10,000 was not warranted. Etheridge v. Piper Aircraft Corp., 1977, 559 F.2d 1027.

7. Dependency--In general

Parents of a deceased adult are ascendants and therefore cannot be considered "lineal descendants" within meaning of this section providing that if the decedent's survivors include a surviving spouse or lineal descendants, loss of net accumulations beyond death and reduced to present value may be recovered. Bassett v. Merlin, Inc., App. 3 Dist., 304 So.2d 543 (1974).

8. ---- Siblings, dependency

Trial court in wrongful death action was correct in concluding that brother and sister of deceased were not his "survivors" within meaning of Florida Wrongful Death Act where they were not shown to have been dependent on deceased. Guillen v. Kitching, App. 3 Dist., 354 So.2d 900 (1978), certiorari denied 361 So.2d 832.

Evidence in Wrongful Death Act showed as matter of law that deceased's brother and sister were not dependent on him and were therefore not his "survivors" within meaning of Florida Wrongful Death Act. Guillen v. Kitching, App. 3 Dist., 354 So.2d 900 (1978), certiorari denied 361 So.2d 832.

The adult sisters of deceased, who are healthy and strong mentally and physically, fully able to support and maintain themselves, could not recover for such death, though they might in fact have been supported by deceased. Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894).

9. ---- Adult child, dependency

Married adult daughter who did not live with parents and was not dependent on them for support was not entitled to recover for their wrongful death either at common law or under this section and § 768.02. U.S. v. Durrance, 1939, 101 F.2d 109.

The adult children of a decedent who were not dependent upon the decedent are not "survivors" under Wrongful Death Act, and thus personal representative of estate of the parent may not recover "net accumulations" on behalf of such adult children. Henderson v. Insurance Co. of North America, App. 4 Dist., 347 So.2d 690 (1977).

10. ---- Minor child, dependency

Under provision of this section granting "dependent" minor children right to sue for wrongful death of parent, term "dependent" did not refer only to financial dependency, but also to dependency for companionship, instruction, and guidance, and thus, where issue of fact was raised as to continued love, care and support by mother, minor children had standing to sue for her death in automobile accident, notwithstanding that they were not financially dependent upon her. Zimmerman v. Cruz & Garcia, App. 4 Dist., 449 So.2d 996 (1984).

Minor child, suing for wrongful death of his father, is entitled to recover for loss of support which father was required to furnish up to time child reached age of 21 years, together with damages to compensate for loss of father's attention, care, companionship, comfort, protection, education, and moral training. Powell v. Gessner, App. 4 Dist., 231 So.2d 50 (1970), opinion affirmed, writ discharged 238 So.2d 101.

Dependency alone or lack of dependency does not establish or destroy right of action in minor child for wrongful death of his parent. Powell v. Gessner, App. 4 Dist., 231 So.2d 50 (1970), opinion affirmed, writ discharged 238 So.2d 101.

"Minor child", within wrongful death statute is child with whom there still existed, at time of parent's death, legal relationship of parent and child with its accompanying rights, privileges, duties, and obligations. Powell v. Gessner, App. 4 Dist., 231 So.2d 50 (1970), opinion affirmed, writ discharged 238 So.2d 101.

11. ---- Adoption, dependency

While subsequent adoption of an orphan by its grandparents might conceivably affect the measure of damages under Florida law, such adoption would not destroy the cause of action itself. Downs v. U. S., 1974, 382 F.Supp. 713, reversed 522 F.2d 990.

12. Surviving spouse

Automobile accident victim who died en route to hospital, ten minutes after her husband died at scene of accident, was his "surviving spouse" for purposes of Wrongful Death Act, and couple's adult daughters thus were not entitled to recover for lost parental companionship in their father's wrongful death action. King v. Font Corp., App. 2 Dist., 612 So.2d 662 (1993).

13. Remarriage of spouse, generally

There are only two purposes for which, in a wrongful death action, evidence of remarriage of the decedent's spouse can be used, namely, (1) it could mitigate the damages going to the decedent's estate from the loss of net accumulation, since the loss of net accumulation can only be regained by the estate when there is a surviving spouse or lineal descendants, and (2) rather than to mitigate any damages, the evidence could be introduced for the sole reason of allowing the truth to be known and to keep the court from having to participate in a fraud upon the jury. Smyer v. Gaines, App. 1 Dist., 332 So.2d 655 (1976).

14. Estate of decedent

Under this act, adult decedent's estate may recover loss of prospective net accumulations when decedent is survived only by parents who may not maintain cause of action in their own right; reading the act as a whole, requirement that adult decedent leave no "survivors" in order for estate to recover net accumulations refers only to those survivors who are provided with a remedy elsewhere in the act. Vildibill v. Johnson, 492 So.2d 1047 (1986), answer to certified question conformed to 802 F.2d 1347.

15. Insurance policy provisions, generally

Per person limit of liability for uninsured motorist (UM) benefits applied to claims by minor insured's parents for loss of support and services and for their own pain and suffering from wrongful death; their right of action as survivors was derivative of injury to the child. Geico General Ins. Co. v. Arnold, App. 3 Dist., 730 So.2d 782 (1999), rehearing denied.

"Bodily injury" as used in provision of standard automobile liability policy limiting liability to each person for bodily injury refers only to injury to the body of the injured or sickness or disease contracted by the injured as a result of injury, the same as death resulting therefrom, and cannot be properly construed to include pain and suffering of a survivor. Skroh v. Travelers Ins. Co., App. 1 Dist., 227 So.2d 328 (1969).

Standard uninsured motorist clause in automobile liability policy covers death of insured caused by negligence of an uninsured motorist, despite the fact that dependent's claim arises by virtue of death by wrongful act statute. Netherlands Ins. Co. v. Moore, App. 1 Dist., 190 So.2d 191 (1966).

16. Collateral sources of payment

Damages for wrongful death may not be reduced by amounts received by beneficiaries as compensation from a collateral source. Smyer v. Gaines, App. 1 Dist., 332 So.2d 655 (1976).

Where, upon employee's electing to take workman's compensation, "all right" of employee to recover from wrongdoer was assigned to employer, employer was entitled to recover from wrongdoer damages for employee's pain and suffering both physical and mental up to time of his death from other causes as well as for diminished earning capacity and reasonable doctors' and hospital bills not exceeding amount shown by bill of particulars. Haverty Furniture Co. v. McKesson & Robbins, 154 Fla. 772, 19 So.2d 59 (1944).

17. Release

Where release extinguished doctor's liability only for damages due estate and not from damages due to survivors, hospital might be entitled to contribution. South Shore Hosp. v. Easton, App. 3 Dist., 441 So.2d 161 (1983), petition for review denied 450 So.2d 486.

Where release executed by personal representatives in exchange for $200,000 discharged decedent's doctor only from claims by the estate, but recognized that damages of the children exceeded $200,000, release applied to damages allowable to the estate, but did not affect damages recoverable by beneficiaries. South Shore Hosp. v. Easton, App. 3 Dist., 441 So.2d 161 (1983), petition for review denied 450 So.2d 486.

In widow's action for wrongful death of husband, wherein defendant asserted that husband signed a release, evidence whether there was "mutual mistake of fact" which would avoid release in that neither husband nor defendant contemplated that husband's injury was serious, and that release was not given to cover injuries not then known or contemplated, was for jury. Boole v. Florida Power & Light Co., 147 Fla. 589, 3 So.2d 335 (1941).

18. Elements of damages--In general

Finding that husband's death was only one of many contributing factors to diminution in value of stock of family-owned business was sufficiently supported by evidence presented in wrongful death action, including evidence of economic conditions in construction industry and company's problems with unionization. Hiatt v. U.S., C.A.11 (Fla.)1990, 910 F.2d 737.

In determining the value of the life of deceased to designated beneficiaries or to his estate, the jury can consider evidence as to the age, probable duration of life, habits of industry, means, business, earnings, health and skill of deceased and his reasonable future expectations. Herzig v. Swift & Co., 1946, 154 F.2d 64, certiorari denied 66 S.Ct. 1122, 328 U.S. 849, 90 L.Ed. 1622.

Evidentiary hearing on motion for order holding that restitution had been fully performed was required to determine whether there was any overlap or duplication between actual recovery in wrongful death case against convicted murder and the restitution for funeral expenses ordered at defendant's sentencing, as wrongful death settlement with insurance carrier represented only the policy limits, and not necessarily the entire damages suffered as a result of the wrongful death, and statutory wrongful death damages involved items other than merely funeral expenses. Weinstein v. State, App. 4 Dist., 745 So.2d 1085 (1999).

Damages for wrongful death are based upon pecuniary loss at death. Wadsworth v. Friend, App. 4 Dist., 201 So.2d 641 (1967).

Decedent's age, health, business capacity, education, habits, experience, energy, morals, adaptability, skill and thriftiness, are relevant factors to determine damages for wrongful death. Smith v. Lassing, App. 4 Dist., 189 So.2d 244 (1966), certiorari denied 195 So.2d 567.

Jury, in determining damages for wrongful death, is not bound merely to subtract decedent's expense from income, multiply difference by her life expectancy and reduce result to present money value. Smith v. Lassing, App. 4 Dist., 189 So.2d 244 (1966), certiorari denied 195 So.2d 567.

In assessing damages for death, jury may consider not only deceased's and his dependents' ages and life expectancies and his earning power, but probabilities of deceased contributing to dependents' probable increased needs, etc. Cudahy Packing Co. v. Ellis, 105 Fla. 186, 140 So. 918 (1932).

19. ---- Hedonic damages, elements of damages

There was no cause of action for hedonic damages under Florida law in wrongful death action. Brown v. Seebach, S.D.Fla.1991, 763 F.Supp. 574.

20. ---- Dependent survivors, elements of damages

Child born to mother while married to husband, who was listed as father on birth certificate, was not "survivor" of subsequently deceased third party, who was alleged to be biological father who had recognized responsibility for child's support; Florida did not recognize dual fathership, and thus, until husband's status as child's legal father was changed, recognition of third party as father was precluded, regardless of what his biological relationship to child might be. Achumba v. Neustein, App. 5 Dist., 793 So.2d 1013 (2001), rehearing denied, cause dismissed 805 So.2d 804.

Uncle's promise to niece and her husband that he would make any mortgage payments which they might be obligated to pay if they left Wisconsin and bought home in Florida, followed by uncle's several years of contribution to family funds, did not establish moral obligation of uncle to support niece and her husband and in absence of showing that niece and husband were dependent upon uncle for support they were not "dependents" within meaning of wrongful death statute and not entitled to maintain action for uncle's death. Burgh v. Carroll, App. 3 Dist., 217 So.2d 353 (1969).

The status of dependency under the wrongful death statute is determinable by factual circumstances existing at death. Wadsworth v. Friend, App. 4 Dist., 201 So.2d 641 (1967).

Daughter who was 42 years of age and was 100 percent disabled, confined to wheelchair or bed at all times, and required assistance in and out of bed as well as for personal requirements and whose mother assumed complete financial burden of her care, support, and personal attention from time that the father died until the mother was fatally injured in automobile accident was "dependent" on the mother under wrongful death statute. Wadsworth v. Friend, App. 4 Dist., 201 So.2d 641 (1967).

Dependents' recovery for death is not limited to present value of anticipated support. Cudahy Packing Co. v. Ellis, 105 Fla. 186, 140 So. 918 (1932).

21. ---- Minor children, elements of damages

Minor child, suing for wrongful death of his father, is entitled to recover for loss of support which father was required to furnish up to time child reached age of 21 years, together with damages to compensate for loss of father's attention, care, companionship, comfort, protection, education and moral training. Powell v. Gessner, App. 4 Dist., 231 So.2d 50 (1970), opinion affirmed, writ discharged 238 So.2d 101.

Under Wrongful Death Statute, an element of damage to be considered by jury in assessing damages for a widow with a minor child or children fathered by the deceased is the loss of financial support that her husband would have provided for the child or children during minority. Slaughter v. Cook, App. 2 Dist., 195 So.2d 6 (1967), certiorari denied 201 So.2d 549.

Although the value of deceased's services to his widow in rearing and supporting minor children cannot be reduced to mathematical certainty or in accordance with any strict formula, within reasonable bounds, such matter should be included by jury in awarding damages to widow for death of deceased. Frazier v. Ewell Engineering & Contracting Co., 62 So.2d 51 (1952).

A minor's claim for death of its father by wrongful act of another is based on loss of support which the father is bound to give child during its minority, based on evidence of probable future earnings and other acquisitions to be estimated upon basis of father's earnings of the past, his age, health, business capacity, habits, experience, and energy, and his present and future prospects for business success at the time of his death, and the loss of attention, care, comfort, companionship, protection, education, and moral training of the father which might reasonably be anticipated in the light of the evidence relating to character and conduct of father as such, and such elements are to be based on the probable life of the father and reduced to money value, and its present worth is to be given as damages. Pidcock-Jones Co. v. Watson, 141 Fla. 376, 193 So. 305 (1940).

Minor's claim for damages for father's death is money value of loss of support, protection, education, and moral training, based on probable life of father. Triay v. Seals, 92 Fla. 310, 109 So. 427 (1926).

22. ---- Loss of parental guidance, elements of damages

Monetary value of intangible losses to child of his or her father's companionship and parental influence is one which may be properly assessed only by representative of community as a whole, the jury. Alamo Rent-A-Car, Inc. v. Clay, App. 3 Dist., 586 So.2d 394 (1991).

Son who had passed the age of 18 years but who had not yet reached the age of 21 years could not recover damages for loss of parental guidance and for his mental pain and suffering, arising from the death of his father. Liberty Mut. Ins. Co. v. Furman, App. 3 Dist., 341 So.2d 1056 (1977).

23. ---- Spouse, elements of damages

Statute providing for civil enforcement of nursing home residents' rights allows the personal representative of a deceased nursing home resident to recover survivor's damages under the Wrongful Death Act when the allegations of negligence are based on a violation of the resident's rights as set forth in the statute. Graber v. Joseph L. Morse Geriatric Center, Inc., App. 4 Dist., 837 So.2d 473 (2002).

Damages sought for widow in wrongful death case were to compensate her for past and future loss of such intangibles as love, sex, companionship, society, comfort and solace, and help in performing one's tasks about the household. David v. Brown, App. 4 Dist., 774 So.2d 775 (2000), rehearing denied, appeal denied 791 So.2d 1096.

Evidence of an extraordinarily close, affectionate and dependent marital relationship is relevant to the jury's determination of the amount of damages to award to a surviving spouse in a wrongful death action. David v. Brown, App. 4 Dist., 774 So.2d 775 (2000), rehearing denied, appeal denied 791 So.2d 1096.

Truck driver's frequent absence from marital home was not a compelling reason for diminishing value of his life to his widow in wrongful death action. Nat Harrison Associates, Inc. v. Byrd, App. 4 Dist., 256 So.2d 50 (1971).

Plaintiff in wrongful death case was entitled to recover loss of support since death, if proven; any loss of future estate and that share of those assets which plaintiff would normally share in; comfort, companionship and protection of husband, if any; marital relations that existed and would exist; and any loss of services. Park v. Belford Trucking Co., App. 3 Dist., 165 So.2d 819 (1964), certiorari discharged 174 So.2d 398.

Among elements which jury is entitled to take into consideration in fixing amount of award to husband for wrongful death of his wife are funeral expenses of wife incurred and paid by husband where amount thereof is claimed as special damages, pecuniary value of services which husband might reasonably have expected to have received from his deceased wife if she had not been killed, less maintenance costs, and husband's loss of wife's consortium and companionship. Lithgow v. Hamilton, 69 So.2d 776 (1954).

In determining widow's damages for death of husband, consideration should be given to widow's loss of comfort, protection, and society of husband, marital relations at time of and prior to death, husband's services in assisting widow in care of family, loss of support, station in society, and amounts which widow might reasonably have expected to receive from husband's estate in case her life expectancy is greater than his. Seaboard Air Line R. Co. v. Martin, 56 So.2d 509 (1952).

In computing widow's damages for death of husband, husband's earnings and acquisitions should be estimated upon basis of his health, age, business capacity, habits, experience and energy. Seaboard Air Line R. Co. v. Martin, 56 So.2d 509 (1952).

Where a widow sues for the death of her husband, in estimating her pecuniary loss, the jury may consider her loss of the comfort, protection, and society of the husband, and his services in the care of the family, but she is not entitled to recover for her mental distress, nor for his mental or physical suffering; and she is entitled to reasonable compensation for loss of support based upon his probable future earnings and other acquisitions, estimated upon the basis of his age, health, business capacity, habits, experience, energy, and his present and future prospects for business success, all such elements to be based upon the probable joint lives of the widow and husband; and she is also entitled to compensation for loss of whatever she might reasonably have expected to receive in the way of dower, or legacies from his estate, the sum total of all the elements to be reduced to a money value, and its present worth to be given as damages. Southern Utilities Co. v. Davis, 83 Fla. 366, 92 So. 683 (1922).

In a suit by the wife for the negligent death of her husband, while the court does not hold that allowances for the loss of the society, comfort and protection of the husband should in any case be estimated as equaling in pecuniary worth the amount proved to have been the actual, tangible and substantial pecuniary value of the life of the deceased, yet the court does hold that when it is estimated at a greater valuation, then such allowance is unreasonable, and in a case where punitive damages are not justified, will cause a reversal unless the excessive allowance is remitted. Florida Cent. & P.R. Co. v. Foxworth, 45 Fla. 278, 34 So. 270 (1903).

In an action by a widow for the death of her husband, the jury may consider the loss of the comfort, protection, and society of the husband, as shown by the evidence in relation to his character, habits, and conduct as husband, and the marital relations between the parties at the time of and prior to his death. Florida Cent. & P.R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338 (1899).

Where the widow sues for damages for the death of her husband by the wrongful act of another, in estimating her pecuniary loss the jury may properly take into consideration her loss of the comfort, protection and society of the husband, but the widow is not entitled to recover for mental anxiety or distress over the death of her husband. Florida Cent. & P.R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338 (1899).

In an action by a widow for the death of her husband by a wrongful act, she cannot recover the gross sum of the probable future earnings of the deceased, had he lived, but is entitled only to damages for her loss of support, based on such probable earnings. Florida Cent. & P.R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338 (1899).

24. ---- Loss of consortium, elements of damages

Loss of companionship and consortium during joint life expectancy of husband and wife at time of death of either must be recognized as element of damages recoverable by survivor under Florida wrongful death statutes for death of spouse, though amount of award must be fixed almost arbitrarily. Legare v. U.S., S.D.Fla.1961, 195 F.Supp. 557.

25. ---- Loss of probable prospective estate, elements of damages

Deducting decedents' projected federal income tax liability from amount awarded as damages under Florida Wrongful Death Act, as it existed in 1971, was proper. Downs v. U. S., 1975, 522 F.2d 990.

The Florida Wrongful Death Act, as it existed in 1971, allowed an administrator to recover the full value of the loss to the prospective estate of the deceased. Downs v. U. S., 1975, 522 F.2d 990.

In actions brought under Florida wrongful death statutes by administrator, in default of any of prior claimants named therein, measure of damages is present worth of prospective earnings and savings that from evidence could reasonably have been expected but for death of decedent, beginning in case of minor from date when he would have become of age. English v. U.S., 1953, 204 F.2d 808.

Under wrongful death statute, proof of decedent's earnings is a factor to be considered in determining value of the estate decedent would have accumulated but it is not an indispensable factor. Herzig v. Swift & Co., 1945, 146 F.2d 444.

Wrongful death statute permits recovery equal to difference between the estate as it existed at time of decedent's death and what the estate would have consisted of had decedent not been killed at that time, and such sum when found must be discounted to present value. Herzig v. Swift & Co., 1945, 146 F.2d 444.

Administrator in wrongful death action may recover present value of prospective earnings and savings which decedent could reasonably have been expected to accumulate during his life expectancy after coming of age and to have left to his heirs or beneficiaries at death. Seaboard Coast Line R. Corp. v. Robinson, App. 2 Dist., 263 So.2d 626 (1972).

That decedent was not gainfully employed at time of wrongful death would not preclude recovery for loss of earnings, in view of decedent's investment income and capital. Smith v. Lassing, App. 4 Dist., 189 So.2d 244 (1966), certiorari denied 195 So.2d 567.

In determining damages for wrongful death, jury should determine merely pecuniary loss resulting to plaintiff. W.B. Harbeson Lumber Co. v. Anderson, 102 Fla. 731, 136 So. 557 (1931).

Test applicable in determining pecuniary loss to plaintiff suing for wrongful death is what sum will compensate plaintiff for pecuniary loss sustained. W.B. Harbeson Lumber Co. v. Anderson, 102 Fla. 731, 136 So. 557 (1931).

When an administrator has a right of action for the wrongful death of a person, he may recover the value at the decedent's death of the prospective earnings and savings that from the evidence could reasonably have been expected but for the death of the decedent. Marianna & B.R. Co. v. May, 83 Fla. 524, 91 So. 553 (1922).

In an action for wrongful death brought by decedent's administrator for loss of prospective accumulated estate, the amount of recovery is not the value of decedent's life to anyone or to the public, but the recovery is limited to the present value of an estate which proofs show decedent may reasonably have been expected to earn and save had he lived, where the accumulation of an estate may reasonably have been expected, and the present value thereof can be ascertained with reasonable certainty from trustworthy evidence on all matters affecting the probabilities as to life expectancy, physical condition, earning capacity, opportunities, habits, and other pertinent circumstances. Marianna & B.R. Co. v. May, 83 Fla. 524, 91 So. 553 (1922).

Administrator's recovery was limited to present value of estate reasonably expected. Marianna & B.R. Co. v. May, 83 Fla. 524, 91 So. 553 (1922).

Administrator may recover value of prospective earnings and savings. Marianna & B.R. Co. v. May, 83 Fla. 524, 91 So. 553 (1922).

When an administrator has a right of action for the wrongful death of a person he may recover the value at the decedent's death of the prospective earnings and savings that from the evidence could reasonably have been expected but for the death of the decedent. Jacksonville Electric Co. v. Bowden, 54 Fla. 461, 45 So. 755 (1908).

In an action for death by wrongful act, the jury should, in assessing the damages, take into consideration such future pecuniary losses as the beneficiaries will suffer as the direct consequences of the death. Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894).

26. ---- Loss of services and support, elements of damages

Award of damages to surviving children under Florida Wrongful Death Act for value of lost support and services was clearly erroneous, where that claim had been waived and where, in any event, district court had not considered such elements as relationship between surviving children and decedent and varying ages of children and had awarded identical amounts for surviving children of different ages. Davis v. Marsh, C.A.11 (Fla.)1987, 807 F.2d 908.

Under Florida law, it is not necessary to hire others as replacements for decedent in order to recover damages in a wrongful death action for loss of decedent's services. Etheridge v. Piper Aircraft Corp., 1977, 559 F.2d 1027.

Under Florida Wrongful Death Act, as it existed in 1971, surviving widow was limited to recovering the present value of deceased husband's lost support. Downs v. U. S., 1975, 522 F.2d 990.

When single element of damage is pecuniary value of loss of support suffered by plaintiff, this does not mean that recovery is limited to a present value of anticipated support which must be measured to mathematical certainty. Bould v. Touchette, 349 So.2d 1181 (1977), on remand 369 So.2d 451.

Just as it is not necessary for the surviving spouse to hire someone to render the services that the decedent previously performed, it is also unnecessary that any other dependents hire someone to perform those same services as a condition of recovery in a wrongful death action. Smyer v. Gaines, App. 1 Dist., 332 So.2d 655 (1976).

Under the new Wrongful Death Act, the surviving spouse and all of the dependent blood relatives are to receive compensation for the loss of services and support previously provided by the decedent. Smyer v. Gaines, App. 1 Dist., 332 So.2d 655 (1976).

If family-owned corporation was wholly owned family business operated by husband, jury was entitled to consider the value of future services lost to that business as result of wrongful death of wife who had worked in the business gratis. Atlantic Coast Line R. Co. v. Braz, 196 So.2d 109 (1967), conformed to 196 So.2d 449.

Surviving husband who sued for death of wife was not entitled to claim damages for loss of services and support wife had rendered to her children by former marriage. Holland v. Hall, App. 1 Dist., 145 So.2d 552 (1962).

27. ---- Loss of net accumulations, elements of damages

Under Florida law, decedent's personal expenses and support of survivor had to be deducted from his net business or salary income in calculating net accumulations, for purposes of wrongful death action brought by widow. Higgins v. Kinnebrew Motors, Inc., 1977, 547 F.2d 1223.

Where decedents did not have spouses or lineal descendants, awarding decedents' estates damages, in wrongful death actions, for decedents' loss of net accumulations was fundamental error requiring reversal notwithstanding lack of appropriate objection at trial. Marks v. Delcastillo, App. 3 Dist., 386 So.2d 1259 (1980), review denied 397 So.2d 778.

Damages for a decedent's loss of net accumulations are recoverable in a wrongful death action only when the decedent has left a spouse or lineal descendants. Marks v. Delcastillo, App. 3 Dist., 386 So.2d 1259 (1980), review denied 397 So.2d 778.

Adult children of one who was killed by negligence of another could not recover damages for loss of net accumulations under Wrongful Death Act when they were not dependent upon decedent. Capiello v. Goodnight, App. 2 Dist., 357 So.2d 225 (1978), appeal dismissed 365 So.2d 712.

Though 64 year old decedent had acquired only an automobile and home, while rearing and supporting four children, in view of fact that responsibility of rearing and supporting children was practically at an end, item of widow's dower or legacy was proper item for consideration in determining widow's loss by reason of decedent's death, since decedent may have accumulated something during the remainder of his life. Frazier v. Ewell Engineering & Contracting Co., 62 So.2d 51 (1952).

28. ---- Trust income, elements of damages

Executrix of estate was not entitled to recover loss of income received from trust, pursuant to definition of "net accumulations" contained in § 768.18(5), when said income did not result from the skill or effort of the decedent. Wilcox v. Leverock, 548 So.2d 1116 (1989), answer to certified question conformed to 889 F.2d 1004.

29. ---- Taxes, elements of damages

Damages which husband's estate sustained as a result of premature payment of estate taxes, including loss of use of money and loss of appreciation on land sold to pay taxes, were not compensable items of damages. Hiatt v. U.S., C.A.11 (Fla.)1990, 910 F.2d 737.

In determining amount of damages in wrongful death action, real estate taxes paid on residence occupied by decedent during her lifetime were not entitled to treatment as investment expense, rather than as estate-reducing personal expense; expenses of maintaining person's life-style such as shelter, and expenses incidental to shelter, were personal in nature. Lindsay v. Allstate Ins. Co., App. 3 Dist., 561 So.2d 427 (1990).

The increased amount paid to the United States government for estate taxes as the result of an 80-year-old decedent's premature death was not a recoverable element of damages under this act, which measured loss to the decedent's estate as a consequence of an early death, without consideration for consequences of federal estate taxes upon what would otherwise have been available for distribution. Lindsay v. Allstate Ins. Co., App. 3 Dist., 561 So.2d 427 (1990).

30. ---- Life expectancy of decedent and survivors generally, elements of damages

In determining widow's damages, consideration should be given amounts which widow might reasonably have expected to receive from husband's estate if her life expectancy exceeded his. Seaboard Air Line R. Co. v. Martin, 56 So.2d 509 (1952).

Where several minors join in one action for death of father, recovery which could be had was controlled as to each minor by the life expectancy of the father, and no minor could recover for the loss of support for a greater period than the life expectancy of the father. Pidcock-Jones Co. v. Watson, 141 Fla. 376, 193 So. 305 (1940).

Where jury might properly have found that decedent would probably have lived some time and accumulated property of at least small value had he not died as result of defendant's alleged negligence, trial court properly granted new trial after directed verdict for defendant, since at least nominal damages were recoverable. Atlantic Coast Line R. Co. v. Woods, 110 Fla. 147, 148 So. 542 (1933).

In estimating the damages for death by wrongful act, the probable duration of the life of decedent should be considered. Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894).

31. ---- Mental pain and suffering, elements of damages

A widow, suing for the death of her husband, could not recover for her grief. Dina v. Seaboard Air Line R. Co., 90 Fla. 558, 106 So. 416 (1926); St. Johns Electric Co. v. Lawler, 90 Fla. 188, 105 So. 818 (1925); Florida Cent. & P.R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338 (1899).

In an action by a widow under wrongful death act for the death of her husband, she could not recover for the pain and suffering of the deceased. Dina v. Seaboard Air Line R. Co., 90 Fla. 558, 106 So. 416 (1922); Florida Cent. & P.R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338 (1899).

Physicians' professional association was entitled to require psychological examination of two children of decedent, for purposes of defending against wrongful-death action brought by personal representative of decedent's estate, where action was brought on behalf of children on theory of mental pain and suffering after decedent's death. Florida Emergency Physicians-Kang and Associates, M.D., P.A. v. Parker, App. 5 Dist., 800 So.2d 631 (2001), rehearing denied.

Term "close relatives," within this section authorizing recovery and survival in wrongful death actions for pain and suffering of close relatives, was not intended to be an accurate specification of persons who could recover pain and suffering for wrongful death, but was a collective phrase intended to describe certain survivors who were authorized to recover for pain and suffering, viz., a surviving spouse, minor children of decedent, and each parent of a deceased minor child. Wojcik v. United Services Auto. Ass'n, App. 4 Dist., 347 So.2d 1051 (1977).

Damages may not be recovered in a survival and wrongful death action for pain and suffering of parents resulting from loss of a deceased adult child. Wojcik v. United Services Auto. Ass'n, App. 4 Dist., 347 So.2d 1051 (1977).

1972 Wrongful Death Act eliminates claims for pain and suffering of decedent from time of injury to time of death; however, decedent's close surviving relatives are allowed recovery for their personal pain and suffering. Florida Clarklift, Inc. v. Reutimann, App. 2 Dist., 323 So.2d 640 (1975), certiorari denied 336 So.2d 1181, certiorari denied 341 So.2d 293.

Rev.Gen.St.1920, § 4961 did not make mental anguish of the widow an element of damages in her action for the wrongful death of her husband. St. Johns Electric Co. v. Lawler, 90 Fla. 188, 105 So. 818 (1925).

Widow was not entitled to recover for husband's mental or physical suffering from the injury. Florida Cent. & P.R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338 (1899).

32. ---- Funeral expenses, elements of damages

Right to recover reasonable funeral expenses in survival action vested in personal representative of a decedent who had been killed by tortious act of another, and where expenses for decedent's funeral had been paid by surviving spouse or parent or other person, that person was entitled to reimbursement from personal representative; overruling International Shoe Co. v. Hewitt, 167 So. 7, 123 Fla. 587 and Doby v. Griffin, 171 So.2d 404; modifying Ellis v. Brown, 77 So.2d 845. Sinclair Refining Co. v. Butler, 190 So.2d 313 (1965).

Funeral expenses could not be recovered in an action brought under Wrongful Death Act by surviving spouse, child or dependent. Sinclair Refining Co. v. Butler, 190 So.2d 313 (1965).

An administrator suing to recover funeral expenses derived his authority and had duty to sue under probate laws, and it was not necessary to show nonexistence of widow or children or dependents in order to show status to maintain suit. Sinclair Refining Co. v. Butler, 190 So.2d 313 (1965).

In death action by surviving husband, funeral expenses incurred by husband for wife's burial were recoverable damages, where evidence showed that bill for such expenses was made out against and paid by husband, and there was no complaint that husband had been unreasonably extravagant with respect to amount of funeral expenses. Potts v. Mulligan, 141 Fla. 685, 193 So. 767 (1940).

In death action, funeral and burial expenses if recoverable were to be claimed as special damages. City of Coral Gables v. Neill, 133 Fla. 4, 182 So. 432 (1938).

33. ---- Punitive damages, elements of damages

Punitive damages were not allowable against city. Walker v. City of Miami, App. 3 Dist., 337 So.2d 1002 (1976).

In action in which father sought to recover for wrongful death of son and to recover as administrator of son's estate, striking a claim for punitive damages against defendant electric company was proper, in view of failure to develop any theory that would bring case within rule requiring wantonness or reckless indifference and disregard. Walker v. City of Miami, App. 3 Dist., 337 So.2d 1002 (1976).

Upon proper allegations and proof of actual damages, punitive damages are recoverable under 1972 Wrongful Death Act. Florida Clarklift, Inc. v. Reutimann, App. 2 Dist., 323 So.2d 640 (1975), certiorari denied 336 So.2d 1181, certiorari denied 341 So.2d 293.

In wrongful death action by personal representative of decedent's estate for damages to decedent's mother who died prior to entry of final judgment, award of compensatory damages to decedent's estate for medical and funeral expenses was sufficient predicate for jury to consider an award of punitive damages. Florida Clarklift, Inc. v. Reutimann, App. 2 Dist., 323 So.2d 640 (1975), certiorari denied 336 So.2d 1181, certiorari denied 341 So.2d 293.

Punitive damages could be recovered in survival and wrongful death action. Pan American Bank of Sarasota v. Langan, App. 2 Dist., 315 So.2d 216 (1975).

Punitive damages for negligently caused death may be claimed when one or more of the elements of compensatory damages recoverable under Wrongful Death Act are established but there can be only one punitive damages recovery for each death for which claims of survivors may be instituted under the Act; survivors are not entitled to individual claims for punitive damages. Martin v. United Sec. Services, Inc., 314 So.2d 765 (1975).

Punitive damages are recoverable only when actual damages are shown. Martin v. United Sec. Services, Inc., 314 So.2d 765 (1975).

Punitive damages were not to be considered as incident to damages allowed for death under Comp.Gen. Laws 1927 § 7047 creating new action for wrongful death. Florida East Coast Ry. Co. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933).

Exemplary damages were not recoverable in action for wrongful death notwithstanding facts of case would warrant recovery of such damages had no death ensued from negligence proved. Florida East Coast Ry. Co. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933).

34. Amount of damages--In general

Testimony about where decedent worked did not support jury's wrongful death damages award of $150,000 for net accumulations, absent evidence of decedent's salary and how much decedent may have saved throughout his normal life expectancy. Tobias v. Osorio, App. 4 Dist., 681 So.2d 905 (1996).

Jury award against railroad of $2.8 million dollars in wrongful death suit by children of passenger who was fatally injured in train derailment, which was divided equally among passenger's six adult children and one adult stepchild, was not excessive; each child suffered compensable loss that was aggravated by passenger's 29-day hospitalization, award was within range argued by parties, and jury reached verdict in logical manner. National R.R. Passenger Corp. (Amtrak) v. Ahmed, App. 4 Dist., 653 So.2d 1055 (1995), rehearing denied.

Damages for medical expenses incurred on behalf of motorcycle passenger who was killed in collision with automobile should have equaled gross amount of hospital bill paid by or on behalf of victim, with no deduction for credit or payment by hospital for organs removed for transplantation; victim's estate should not have suffered for gesture of allowing organ removal. Veterans Auto Sales and Leasing Co., Inc. v. Poole, App. 5 Dist., 649 So.2d 264 (1994), rehearing denied, review granted 660 So.2d 714, quashed 668 So.2d 189, on remand 683 So.2d 567.

Awards of $800,000 to surviving children upon death of their fathers was not excessive; there was extensive and heart-rending evidence of particular relationships between the children and their fathers. Alamo Rent-A-Car, Inc. v. Clay, App. 3 Dist., 586 So.2d 394 (1991).

In action brought by administratrix of decedent's estate against railway company for death of decedent which occurred when defendant's train collided with decedent's truck while it was stopped on railroad track, damage award in amount of $130,000 was excessive and not in accord with proven tangible elements of damage. Seaboard Coast Line R. Co. v. Kubalski, App. 4 Dist., 323 So.2d 32 (1975).

In wrongful death action brought by administratrix, evidence that decedent was 64-year-old widow with life expectancy of approximately 13 years, that she was not employed and had no business, skills, earnings or assets other than personal effects, and that she received minimal social security benefits and occasional gratuitous financial assistance from her niece sufficient only to meet her day to day needs provided no reasonable basis for $10,000 verdict nor for any other than a nominal award. Seaboard Coast Line R. Corp. v. Robinson, App. 2 Dist., 263 So.2d 626 (1972).

In an action for wrongful death, the determination of the amount of damages is by no means left to the uncontrolled discretion of the jury, and their estimate must be based on facts in evidence and confined to those damages which are pecuniary in their nature and result from deceased's death. Southern Utilities Co. v. Davis, 83 Fla. 366, 92 So. 683 (1922).

35. ---- Personal expenses, amount of damages

Value of house and $40,000 repayment that automobile driver made to his in- laws for living there were personal expenses incidental to shelter and so should not have been included in calculating driver's net accumulations in awarding damages for wrongful death of driver. Kidron, Inc. v. Carmona, App. 3 Dist., 665 So.2d 289 (1995).

36. ---- Contributory negligence, amount of damages

Verdict for $10,000 for death of lineman of electric company, who was 31 years of age, in good health, and with life expectancy of 34.63 years, married, and earning $35 a week, indicating that jury in fixing verdict allowed credit for contributory negligence of lineman was not excessive. Tampa Elec. Co. v. Hardy, 139 Fla. 142, 190 So. 478 (1939).

Verdict for $15,000 for death of brakeman who fell between flat cars while approaching engine with bright headlight was excessive by $6,000, in view of evidence indicating that deceased was negligent. Atlantic Coast Line R. Co. v. Fogleman, 117 Fla. 334, 158 So. 108 (1934).

37. ---- No dependents surviving, amount of damages

The measure of damages for wrongful death of decedent leaving no dependents is the difference between the value of decedent's estate at death and what the value of the estate would have been had decedent not been killed, discounted actuarily to the present value. Herzig v. Swift & Co., 1946, 154 F.2d 64, certiorari denied 66 S.Ct. 1122, 328 U.S. 849, 90 L.Ed. 1622.

Where decedent at time of his death was twenty years old, unmarried, without dependents, and had, following his graduation from high school, except for short period, remained with, and joined, his father in farming operations on father's farm, award of $5,000 would be made to administrator of decedent's estate for decedent's prospective earnings and wages. English v. U.S., N.D.Fla.1953, 115 F.Supp. 529.

Personal representative of employee who had died from injuries received in course of his employment leaving no dependents was entitled to recover compensation on behalf of employee's estate over and above medical and funeral expenses. Maryland Cas. Co. v. Sutherland, 125 Fla. 282, 169 So. 679 (1936).

38. ---- Dependent survivors, amount of damages

In wrongful death action brought by mother of daughter and son-in-law who were killed in automobile accident, award of $100,000 compensatory damages for loss of support to 87-year-old plaintiff who was unemployed and had been supported by accident victims since 1945, who was in excellent health and who was totally ambulatory, and whose need for support increased during period between accident and trial, was not excessive. Bould v. Touchette, 349 So.2d 1181 (1977), on remand 369 So.2d 451.

Award of $6,500 to dependent 63 year old mother and 32 year old brother for death of son-brother who had contributed $8 of his $18 weekly earnings to support of mother and brother was not excessive. Cudahy Packing Co. v. Ellis, 105 Fla. 186, 140 So. 918 (1932).

39. ---- Minor children, amount of damages

Minor child's recovery under Wrongful Death Act of damages for lost parental companionship, instruction and guidance, and for mental pain and suffering is not limited by the period of minority and may extend over the life expectancy of the child; such damages should be calculated based on the joint life expectancy of both the deceased parent and the child. Meeks ex rel. Estate of Meeks v. Florida Power & Light Co., App. 5 Dist., 816 So.2d 1125 (2002), review granted 837 So.2d 408.

Decedent's wife, who brought against manufacturer of asbestos products for asbestos-related death of her husband on behalf of herself, her husband's estate, and their children, was entitled to new trial on issue of children's damages for lost parental companionship, instruction, and guidance and for mental pain and suffering; there was substantial, undisputed, and unrebutted testimony that decedent was dedicated father who played active role in lives of his children, that decedent had close relationship with his children, and that children suffered great loss as result of decedent's death. Snoozy v. U.S. Gypsum Co., App. 3 Dist., 695 So.2d 767 (1997), rehearing denied, review denied 700 So.2d 688.

A mass verdict for $22,500 for death of the father of minors, 2 years, 15 years, and 17 years old, respectively, in absence of evidence as to the life expectancy of father and amount, if any, the father was contributing to support of minors at time of his death, was excessive. Pidcock-Jones Co. v. Watson, 141 Fla. 376, 193 So. 305 (1940).

40. ---- Married children, amount of damages

Marriage of minor child after death of parent changes quantum of damages recoverable for death of parent. Florida Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911 (1938).

41. ---- Spouse, amount of damages

Verdict of $125,000 to widow for wrongful death of truck driver, including $75,600 as present value of deceased's earnings and $49,400 attributable to such elements of damage as loss of comfort, companionship, protection, marital relations, and station in society, was not so great as to justify judicial interference. Nat Harrison Associates, Inc. v. Byrd, App. 4 Dist., 256 So.2d 50 (1971).

Award of $100,000 for wrongful death of wife who had cared for home and family and assisted husband in business was not excessive, where joint life expectancy of husband and wife at time of her death was 26 years and it would cost $280 per month, in addition to maintenance, to hire persons necessary to look after decedent's family after her death. Lithgow v. Hamilton, 69 So.2d 776 (1954).

Amount which widow of retired soldier received as such widow was received by her in her own right, and was improperly deducted from item of soldier's earnings in determining widow's loss caused by soldier's death. Frazier v. Ewell Engineering & Contracting Co., 62 So.2d 51 (1952).

$7,500 to widow for death of husband 52 years of age having a life expectancy of 18.09 years, with whom plaintiff, having a grown daughter by prior marriage, had lived for approximately 8 years during which time they had purchased a small home two miles from where deceased had been employed for approximately 8 years, was proper though widow failed to establish exact age and life expectancy, where jury saw widow when she appeared as a witness and could estimate her age. Stanford Fruit Growers v. Frazier, 158 Fla. 135, 27 So.2d 906 (1946).

42. ---- Loss of consortium, amount of damages

For loss of companionship and consortium, surviving husband, suing the United States under tort claims act, was entitled under prior Florida wrongful death statutes to award of $25,000. Legare v. U.S., S.D.Fla.1961, 195 F.Supp. 557.

Award to widow of $125,000 for wrongful death of her husband who had a 14- year-plus life expectancy and who had had an extraordinary close, affectionate and dependent relationship with the widow did not exceed allowable limit. Ward v. Orange Memorial Hospital Ass'n, Inc., App. 4 Dist., 193 So.2d 492 (1966).

43. ---- Marital discord, amount of damages

Award of $100,000 in noneconomic damages to widow in wrongful death action was not so inadequate as to constitute clear error, where marriage was far from ideal and wife stated that she had contemplated divorce throughout all of her 34 years of marriage. Hiatt v. U.S., C.A.11 (Fla.)1990, 910 F.2d 737.

Evidence of marital discord is probative of extent of survivor's noneconomic loss as a result of spouse's wrongful death. Hiatt v. U.S., C.A.11 (Fla.) 1990, 910 F.2d 737.

44. ---- Loss of probable prospective estate, amount of damages

Where at time of death husband-father had gross annual earnings of $9,600 and a net after tax income of $7,200, it was not abuse of discretion, in computing award under Florida Wrongful Death Act, to base computations of future income on an annual after tax income of $9,600, which increase was reasonable considering decedent's age, health and industry. Downs v. U. S., 1975, 522 F.2d 990.

Proper measure of damages for wrongful death of helicopter pilot was the probable loss of net accumulations of his estate calculated pursuant to statute and reduced to present value, plus funeral expenses. Nakajima v. U.S., S.D.Fla.1991, 759 F.Supp. 1573, affirmed in part, reversed in part 965 F.2d 987.

Award of $17,000 to administrator of estate of 19 year old sailor killed while on leave through negligence of agents of United States in maintenance of swimming pool as compensation for prospective earnings was fair, just, and reasonable. Brown v. U.S., 1951, 99 F.Supp. 685.

Award of $50,000, for wrongful death of 23-year-old nurse's aide, who exhibited above average ability in work performance and demonstrated desire to become a licensed practical nurse and ability to become an LPN or even registered nurse, was not excessive and was within range permitted by economist's conservative appraisal of future earnings. Griesemer v. Prathers, Inc., App. 2 Dist., 413 So.2d 68 (1982).

$15,000 for death of 36 year old mother with life expectancy of 31.07 years, who had a very limited earning capacity and who devoted her entire time to support and care of her children, was excessive by $2,500. Florida Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911 (1938).

45. ---- Loss of services and support, amount of damages

Finding that husband would have worked only until age 65 and have used 50% of his earnings for his personal consumption was sufficiently supported by evidence presented as to widow's lost support in Florida wrongful death action, including expert economist's testimony based on work-life expectancy tables. Hiatt v. U.S., C.A.11 (Fla.)1990, 910 F.2d 737.

For loss of services of wife in rearing six children, ranging in age from a few days to twelve years, naval officer, suing the United States under tort claims act, was entitled under Florida wrongful death statutes to award of $98,838, representing present value of $8,500 per year for 18 years. Legare v. U.S., S.D.Fla.1961, 195 F.Supp. 557.

46. ---- Mental pain and suffering, amount of damages

Award of $50,260 damages for pain and suffering where decedent survived for 23 hours in semiconscious or unconscious condition was not clearly arbitrary, or so excessive as to indicate jury was influenced by passion, prejudice, corruption, or other improper motive, or so excessive as to shock judicial conscience. Nimnicht v. Ostertag, App. 1 Dist., 225 So.2d 459 (1969), certiorari denied 232 So.2d 179.

Award to estate of deceased hospital patient of $50,000 for patient's pain and suffering during the 17-day period elapsing from the mismatched blood transfusion and death following the entry of patient, having a 14-year-plus life expectancy, into hospital for routine prostate surgery was not excessive. Ward v. Orange Memorial Hospital Ass'n, Inc., App. 4 Dist., 193 So.2d 492 (1966).

47. ---- Funeral expenses, amount of damages

Verdict for $4,500, which improperly included $553 funeral expenses, for death of 21-year-old woman who had engaged in clerical and stenographic work at salary of $100 per month for less than year some four years prior to her death, and who had earned no money since was excessive and would be reduced to $2,500. International Shoe Co. v. Hewitt, 123 Fla. 587, 167 So. 7 (1936).

48. ---- Punitive damages, amount of damages

To assess punitive damages, a jury must evaluate the degree of malice, wantonness, oppression, or outrage demonstrated by the evidence in the case. Humana Health Ins. Co. of Florida, Inc. v. Chipps, App. 4 Dist., 802 So.2d 492 (2001).

In survivorship action brought by personal representative of estate of two victims of automobile accident, in which plaintiff was awarded $65,000 compensatory damages, award of $800,000 punitive damages in favor of plaintiff and against owner of tractor trailer was not excessive, in view of fact that owner of tractor trailer had net worth at time of trial of $13,145,000. Bould v. Touchette, 349 So.2d 1181 (1977), on remand 369 So.2d 451.

In absence of evidence as to defendant's net worth, it could not be said that $5,000 in punitive damages awarded against such defendant was excessive. Bould v. Touchette, 349 So.2d 1181 (1977), on remand 369 So.2d 451.

48.5. Apportionment of fault

Manufacturer of asbestos products was not entitled to instructions and verdict form respecting liability of nonparties in action brought by decedent's wife against manufacturer for asbestos-related death of her husband; manufacturer failed to introduce evidence as to specifics of different products, how often those products were used on job sites, and toxicity of those products as they were used. Snoozy v. U.S. Gypsum Co., App. 3 Dist., 695 So.2d 767 (1997), rehearing denied, review denied 700 So.2d 688.

48.7. Arbitration

Arbitration provisions of the Medical Malpractice Act governed the elements of all of the damages available, including economic damages, regardless of whether the medical malpractice action involves a wrongful death. St. Mary's Hospital, Inc. v. Phillipe, 769 So.2d 961 (2000), rehearing denied.

49. Pleadings--In general

Statement of claim, which was premised on wrongful death claim against estate, adequately put personal representative of the estate on notice as to basis of the claim, and the claim was not insufficient on ground it failed to adequately designate amount claimed, even though the claim did not state exact dollar amount claimed but only stated that "the claim is presently unliquidated but is in excess of $2,500." Bell v. Harris, App. 1 Dist., 381 So.2d 1167 (1980), petition for review denied 392 So.2d 1371.

Complaint which sufficiently states cause of action is not vulnerable to a motion to dismiss by its allegation of an improper element of damages. Williams v. Legree, App. 2 Dist., 206 So.2d 13 (1968).

Complaint of widow in wrongful death action against manufacturer of power drill being used by deceased at time he was electrocuted when he attempted to connect plug of drill into an extension cord was insufficient to state a cause of action in absence of allegations of facts from which reasonable men might conclude that plug was unreasonably dangerous or defective and in absence of any allegations of latent characteristics or of any deviation from norm, either in comparison with similar plugs or in comparison with those used for similar purposes. Royal v. Black & Decker Mfg. Co., App. 3 Dist., 205 So.2d 307 (1967), certiorari denied 211 So.2d 214.

A declaration which failed to show that deceased, for whose death recovery was sought, had not remarried after his divorce from the mother of plaintiffs, who were deceased's minor children, did not state a cause of action as against contention that it should be presumed that the celibacy of the deceased continued after the divorce. Southern Liquor Distributors v. Kaiser, 150 Fla. 52, 7 So.2d 600 (1942).

50. ---- Dependency, pleadings

Allegation that plaintiff was 54 years old and dependent on deceased for support and had received such support during his lifetime was sufficient allegation of dependency without alleging how poverty was caused. Self v. Sinclair Refining Co., 1934, 69 F.2d 948.

Complaint of a daughter, containing allegation that defendant, through its negligence, caused death of plaintiff's father, who, under a divorce decree, was required to make payments of $100 a month to her for her maintenance and support, failed to state a cause of action against defendant for interfering with plaintiff's contractual rights, if any, to support and maintenance, in view of failure of the complaint to contain any allegations from which it could be inferred that defendant knew of any contract that might have existed between decedent and his divorced wife for the benefit of plaintiff, and in view of lack of any allegations that defendant had any intention of interfering with the contract in such manner as to induce a breach thereof by decedent. Steffan v. Zernes, App. 1 Dist., 124 So.2d 495 (1960).

51. ---- Damages, pleadings

Under version of statute providing for civil enforcement of nursing home residents' rights in effect at time of one resident's death, complaint against nursing home seeking damages for lost support and services, loss of companionship, and mental pain and suffering for nursing home resident's surviving spouse validly alleged negligence based on resident's statutorily established rights and sought statutorily authorized damages under the Wrongful Death Act, even though it did not incorporate the words "Wrongful Death Act." Graber v. Joseph L. Morse Geriatric Center, Inc., App. 4 Dist., 837 So.2d 473 (2002).

Complaint of mother who was living apart from her husband but who was not legally separated stated cause of action, for mental pain and suffering for wrongful death of her daughter who was not in mother's immediate custody at time of daughter's death, but complaint failing to allege that mother was supporting the daughter at the time of her death failed to allege facts entitling her to recover damages for loss of services. Williams v. Legree, App. 2 Dist., 206 So.2d 13 (1968).

Complaint alleging that estate of decedent, because of decedent's wrongful death, had been diminished and had incurred funeral expenses was adequate to recover damages and was not subject to motion to dismiss for failure to state claim upon which relief could be granted. Love v. Hannah, 72 So.2d 39 (1954).

52. ---- Funeral expenses, pleadings

Where funeral expenses were itemized in an exhibit which was made a part of the declaration in husband's action for death of wife, the funeral expenses were sufficiently pleaded to authorize the recovery thereof, although body of declaration contained no express claim of damages for funeral expenses. Potts v. Mulligan, 141 Fla. 685, 193 So. 767 (1940).

53. ---- Amendments of pleadings

Notwithstanding Florida view that nonexistence of persons in class with higher preference was substantive to plaintiff's cause of action for wrongful death under prior statute, plaintiffs suing in federal court under Florida wrongful death statute were properly permitted to amend complaint to conform to proof, after statute of limitations had run, to change description of plaintiffs from "minor children" of decedent to "dependents." Longbottom v. Swaby, 1968, 397 F.2d 45.

Under either the federal practice or that of Florida, a plaintiff suing as widow of a decedent to recover for his wrongful death may be permitted to amend her declaration to change the relation in which she sues from that of widow to that of administratrix. Hall v. Louisville & N.R. Co., 1907, 157 F. 464.

Action in which administrator of estate had asserted cause of action for decedent's pain and suffering prior to death, which claim had been dismissed by trial court, would be remanded to allow amendment of complaint with leave for amendment to make claim for pain and suffering of close relatives of decedent. Alexander v. Alterman Transport Lines, Inc., App. 1 Dist., 327 So.2d 860 (1976).

54. Discovery

In action against trucking company and employee for compensatory and punitive damages for accident which resulted in woman's death, record was inadequate to support finding that sanctions should have been imposed upon company for failure to produce net worth statements. Alexander v. Alterman Transport Lines, Inc., App. 1 Dist., 387 So.2d 422 (1980).

55. Trial

Claim that jury should not have been allowed to award damages for pain and suffering to surviving children computed over joint life expectancies of children and their father was waived by failure to object in trial court. Stresscon Intern., Inc. v. Helms, App. 3 Dist., 390 So.2d 139 (1980).

56. Admissibility of evidence--In general

In wrongful death action, probative value of evidence of widow's traumatic childhood was not substantially outweighed by its prejudicial effect, as evidence was necessary to demonstrate the enormity of the loss widow sustained in losing a person on whom she was so dependent for emotional support, and evidence was not explored in great detail and did not become a feature of the trial. David v. Brown, App. 4 Dist., 774 So.2d 775 (2000), rehearing denied, appeal denied 791 So.2d 1096.

In wrongful death action, decedent's alleged paramour's testimony that decedent promised shortly before his death that he would divorce his wife and marry paramour and that decedent gave certain credible explanation for having to wait was sufficiently probative of decedent's intent and probable future actions so as to be admissible on issue of survivor's damages. Adkins v. Seaboard Coast Line R. Co., App. 2 Dist., 351 So.2d 1088 (1977).

In measuring recovery for loss of decedent's prospective estate, evidence of age, probable duration of life, habits of industry, means, business, earnings, health, skill and reasonable future expectations may be considered. Seaboard Coast Line R. Corp. v. Robinson, App. 2 Dist., 263 So.2d 626 (1972).

Admission, in husband's action for wrongful death of wife, of evidence of wife's earnings outside of household was not error. Leaseco, Inc. v. Bartlett, App. 4 Dist., 257 So.2d 629 (1971), certiorari denied 262 So.2d 447.

Evidence that after death of mother following automobile accident, dependent daughter received a pecuniary settlement in lieu of alimony from former husband, was inadmissible for consideration by jurors in reduction, if any, of the award to the daughter under the wrongful death statute. Wadsworth v. Friend, App. 4 Dist., 201 So.2d 641 (1967).

In wrongful death action, testimony that a few weeks prior to fatal accident deceased visited dissipated married couple several times was not admissible to show that deceased's life expectancy was shorter than average expectancy shown by life tables. International Shoe Co. v. Hewitt, 123 Fla. 587, 167 So. 7 (1936).

57. ---- Business records, admissibility of evidence

In action under Florida law for wrongful death of a partner, oral testimony of one of the partners as to amount of partnership earnings was improperly rejected on theory that it was not the best evidence, and that the books of the partnership should have been produced to prove the firm's earnings, since the issue was the partnership's earnings which for convenience were recorded in books of account after the relevant facts occurred. Herzig v. Swift & Co., 1945, 146 F.2d 444.

In action against trucking company and driver for compensatory and punitive damages for accident resulting in woman's death wherein administrator introduced employer's latest financial statement and other evidence sufficient to show net worth of company and profits of company, prejudice to plaintiff by exclusion of company's tax returns was not shown, and therefore, error in exclusion of such evidence did not warrant reversal. Alexander v. Alterman Transport Lines, Inc., App. 1 Dist., 387 So.2d 422 (1980).

57.5. ---- Child support, admissibility of evidence

Evidence that decedent failed to support minor child not living with him was inadmissible as irrelevant in wrongful-death action brought by personal representative of decedent's estate, where child did not bring claim for economic loss. Florida Emergency Physicians-Kang and Associates, M.D., P.A. v. Parker, App. 5 Dist., 800 So.2d 631 (2001), rehearing denied.

58. ---- Existence of surviving minor children, admissibility of evidence

Evidence that decedent left surviving minor children was competent upon question of damages. Director General of Railroads v. Into, 83 Fla. 377, 91 So. 269 (1922).

59. ---- Number and ages of decedent's children, admissibility of evidence

In an action by a widow for the negligent killing of her husband, evidence as to the number and ages of the living children of herself and decedent was admissible. Escambia County Elec. Light & Power Co. v. Sutherland, 61 Fla. 167, 55 So. 83 (1911).

60. ---- Marital discord, admissibility of evidence

Evidence of domestic discord involving decedent is probative of extent of survivors' mental pain and suffering and their loss of decedent's companionship and protection. Adkins v. Seaboard Coast Line R. Co., App. 2 Dist., 351 So.2d 1088 (1977).

If evidence that decedent had intended to divorce his wife and terminate voluntary support of his survivors is admitted in a wrongful death action, trial court is required to admit proper evidence offered by survivors to establish amount of support which decedent would have been legally obligated to contribute in event of a divorce. Adkins v. Seaboard Coast Line R. Co., App. 2 Dist., 351 So.2d 1088 (1977).

61. ---- Maintenance and earnings, admissibility of evidence

Absence of evidence relating to cost of wife's maintenance does not render inadmissible competent evidence as to her earnings in action for wrongful death of wife. Leaseco, Inc. v. Bartlett, App. 4 Dist., 257 So.2d 629 (1971), certiorari denied 262 So.2d 447.

62. ---- Remoteness, admissibility of evidence

Witness' testimony as to condition of plaintiff's decedent two hours before collision in which he was killed was not too remote, and was admissible. Williamson v. Guerra, App. 1 Dist., 208 So.2d 302 (1968).

63. ---- Pain and suffering, admissibility of evidence

In wrongful death action, permitting jury to consider pain and suffering of decedent, who was described by eyewitnesses to be breathing at scene and who was definitely declared unconscious one-half hour after accident and some two hours before he died, in assessing damages to be awarded his estate was not error. McLeod v. Young, App. 4 Dist., 257 So.2d 605 (1972), certiorari denied 263 So.2d 230.

63.5. ---- Medical expenses, admissibility of evidence

Wrongful Death Act precluded trial court's consideration of medical expenses that were not charged against motorist's estate and paid for by motorist's insurer, in wrongful death action brought by personal representative of motorist's estate against automobile manufacturer. Dourado v. Ford Motor Co., App. 4 Dist., 2003 WL 354914 (2003).

The Wrongful Death Act does not authorize the admission of evidence of medical expenses not charged against the estate or paid by or on behalf of the decedent, as proof of economic loss. Dourado v. Ford Motor Co., App. 4 Dist., 2003 WL 354914 (2003).

64. ---- Loss of probable prospective estate, admissibility of evidence

Decedent's investment income, and size and nature of her estate were relevant and admissible on issue of damages in wrongful death action. Smith v. Lassing, App. 4 Dist., 189 So.2d 244 (1966), certiorari denied 195 So.2d 567.

In action for wrongful death of 61 year old widow, trial court improperly permitted executrix, for purpose of establishing damages, to introduce will of deceased's 85 year old employer who had made deceased residuary legatee of $12,000 estate. Benboe v. Booth, 61 So.2d 654 (1952).

65. ---- Remarriage of spouse, admissibility of evidence

Evidence that decedent's common-law wife remarried after decedent's death was inadmissible as irrelevant, in wrongful-death action, where evidence did not help prove of disprove physicians' liability or psychological damages sustained by decedent's surviving children. Florida Emergency Physicians-Kang and Associates, M.D., P.A. v. Parker, App. 5 Dist., 800 So.2d 631 (2001), rehearing denied.

In wrongful death action, evidence of remarriage of the decedent's spouse was admissible so that the whole truth would be known, but such evidence could not be considered in mitigation of any elements of damage recoverable under the Wrongful Death Act by the surviving spouse. Smyer v. Gaines, App. 1 Dist., 332 So.2d 655 (1976).

In wrongful death action brought by one spouse to collect damages resulting from wrongful death of other spouse, evidence of plaintiff's remarriage is inadmissible to mitigate damages. Seaboard Coast Line R. Co. v. Hill, 270 So.2d 359 (1972).

In an action for wrongful death of a spouse, evidence that surviving spouse had remarried was irrelevant and therefore inadmissible. Leaseco, Inc. v. Bartlett, App. 4 Dist., 257 So.2d 629 (1971), certiorari denied 262 So.2d 447.

In an action for wrongful death of a spouse, evidence of possibility of remarriage of surviving spouse would be inadmissible, not only because of being irrelevant, but also because of being too speculative and conjectural. Leaseco, Inc. v. Bartlett, App. 4 Dist., 257 So.2d 629 (1971), certiorari denied 262 So.2d 447.

66. ---- Expert testimony, admissibility of evidence

In wrongful death action brought by decedent's widow, her economics expert's testimony as to future damages was not rendered inadmissible by the fact that, relative to computing decedent's personal expenses and support of survivor which had to be deducted from his net business or salary income in calculating net accumulations, the expert relied on figures from the bureau of labor statistics, rather than obtaining or using the actual expenses of the spouses in his calculations. Higgins v. Kinnebrew Motors, Inc., 1977, 547 F.2d 1223.

Relevant testimony on issues of damages in wrongful death actions for loss of companionship and protection, mental pain and suffering, and lost parental companionship and instruction usually comes from survivors, friends, ministers, and others who testify as fact witnesses, as opposed to experts, because there is no objective standard by which to measure these kinds of damages; technical or mathematical calculations are impossible to make, and jury, guided by its judgment and everyday life experiences, is in best position to make fair assessment of damages. Angrand v. Key, 657 So.2d 1146 (1995).

Economic loss theory advanced by expert witness in wrongful death action to determine extent of damages was not in conformity with requirements of Florida Wrongful Death Act. Florida Freight Terminals, Inc. v. Cabanas, App. 3 Dist., 354 So.2d 1222 (1978).

Expert testimony concerning future inflationary trends was admissible in wrongful death action as basis of determine estimated value of loss of future support for survivors of automobile driver, who died in crossing accident between automobile and train. Seaboard Coast Line R. Co. v. Garrison, App. 2 Dist., 336 So.2d 423 (1976).

Mere fact that future rate of inflation is uncertain is not sufficient ground to prohibit jury from considering expert testimony as to inflationary trends in determining estimated value of loss of future support for decedent's survivors. Seaboard Coast Line R. Co. v. Garrison, App. 2 Dist., 336 So.2d 423 (1976).

Permitting an expert economist to testify on behalf of plaintiff in wrongful death action on issue of damages when defendant had not been afforded sufficient opportunity to depose witness and to prepare a defense to his testimony constituted an abuse of discretion requiring reversal and a new trial where record disclosed that decedent's actions constituted far more than 25% comparative negligence apparently found by jury to be chargeable to decedent and that damages awarded by jury, which to a great extent was founded upon witness' testimony, were far out of line. Norge Laundry Co. v. Prestridge, App. 1 Dist., 335 So.2d 300 (1976), certiorari denied 344 So.2d 326.

67. Evidence in support of punitive damages--In general

Punitive damages award against manufacturer in wrongful death suit arising out of rear-end collision causing automobile to burst into flames, killing plaintiff's wife, due to defective fuel system, did not create an irreconcilable conflict with federal regulation establishing criteria for motor vehicle fuel systems, and therefore award did not constitute an impermissible state regulation in a field preempted by Congress. Wolmer v. Chrysler Corp., App. 4 Dist., 474 So.2d 834 (1985), quashed 499 So.2d 823.

In action against trucking company arising from accident which resulted in woman's death, evidence that employee was visibly intoxicated when he left employer's terminal on day of accident presented issue for jury as to award of punitive damages based on negligent hiring or entrustment. Alexander v. Alterman Transport Lines, Inc., App. 1 Dist., 387 So.2d 422 (1980).

68. ---- Willfulness and wantonness, evidence in support of punitive damages

Expert testimony that standard of care received by patient at nursing home was "outrageous" deviation from acceptable standards was sufficient evidence of willful and wanton disregard for rights of others to permit award of punitive damages against companies owning and managing nursing home, in wrongful death action by estate and spouse of nursing home patient, whose cause of death was determined to be bacteremia with sepsis, due to extensive infected necrotic decubitus ulcers, which he developed at nursing home. Payton Health Care Facilities, Inc. v. Estate of Campbell By and Through Campbell for and on Behalf of Campbell, App. 2 Dist., 497 So.2d 1233 (1986), review denied 500 So.2d 545.

Evidence, including proof that convenience store had not established a comprehensive robbery prevention program and had not instituted any formal security programs, was insufficient to support finding that store was directly responsible for acts or omissions evidencing such willful and wanton disregard for rights of others as to subject owner to liability in its own right in death of decedent killed in store's parking lot during robbery attempt, and therefore store was not liable for punitive damages in wrongful death action. Lil' Champ Food Stores, Inc. v. Holton, App. 1 Dist., 475 So.2d 726 (1985), review denied 484 So.2d 8.

In wrongful death action against manufacturers of boat and defective steering wheel, evidence failed to establish that manufacturers actions or inactions amounted to willfulness, wantonness, maliciousness, recklessness, oppression or outrageous conduct so as to permit an award of punitive damages. Detroit Marine Engineering, Inc. v. Maloy, App. 1 Dist., 419 So.2d 687 (1982).

69. ---- Knowledge of defects, evidence in support of punitive damages

Personal representative of decedent driver's estate was not entitled to punitive damages against manufacturer of defective tire allegedly causing accident, though personal representative presented evidence that manufacturer knew of defects in tires it manufactured, where evidence related to different tires manufactured to different specifications and containing different compounds and ingredients, and where evidence did not support reasonable inference that manufacturer failed to take measures to inform affected users to return tires for replacement. Woelfel v. Firestone Tire & Rubber Co., App. 3 Dist., 493 So.2d 472 (1986), review denied 503 So.2d 329.

70. ---- Net worth evidence, evidence in support of punitive damages

Evidence of insurer's $1.7 billion indemnity agreement with parent company became relevant as to insured's punitive damages claim, once the insurer claimed that a large award would hurt or bankrupt the company financially. Humana Health Ins. Co. of Florida, Inc. v. Chipps, App. 4 Dist., 802 So.2d 492 (2001).

Evidence of net worth of payee and its principal was not necessary to support award of punitive damages on makers' counterclaim against payee and payee's principal for fraud in execution of promissory notes. Papcun v. Piggy Bag Discount Souvenirs, Food & Gas Corp., App. 5 Dist., 472 So.2d 880 (1985).

71. Burden of proof

Plaintiff suing for wrongful death had burden of proof. Pinkney v. Pinkney, App. 1 Dist., 198 So.2d 52 (1967).

Failure of plaintiff suing for wrongful death to carry the burden of proof justified directed verdict for defendant. Pinkney v. Pinkney, App. 1 Dist., 198 So.2d 52 (1967).

Plaintiff suing for wrongful death, to be entitled to recover, must show that he was, because of disability, dependent in fact upon deceased for support. W.B. Harbeson Lumber Co. v. Anderson, 102 Fla. 731, 136 So. 557 (1931).

Adults suing for wrongful death, to be entitled to recover, must establish that because of some disability they are actually unable to support themselves and actually dependent upon some one for support, coupled with reasonable expectation of support, or some reasonable claim to support, from deceased. W.B. Harbeson Lumber Co. v. Anderson, 102 Fla. 731, 136 So. 557 (1931).

72. Jury questions--In general

In wrongful death action, the weight to be given the testimony of both decedent's widow and her economics expert was for the jury to determine. Higgins v. Kinnebrew Motors, Inc., 1977, 547 F.2d 1223.

73. ---- Dependency, jury questions

In wrongful death action, question of dependency was properly submitted to jury. Smollin v. Wilson, 74 So.2d 685 (1954).

74. ---- Loss of probable prospective estate, jury questions

In action under Florida law for wrongful death of a partner in a firm which contracted for hoisting and rigging in building construction work, evidence as to decedent's health, habits, and industry was sufficient for jury on issue of value of the estate decedent would have accumulated. Herzig v. Swift & Co., 1945, 146 F.2d 444.

In an action by an administrator the jury should determine, from the testimony as to the age, character, and health of deceased, and the natural expectancy of life, and estimate the amount of the net earnings and accumulations he would reasonably have acquired during such expectancy, and find the cash value of such amount at the time of the trial, and find their verdict for such sum. Florida Cent. & P.R. Co. v. Sullivan, 1903, 120 F. 799, 57 C.C.A. 167, 2 Ohio Law Rep. 255.

In action for wrongful death of sixty-three-year-old woman, question for jury was, from evidence, what decedent would have accumulated by her skill and efforts, from date of her accidental death to date of her expected normal death, using such criteria as decedent's prospective earnings and savings, age, business, health, skill, and reasonable future expectations. Smith v. Lassing, App. 4 Dist., 189 So.2d 244 (1966), certiorari denied 195 So.2d 567.

Where jury might properly have found that decedent would probably have lived some time and accumulated property of at least small value had he not died as result of defendant's alleged negligence, trial court properly granted new trial after directed verdict for defendant, since at least nominal damages were recoverable. Atlantic Coast Line R. Co. v. Woods, 110 Fla. 147, 148 So. 542 (1933).

In action by an administrator for wrongful death of his decedent, where defendant's liability is shown, the jury have no discretion in assessing the damages sustained, but may consider evidence as to age, probable duration of life, habits of industry, means, business, earnings, health, and skill of the deceased and his reasonable future expectations and, if the conditions were such that he had no reasonable future expectations, the recovery would be merely nominal. Marianna & B.R. Co. v. May, 83 Fla. 524, 91 So. 553 (1922).

The elements entering into the value of a life to the estate of the deceased person are so various that they must be left under proper instructions to the determination of the jury, based on proper testimony, and the jury have no arbitrary discretion, though among other proper elements may be considered evidence as to the age, probable duration of life, habits of industry, health, and skill of the decedent. Jacksonville Electric Co. v. Bowden, 54 Fla. 461, 45 So. 755 (1908).

75. Arguments of counsel, generally

Value of a human life is not an element of damages and not a proper subject for argument in a wrongful death action. Russell, Inc. v. Trento, App. 3 Dist., 445 So.2d 390 (1984).

Argument of wrongful death plaintiff's counsel containing fallacious statements that he had lived with the case and represented plaintiff and her family for past three years and that he had carried burden of the case for three years in representing the family, with counsel exhibiting emotional breakdown before jury, warranted new trial as the emotion and anguish exhibited was not spontaneous and unthinking but a shrewdly calculated attempt to solicit sympathetic response, which response accorded with plaintiff's unsolicited emotional plea once as she described holding her son until his death, which plea was unresponsive to any questions posed and false in that mother did not see, much less hold, her son after accident. Russell, Inc. v. Trento, App. 3 Dist., 445 So.2d 390 (1984).

Plaintiff's counsel's argument in wife's action for wrongful death of her husband to the effect that jury could resolve question of what amount of money would most reasonably compensate widow for loss of her husband unobjected to, was not improper and did not constitute Golden Rule argument which could cause reversible error. Ward v. Orange Memorial Hospital Ass'n, Inc., App. 4 Dist., 193 So.2d 492 (1966).

76. Instructions--In general

While the trial court's instruction, in wrongful death action, "Where services are rendered gratuitously to the survivor, the defendant is not entitled to reduce the damages and the survivor is entitled to recover at the reasonable value of the lost services" was unnecessary and may have confused the jury, the giving of the instruction was harmless error. Smyer v. Gaines, App. 1 Dist., 332 So.2d 655 (1976).

In husband's action for wrongful death of wife, where declaration contained no allegation of special damages, charge authorizing jury to add the reasonable funeral and burial expenses caused husband to any other damages which jury might award was error, but error was curable by remittitur. City of Coral Gables v. Neill, 133 Fla. 4, 182 So. 432 (1938).

Instruction on damages for death not directing jury to consider, along with mortality tables, all other evidence bearing upon life expectancy, was erroneous. Florida East Coast Ry. Co. v. Young, 104 Fla. 541, 140 So. 467 (1932).

77. ---- Net accumulations, instructions

No specific testimony on issue of a decedent's loss of net accumulations is required to support an instruction on or an award for the lost accumulations in a wrongful death action. Marks v. Delcastillo, App. 3 Dist., 386 So.2d 1259 (1980), review denied 397 So.2d 778.

78. ---- Dependency, instructions

In a suit by an administrator for negligence resulting in death, a charge that if deceased left a minor sister without property, whom he had supported, and whom it could be reasonably expected he would continue to support, she could sue therefor, and such right would deprive an administrator of any right to sue, but if deceased had a minor sister without property, and he had not supported her, or if he had she had no reasonable expectation of a continuation of the support, plaintiff could sue as administrator, is proper, where there was evidence that deceased minor was living with his father and had contributed regularly to the support of his minor sister and his mother. Louisville & N.R. Co. v. Jones, 50 Fla. 225, 39 So. 485 (1905).

79. ---- Loss of probable prospective estate, instructions

In survivorship action, trial court's jury instruction on loss of prospective estate as element of plaintiff's damages was invited error which could not be raised for first time on appellate review, in view of fact that such element of damages was pled by plaintiff and tried without objection by defendant. Bould v. Touchette, 349 So.2d 1181 (1977), on remand 369 So.2d 451.

Error in admitting, over objections of minor plaintiffs, evidence of Veterans Administration and Social Security benefits received by plaintiffs after death of their father and failure to charge jury that they were not to consider those benefits in reduction of verdict for wrongful death would be presumed to have been prejudicial to plaintiffs. O'Neal v. Ray, App. 1 Dist., 213 So.2d 1 (1968).

Instructions that damages for wrongful death should be fixed by determining amount decedent would have probably accumulated from her probable future earnings and saved during her life expectancy was proper. Smith v. Lassing, App. 4 Dist., 189 So.2d 244 (1966), certiorari denied 195 So.2d 567.

In action by widow individually and as administratrix on two counts for wrongful death of husband, instructions, which did not make it clear that if jury allowed loss of prospective estate of deceased on administratrix' claim they could not allow it on widow's claim, were erroneous. Dobbs v. Griffith, 70 So.2d 317 (1954).

Instruction on damages for death was defective because not charging that deceased's earning capacity for life expectancy period should be reduced to its present value. Florida East Coast Ry. Co. v. Young, 104 Fla. 541, 140 So. 467 (1932).

79.5. ---- Punitive damages, instructions

Instructions on punitive damages invaded the province of the jury by characterizing insurer's conduct as so gross and flagrant as to show a reckless disregard of human life or the safety of persons exposed to the effects of its conduct and an entire lack of care such that the insurer must have wantonly and recklessly disregarded the safety and welfare of the public; even though a default judgment on liability for punitive damages was entered against the insurer, the court did not instruct the jury that it had the discretion to decline to assess punitive damages or to award only a nominal amount. Humana Health Ins. Co. of Florida, Inc. v. Chipps, App. 4 Dist., 802 So.2d 492 (2001).

80. Verdict, generally

In order to include a nonparty on the verdict form pursuant to Fabre, defendant in negligence action has the burden of presenting evidence at trial that the nonparty's fault contributed to the accident or injury. Jackson County Hosp. Corp. v. Aldrich, App. 1 Dist., 835 So.2d 318 (2002), rehearing denied.

There is no inherent or per se error in single verdict in wrongful death action involving death of father awarding same amount to different children. Alamo Rent-A-Car, Inc. v. Clay, App. 3 Dist., 586 So.2d 394 (1991).

Where amount for medical and general expenses and property damage was completely omitted from original verdict and from conformed verdict entered by trial judge and there was no indication as to what portion of past damages were awarded for conscious pain and suffering of decedent as result of injuries, trial judge's entering judgment for widow in wrongful death case in amount of combined total of original verdicts and awarding zero dollars in survival action did not correct errors in verdicts and causes should be returned for reconsideration by the jury on question of damages only. Atlantic Coast Line R. Co. v. Turpak, App. 2 Dist., 225 So.2d 340 (1969).

Record established that damages from wrongful death of husband exceeded sum of $1,500 awarded and it was presumed that verdict was result of mistake, misapprehension, oversight or misconduct such as passion, prejudice or partiality on part of jury. Duquette v. Hindman, App. 1 Dist., 152 So.2d 789 (1963).

Verdict in death action cannot be predicated on conjecture or speculation, conform to mathematical precision, or be controlled exclusively by calculations based on life expectancies. Cudahy Packing Co. v. Ellis, 105 Fla. 186, 140 So. 918 (1932).

81. Remittitur or additur, generally

Remittitur of excessive net accumulations damages award was ordered in wrongful death action to permit trial court to offer highest possible damage award allowable under evidence or, absent plaintiff's acceptance, for new trial for damages. Tobias v. Osorio, App. 4 Dist., 681 So.2d 905 (1996).

Trial court's remittitur of wrongful death award was improper where based on double reduction of plaintiff's expert witness' lowest appraisal of what the net accumulation of deceased's estate would have been if she had lived out her natural life expectancy; since figures used by expert in his testimony were already reduced to the present dollars and represented what real purchasing power for net accumulation of estate would likely have been if inflation and investment increase were removed, the trial court should not have reduced such figures a second time. Griesemer v. Prathers, Inc., App. 2 Dist., 413 So.2d 68 (1982).

Where trial court, in wrongful death suit by father of pedestrian struck by van, found that it erroneously permitted evidence to be submitted to jury, affecting both issue of liability and amount of damages, so that there were issues as to negligence of defendant driver and others as well as a charge of comparative negligence on the part of the deceased pedestrian, order of remittitur was improper, rather, retrial on all issues was appropriate. Marson v. Dadeland Rent-A-Car, Inc., App. 3 Dist., 408 So.2d 245 (1981).

82. New trial

Order granting a new trial in wrongful death action as to damages only on claim of decedent's estate and on claims of the other beneficiaries would be affirmed notwithstanding contention that trial judge sat as a seventh juror. Queen v. Florida Farm Bureau Ins. Co., App. 5 Dist., 425 So.2d 606 (1982).

New trial on both liability and damages was proper in wrongful death action where jury was confused about whether they had to award damages to the estate, decedent's mother and her father or whether an award only to the estate would be legally sufficient and evidence supported maximum potential recovery on behalf of the estate of $8,000 while jury awarded $20,000. Nowicki v. School Bd. of Broward County, App. 4 Dist., 400 So.2d 199 (1981).

Where there was ground for suspicion that inadequate award stemmed from jury's lack of conviction as to liability, ends of justice under law were best served by awarding new trial on question of liability as well as damages. Duquette v. Hindman, App. 1 Dist., 152 So.2d 789 (1963).

83. Set off

Wrongful Death Act creates independent cause of action in statutory beneficiaries, and any recovery obtained therein cannot properly be set off by decedent's settlement of personal injury claim against separate tort-feasor. Rimer v. Safecare Health Corp., App. 4 Dist., 591 So.2d 232 (1991), approved 620 So.2d 161.

84. Settlement

The personal representative of estate has statutory responsibility to settle a wrongful death action. Thompson v. Hodson, App. 1 Dist., 825 So.2d 941 (2002), review denied 835 So.2d 266.

Where the personal representative receives a nonspecific settlement offer in a wrongful death action, she is obligated to apportion the proceeds between the estate and the survivors in a reasonable and equitable manner. Thompson v. Hodson, App. 1 Dist., 825 So.2d 941 (2002), review denied 835 So.2d 266.

Doctors' offer of judgment served on personal representative of estate as settlement of wrongful death action, which offered a lump-sum, non-specific settlement of $25,000 to settle the claim, was a valid proposal for settlement, although proposal did not specify how proceeds should be apportioned among the estate and the survivors; personal representative was only plaintiff bringing statutory wrongful death claim, and personal representative had the statutory authority to accept the offer and then had the obligation to apportion it equitably or to seek court approval of an apportionment. Thompson v. Hodson, App. 1 Dist., 825 So.2d 941 (2002), review denied 835 So.2d 266.

Statute governing personal representative of estate's payment of attorney fees and expenses in wrongful death action does not provide the personal representative authority to satisfy a judgment for fees and costs from settlement proceeds he holds for the survivors; personal representative, as the statutorily-appointed party plaintiff in wrongful death case, is merely a conduit for settlement proceeds, and he is duty-bound to apportion the proceeds equitably among the estate and the survivors. Thompson v. Hodson, App. 1 Dist., 825 So.2d 941 (2002), review denied 835 So.2d 266.

Neurologist who successfully defended estate's wrongful death action was not entitled to satisfaction of judgment for attorney fees from proceeds held by personal representative in settlement of wrongful death action against another doctor, even though settlement proceeds had not yet been disbursed; estate had no right to proceeds received in settlement for claim that was brought by estate against doctor on behalf of deceased minor child's parents, not on behalf of estate. Thompson v. Hodson, App. 1 Dist., 825 So.2d 941 (2002), review denied 835 So.2d 266.

If the personal representative's apportionment of wrongful death settlement proceeds is reasonable and equitable, the apportionment will be upheld even when it allots no funds, or funds insufficient to pay creditors' claims, to the estate. Thompson v. Hodson, App. 1 Dist., 825 So.2d 941 (2002), review denied 835 So.2d 266.

Where personal representative receives nonspecific settlement offer in wrongful death action, personal representative is obligated to proportion proceeds between estate and survivors in reasonable and equitable manner. Continental Nat. Bank v. Brill, App. 3 Dist., 636 So.2d 782 (1994).

85. Review--In general

It is not the function of reviewing court to substitute its judgment for the jury's determination of a wrongful death case. Industrial Waste Service, Inc. v. Henderson, App. 3 Dist., 305 So.2d 42 (1974).

Record established that damages from wrongful death of husband exceeded sum of $1,500 awarded and it was presumed that verdict was result of mistake, misapprehension, oversight or misconduct such as passion, prejudice or partiality on part of jury. Duquette v. Hindman, App. 1 Dist., 152 So.2d 789 (1963).

86. ---- Facts not reviewable, review

In action for wrongful death of motorist, the amount of damages sustained was a question of fact not reviewable on appeal, notwithstanding that the verdict may have been generous, where there was evidence as to the damages. Herzig v. Swift & Co., 1946, 154 F.2d 64, certiorari denied 66 S.Ct. 1122, 328 U.S. 849, 90 L.Ed. 1622.

Whether $3,500 for death of 82-year-old man in good health, who had a life expectancy of six or seven years, had accumulated about $3,000 and had made more than $2,000 farming during year before death, was excessive, was for District Court, and was not subject to review. Swift & Co. v. Ellinor, 1939, 101 F.2d 131.

Party cannot complain on appeal of adoption of a rule of damages in accordance with theory upon which he tried cause, although it was the wrong rule. Bould v. Touchette, 349 So.2d 1181 (1977), on remand 369 So.2d 451.

87. ---- Waiver, review

Defendant's failure to raise claim that it was inconsistent to award same damages to children of different ages resulted in waiver of defendant's ability to make argument on appeal. Alamo Rent-A-Car, Inc. v. Clay, App. 3 Dist., 586 So.2d 394 (1991).

88. ---- Amendment of record, review

Where declaration failed to state a cause of action for wrongful death in favor of minor children of deceased because declaration failed to show that deceased had not remarried after his divorce from plaintiffs' mother, plaintiffs were permitted to amend record to show that deceased had not remarried. Southern Liquor Distributors v. Kaiser, 150 Fla. 52, 7 So.2d 600 (1942).

II. CHILD'S DEATH

<Subdivision Index>

In general 141

Additur or remittitur 164

Adult child, amount of damages 156

Amount of damages 153-156

Amount of damages - In general 153

Amount of damages - Adult child 156

Amount of damages - Excessive award 154

Amount of damages - Minor child 155.5

Amount of damages - Punitive damages 155

Arguments of counsel 161

Contributory negligence 157

Damages

Damages - Amount 153-156

Damages - Elements 147-151

Divorced or separated parents 145

Elements of damages 147-151

Elements of damages - In general 147

Elements of damages - Life expectancy of decedent and survivors 150

Elements of damages - Loss of probable prospective estate 148

Elements of damages - Loss of services and support 149

Elements of damages - Mental pain and suffering 151

Equal protection, illegitimate child's death 144

Evidence 158, 159

Evidence - In general 158

Evidence - Relevance 159

Excessive award, amount of damages 154

Fact questions 160

Illegitimate child's death 143, 144

Illegitimate child's death - In general 143

Illegitimate child's death - Equal protection 144

Instructions 162

Insurance policy provisions 146

Life expectancy of decedent and survivors, elements of damages 150

Loss of probable prospective estate, elements of damages 148

Loss of services and support, elements of damages 149

Mental pain and suffering, elements of damages 151

Minor child, amount of damages, child's death 155.5

Psychiatric expenses 152

Punitive damages, amount of damages 155

Purpose of statute 142

Relevance, evidence 159

Remittitur or additur 164

Review 165

Separated or divorced parents 145

Verdict 163

141. In general, child's death

When asked to apportion the proceeds of a wrongful death settlement, a court must look to the wrongful death statute to identify both the survivors and recoverable damages. Hess v. Hess, App. 4 Dist., 758 So.2d 1203 (2000).

Amount of damages in action for wrongful death is for discretion of jury. Atlas Properties, Inc. v. Didich, App. 3 Dist., 213 So.2d 278 (1968), certiorari discharged 226 So.2d 684.

Reasonable damages, governed by facts in particular case, are recoverable by parent for minor child's wrongful death. Florida Dairies Co. v. Rogers, 119 Fla. 451, 161 So. 85 (1935).

Mere legislative fiat could not authorize father to recover damages, for death of minor daughter, which in his personal or representative capacity he never sustained. Fuller v. Darnell, 100 Fla. 773, 129 So. 915 (1930).

142. Purpose of statute, child's death

Former § 768.03 was enacted in order to give surviving parents some relief for wrongful death of minor children, even though parents were not dependent upon child for support. Guarniere v. Henderson, App. 1 Dist., 171 So.2d 617 (1965).

The purpose of antecedent statute providing for damages to parent for wrongful death of child was to authorize suits for the recovery of damages for the death of minors caused by the wrongful acts and negligence of others, and the "loss of services" sustained by a parent in the death of a minor child is the services that such parent would be entitled to between the death and majority of such minor. Nolan v. Moore, 81 Fla. 594, 81 Fla. 600, 88 So. 601 (1920).

143. Illegitimate child's death--In general

Father of an illegitimate child may maintain an action to recover damages for the wrongful death of his illegitimate child. Wilcox v. Jones, App. 4 Dist., 346 So.2d 1037 (1977), certiorari denied 357 So.2d 188.

144. ---- Equal protection, illegitimate child's death

To recognize the right of a natural mother of an illegitimate child to maintain a wrongful death action but to refuse to recognize the corresponding right of the natural father would violate the equal protection clauses of the State and Federal Constitutions. Wilcox v. Jones, App. 4 Dist., 346 So.2d 1037 (1977), certiorari denied 357 So.2d 188.

145. Divorced or separated parents, child's death

Allegations in former husband's petition for dissolution that he should have custody of surviving child because former wife was "mentally unstable" and not fit and proper mother was relevant in former wife's medical malpractice action involving death of other child where comparative negligence was raised as a defense. Mapps v. Wolff, App. 4 Dist., 561 So.2d 397 (1990).

It was appropriate for medical malpractice defendants to cross-examine plaintiff's former husband regarding allegations in his dissolution of marriage petition that he should have custody of surviving child because plaintiff was "mentally unstable" and not a fit and proper mother since signed petition was a prior inconsistent statement of former husband and on direct examination former husband had testified that plaintiff was a good mother to deceased child. Mapps v. Wolff, App. 4 Dist., 561 So.2d 397 (1990).

In action for wrongful death by father who sued individually and as father of his deceased minor son whose death father alleged was caused by defendants' negligence and caused both him and child's mother "intense mental pain and anguish," evidence that father had some time prior to accident left his wife and children for the abode and companionship of another woman and that he had provided no way for his wife and children to contact him, even in face of an emergency, was properly admitted over father's objection. Collins v. Florida Towing Corp., App. 1 Dist., 262 So.2d 459 (1972).

Deceased minor's father owed divorced mother no duty and sustained no legal loss for mother's mental pain and suffering that could be redressed in damages. Fuller v. Darnell, 100 Fla. 773, 129 So. 915 (1930).

146. Insurance policy provisions, child's death

Automobile liability insurers which paid policy limits to father, who had obtained judgment against named insured both in father's capacity as administrator of estate of his deceased son and in his capacity as survivor under wrongful death of minor statute, had satisfied in full all obligations due under policies regardless of whether insurers had paid judgment for secondary claim of father rather than judgment for primary claim for injury to deceased or his estate. Skroh v. Travelers Ins. Co., App. 1 Dist., 227 So.2d 328 (1969).

Under provision of standard automobile liability policy limiting liability to each person for bodily injuries, the estate of a person dying as result of such injuries as well as a parent or survivor are not each entitled to recover maximum limit of liability by action under wrongful death of a minor statute. Skroh v. Travelers Ins. Co., App. 1 Dist., 227 So.2d 328 (1969).

147. Elements of damages, child's death--In general

In absence of proof that a deceased child had some extraordinary income- producing attributes, it must be assumed, for purposes of assessing parents' damages for wrongful death of the child, that cost of maintaining the child to maturity would exceed value of any services which might have been rendered by the child to the parents. Gresham v. Courson, App. 1 Dist., 177 So.2d 33 (1965).

There are two elements of damage recoverable by parents for wrongful death of their infant child, the father's loss of services of his child until the child would have become 21 years of age, and value of the parents' mental pain and anguish occasioned by reason of death of their child. Gresham v. Courson, App. 1 Dist., 177 So.2d 33 (1965).

In suit for minor son's death, damages may include compensation for loss of son's services during his minority and damages for surviving parents' mental pain and suffering. Steele v. Miami Transit Co., 160 Fla. 362, 34 So.2d 530 (1948).

Mental pain and suffering of the parents directly, naturally and necessarily result from the wrongful death of their minor child, and the right of the father to the minor child's services being infringed by the act of the defendant, entitled the father to recover at least nominal if not substantial damages for the loss of such services. Seaboard Air Line Ry. v. Moseley, 60 Fla. 186, 53 So. 718 (1910).

148. ---- Loss of probable prospective estate, elements of damages, child's death

Where decedent at time of his death was twenty years old, unmarried, without dependents, and had, following his graduation from high school, except for short period, remained with, and joined, his father in farming operations on father's farm, award of $5,000 would be made to administrator of decedent's estate for decedent's prospective earnings and wages. English v. U.S., N.D.Fla.1953, 115 F.Supp. 529.

In light of uncontradicted evidence that five-year-old boy was a bright, healthy and attractive child who was being raised in a wholesome family environment and that his fortunes were on the ascendancy, together with evidence as to average earnings in his father's trade and opinion of economics professor as to estate which child would have accumulated had he lived out his natural life, administratrix, seeking to recover for loss of child's prospective estate, was entitled to damages in some amount, even though perhaps nominal, and award of "zero" damages was inappropriate as a matter of law. Perez v. American Mut. Liability Ins. Co., App. 2 Dist., 288 So.2d 541 (1973).

In action by administratrix to recover for loss of prospective estate of five- year-old boy, evidence as to limited estate accumulated by boy's father, who was killed in the same accident, was properly admissible despite contention that it was not sufficiently related to issue as to how the boy would have fared in later life. Perez v. American Mut. Liability Ins. Co., App. 2 Dist., 288 So.2d 541 (1973).

Award of $512 in funeral costs for deceased minor son of father who brought survival action as administrator of estate of his minor son but who offered no evidence that would have mandated jury to find that minor would have become a producer rather than a consumer and would have accumulated any estate was not insufficient. Collins v. Florida Towing Corp., App. 1 Dist., 262 So.2d 459 (1972).

Where deceased minor leaves no husband or wife, no minor child, and no person dependent on him or her for support, administrator may maintain action to recover such damages as minor's estate may have sustained by reason of wrongful death, and proper measure of damages is present worth of minor's life to estimated prospective estate that he or she probably would have earned and saved after becoming of age and during life expectancy to be left at death. Burch v. Gilbert, App. 1 Dist., 148 So.2d 289 (1963).

Damages recoverable in action by administrator for loss of child's probable prospective estate should be confined to present cash value of such prospective property losses as are reasonably warranted by evidence. Miami Dairy Farms v. Tinsley, 115 Fla. 650, 155 So. 850 (1934).

In action by administrator for wrongful death of minor child, present value of probable prospective estate recoverable should be determined from evidence as to matters affecting life expectancy and earning and saving capacity of child. Miami Dairy Farms v. Tinsley, 115 Fla. 650, 155 So. 850 (1934).

Present value of probable prospective estate of ten-year-old child recoverable by administrator for its wrongful death is ordinarily relatively small. Miami Dairy Farms v. Tinsley, 115 Fla. 650, 155 So. 850 (1934).

149. ---- Loss of services and support, elements of damages, child's death

Parents' claim for lost support and services of son would be stricken as improper under Florida Wrongful Death Act, absent allegation that son had any extraordinary income producing attributes. Brown v. Seebach, S.D.Fla.1991, 763 F.Supp. 574.

Award to parents for wrongful death of their minor child had to be limited to mental pain and suffering, with no recovery for lost support and services, considering that in case of death of a young child, costs of providing for child until maturity are far greater than value of any services to be rendered by the child. Williams v. U.S., N.D.Fla.1988, 681 F.Supp. 763.

Award of $5,000 to parents of 19 year old sailor killed while on leave by negligence of United States as compensation for loss of services until majority and for pain and mental suffering of parents, was fair, just, and reasonable. Brown v. U.S., 1951, 99 F.Supp. 685.

Surviving parent may recover value of deceased minor's services, reduced to present value. Rice v. Brown, App. 2 Dist., 645 So.2d 1020 (1994), rehearing denied, review denied 658 So.2d 992.

When surviving parent sues for loss of services, recovery is limited to value of those services from date of child's death to date on which child would have reached majority. Rice v. Brown, App. 2 Dist., 645 So.2d 1020 (1994), rehearing denied, review denied 658 So.2d 992.

Material consideration in evaluation of lost services is replacement value of those services to survivor. Rice v. Brown, App. 2 Dist., 645 So.2d 1020 (1994), rehearing denied, review denied 658 So.2d 992.

Evidence did not support award of $2.5 million to father for loss of daughters' services as result of automobile accident; daughters would have reached majority within two and five years, respectively, and father submitted no proof relating to cost of replacing services that daughters had provided to their mother. Rice v. Brown, App. 2 Dist., 645 So.2d 1020 (1994), rehearing denied, review denied 658 So.2d 992.

When parents of deceased child sue for lost services, recovery is limited to value of services to which parents would have been entitled between date of child's death and date he would have reached majority; however, such limitation does not apply where parents sue for mental pain and suffering. Roberts v. Holloway, App. 4 Dist., 581 So.2d 619 (1991).

Evidence in action by mother to recover damages suffered by her as result of wrongful death of minor son supported finding that son had made material contributions to mother's support and that she depended on him for at least part of funds necessary for her maintenance and support. Tuten v. Black, App. 1 Dist., 251 So.2d 884 (1971).

Even though minor son had for several years prior to his wrongful death been out of school and away from home, award of $1,000 for loss of service and mental pain and suffering of parents was inadequate and denial of new trial was error. Steele v. Miami Transit Co., 160 Fla. 362, 34 So.2d 530 (1948).

In suit for death of minor child, damages may include not only compensation for loss of services of the deceased during his minority but also damages for mental pain and suffering of the parent or parents, if either of them survive the minor. Steele v. Miami Transit Co., 160 Fla. 362, 34 So.2d 530 (1948).

Damages recoverable in action by parent for loss of services of minor child should be confined to present cash value of such prospective property losses as are reasonably warranted by evidence. Miami Dairy Farms v. Tinsley, 115 Fla. 650, 155 So. 850 (1934).

In action by father for death of minor child, damage recoverable is reasonable recompense for parental pain and suffering and value at date of trial of fair compensation for services which in reasonable probability child would have rendered to parents from time of wrongful death until child would have become 21 years of age. Miami Dairy Farms v. Tinsley, 115 Fla. 650, 155 So. 850 (1934).

The "loss of services" sustained by a parent in the wrongful death of a minor child is the value of such services that such parent would be entitled to between the death and the majority of such minor. Meeks v. Johnston, 85 Fla. 248, 95 So. 670 (1923).

Parent's "loss of services" between the death and majority of child are recoverable. Meeks v. Johnston, 85 Fla. 248, 95 So. 670 (1923).

In an action by a father for wrongful death of his minor child, the father's right to the minor child's services being infringed by defendant's act, he is entitled to recover at least nominal, if not substantial, damages for loss of such services. Seaboard Air Line Ry. v. Moseley, 60 Fla. 186, 53 So. 718 (1910).

In an action by a father for wrongful death of his minor child the father's right to the minor child's services being infringed by defendant's act, he was entitled to recover at least nominal, if not substantial, damages for loss of such services. Seaboard Air Line Ry. v. Moseley, 60 Fla. 186, 53 So. 718 (1910).

150. ---- Life expectancy of decedent and survivors, elements of damages, child's death

In wrongful death action, joint life expectancies of parents and deceased minor child may be considered by jury in determining amount to be awarded to parents for mental pain and suffering. Gross Builders, Inc. v. Powell, App. 2 Dist., 441 So.2d 1142 (1983).

In an action for the wrongful death of a minor, a verdict of $30,000 for mental pain and suffering alone held excessive, where the mother, the only person entitled to sue, could live but a few years. Florida East Coast Ry. Co. v. Jackson, 65 Fla. 393, 62 So. 210 (1913).

In estimating the damages sustained by the mother for the wrongful death of her son, the jury should take into consideration the probable duration of the joint lives of herself and the deceased son. Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894).

151. ---- Mental pain and suffering, elements of damages, child's death

Award of $900,000 to each parent was a fair and just award for their mental pain and suffering caused by the death of their minor child, based on analysis of similar Florida cases. Williams v. U.S., N.D.Fla.1988, 681 F.Supp. 763.

Mental pain and suffering allegedly sustained by 16-year-old female when she witnessed fatal burns received by her brother in a crash of an air force bomber near her home were not recoverable against United States under law of Florida inasmuch as crash did not cause physical impact to plaintiff, notwithstanding that she did burn her hand in aiding her brother, where event was too remote in point of time, place and sequence to be considered a direct and, thus, a proximate result of crash. Ellington v. U. S., M.D.Fla.1975, 404 F.Supp. 1165.

Even if burn which plaintiff sustained to her hand in aiding her brother after crash of an air force bomber near their home was sufficient to satisfy impact requirement under law of Florida, plaintiff was nevertheless precluded from recovering for alleged mental anguish sustained as result of witnessing her brother's injuries, where plaintiff's distress was not caused by her injury, but that of her brother. Ellington v. U. S., M.D.Fla.1975, 404 F.Supp. 1165.

In view of provision of Federal Torts Claims Act, 28 U.S.C.A. § 1346, that law of place where act or omission occurred is applicable to actions thereunder, and former wrongful death statute provision, parents of sailor drowned while on leave at pool maintained by United States at naval station located in Florida were entitled to recover damages for mental pain and suffering by parents and were not restricted to nominal damages. Brown v. U.S., 1951, 99 F.Supp. 685.

Damages award of $50,000 for mother's mental pain and suffering caused by child's death in motor vehicle accident in which child's father was driving was grossly insufficient and was explainable only as result of prejudicial impact of father's counsel's repeated references to father's remorse and inference that father would bear burden of any damages award even though he was insured. Ballard v. American Land Cruisers, Inc., App. 3 Dist., 537 So.2d 1018 (1988), review denied 545 So.2d 1366.

1972 Wrongful Death Act permits recovery of lost support and services in favor of deceased child's parent up to date of death of surviving parent, but does not permit recovery for mental pain and suffering of that parent during same period of time where parent dies prior to final judgment. Florida Clarklift, Inc. v. Reutimann, App. 2 Dist., 323 So.2d 640 (1975), certiorari denied 336 So.2d 1181, certiorari denied 341 So.2d 293.

A parent's mental change or illness, brought on as a result of the loss of his child, may be considered as an element or part of "mental pain and suffering" of the parent as a basis for allowance of damages provision of this section authorizing an action to recover damages for wrongful death of a minor child. Coast Cities Coaches, Inc. v. Donat, App. 3 Dist., 106 So.2d 593 (1958).

In action for wrongful death of a father's six year old child, resultant mental incompetence of the father was a proper element for consideration in allowing damages for mental pain and suffering of the child's parents. Coast Cities Coaches, Inc. v. Donat, App. 3 Dist., 106 So.2d 593 (1958).

Damages for parents' mental pain and suffering because of minor child's wrongful death must be authorized by statute, and generally will not be awarded when such suffering was not induced by, mixed with, or traceable to physical injury. Florida Dairies Co. v. Rogers, 119 Fla. 451, 161 So. 85 (1935).

Damages for parents' mental pain and suffering because of minor child's wrongful death are not generally regarded as punitive, but as more in nature of compensatory damages. Florida Dairies Co. v. Rogers, 119 Fla. 451, 161 So. 85 (1935).

Law measures parents' compensation for mental pain and suffering caused by minor child's wrongful death in money only. Florida Dairies Co. v. Rogers, 119 Fla. 451, 161 So. 85 (1935).

Amount of damages for parents' mental pain and suffering, caused by minor child's wrongful death, rests in jury's discretion. Florida Dairies Co. v. Rogers, 119 Fla. 451, 161 So. 85 (1935).

Damages allowed parents for mental pain and suffering caused by minor child's wrongful death must bear reasonable relation to facts, parties' status, amount of compensatory damages, and philosophy and general trend of decisions, and cannot be predicated on restitution. Florida Dairies Co. v. Rogers, 119 Fla. 451, 161 So. 85 (1935).

Father, in action for minor child's death, can recover, inter alia, reasonable recompense for parental pain and suffering. Miami Dairy Farms v. Tinsley, 115 Fla. 164, 155 So. 852 (1934).

Damages awarded parents for mental pain and suffering for wrongful death of minor child should be reasonable under conditions and circumstances of case. Miami Dairy Farms v. Tinsley, 115 Fla. 650, 155 So. 850 (1934).

152. Psychiatric expenses, child's death

Expenses incurred by parent for psychiatric treatment made necessary by trauma caused by death of his child, as well as wages lost by parent as result of same circumstances, were not recoverable under this section. Wade v. Alamo Rent- A-Car, Inc., App. 4 Dist., 510 So.2d 642 (1987).

153. Amount of damages, child's death--In general

Parents who were awarded $872,915.12 in economic damages in medical malpractice action arising from death of child were entitled to the amount remaining after subtracting the $425,824.42 which had been paid by insurance providers for medical services, even though insurance companies and medical providers had reached agreement that neither would seek any further reimbursement, and thus, neither parents nor child's estate would have obligation for medical expenses. Horton v. Channing, App. 1 Dist., 698 So.2d 865 (1997), rehearing denied.

Payments made by child's insurance providers for medical treatment constituted "damages" within meaning of wrongful death statute, despite fact that neither parents nor estate had incurred any obligation with respect to those expenses. Horton v. Channing, App. 1 Dist., 698 So.2d 865 (1997), rehearing denied.

Evidence of damages in wrongful death action was not so clear, obvious and indisputable that trial court could find that jury verdict of $1,200,000 for wrongful death of ten-year-old girl, $800,000 for wrongful death of three-year- old girl, and $500,000 verdict for one child's father was against manifest weight of evidence necessitating new trial. Hawk v. Seaboard System R.R., Inc., App. 2 Dist., 547 So.2d 669 (1989), review dismissed 549 So.2d 1014.

One million dollars' damages, awarded to each of parents of child drowned in moat on amusement theme park premises, for past and future pain and suffering were not excessive in light of evidence that parents suffered nearly complete personality changes and that their grief was overwhelming, genuine, and crushing. Walt Disney World Co. v. Goode, App. 5 Dist., 501 So.2d 622 (1986), review dismissed 520 So.2d 270.

Total award of $900,000 to 27-year-old mother and father for death of their six-year-old daughter who was killed when struck by county garbage truck and who was described by teachers, relatives and friends as bright, alert, beautiful, obedient, happy and loving was not excessive. Metropolitan Dade County v. Dillon, App. 3 Dist., 305 So.2d 36 (1974), certiorari denied 317 So.2d 442.

Wrongful death award of $100,000 for loss of prospective estate and medical treatment, bodily injury, and pain and suffering of 20-year-old decedent who was personable young man in good health, an average C student in school, marine corps reservist, and junior college student hopeful of becoming an attorney was adequately supported by evidence. McLeod v. Young, App. 4 Dist., 257 So.2d 605 (1972), certiorari denied 263 So.2d 230.

154. ---- Excessive award, amount of damages, child's death

Award of $1.56 million for death of 13-year-old child was result of passion and emotion, in view of repetitive, highly emotional testimony on mother's inability to cope with son's death and impermissible "golden rule" arguments by counsel in closing. Harbor Ins. Co. v. Miller, App. 3 Dist., 487 So.2d 46 (1986), review denied 496 So.2d 143.

Award of $20,000 to administrator for death of eight year old girl was excessive, where sole evidence relating to girl's prospects of accumulating an estate was testimony of mother that girl had attractive physical appearance. Burch v. Gilbert, App. 1 Dist., 148 So.2d 289 (1963).

Verdict for $20,000 for pain and suffering of five year old child who died some months after fatal injuries were sustained was excessive where child had been either unconscious or in semi-comatose condition for entire time. Hooper Const. Co. v. Drake, 73 So.2d 279 (1954).

155. ---- Punitive damages, amount of damages, child's death

Evidence sufficiently supported jury's award of $35,000 punitive damages to father of girl who was drowned in defendant corporation's swimming pool. Atlas Properties, Inc. v. Didich, App. 3 Dist., 213 So.2d 278 (1968), certiorari discharged 226 So.2d 684.

155.5. ---- Minor child, amount of damages, child's death

Provision of Wrongful Death Act defining "minor children" as children under 25 years of age, notwithstanding age of majority, included all children under age of 25, regardless of marital status; therefore, mother had claim for wrongful death of her 23-year-old married son, pursuant to provision allowing parents of deceased minor child to recover for mental pain and suffering from date of injury. Guadalupe v. Peterson, App. 2 Dist., 779 So.2d 494 (2000).

156. ---- Adult child, amount of damages, child's death

Even if surviving parent of deceased adult does not allege a claim for loss of support, court must determine whether support is recoverable before making award for loss of net accumulations. Innocent v. Central Truck Lines, Inc., S.D.Fla.1988, 680 F.Supp. 1523.

Decedent's mother was entitled to recover for loss of net accumulations in wrongful death action only if she did not recover for loss of support; she could not recover both. Innocent v. Central Truck Lines, Inc., S.D.Fla.1988, 680 F.Supp. 1523.

Parents generally have no common law or statutory right to recover damages for pain and suffering, grief, or emotional loss in the event that their married, adult child is the victim of a wrongful death. In re Guardianship of Schiavo, App. 2 Dist., 792 So.2d 551 (2001).

Parents of adult child who died in Florida hospital did not have meaningful claim against hospital under federal Emergency Medical Treatment and Labor Act (EMTALA), even if hospital violated statute, in view of Florida statute precluding parents of adult patient from recovering medical malpractice damages. Diaz v. CCHC-Golden Glades, Ltd., App. 3 Dist., 696 So.2d 1346 (1997), review denied 703 So.2d 475, certiorari denied 118 S.Ct. 1797, 523 U.S. 1119, 140 L.Ed.2d 938.

Awards of $25,000 to mother and nothing to father for wrongful death of their daughter were grossly inadequate, in view of evidence presented and arguments of counsel. Cardona v. Gutierrez, App. 4 Dist., 562 So.2d 766 (1990), review denied 576 So.2d 287.

157. Contributory negligence, child's death

Although jury charged deceased mother with 35 percent negligence in contributing to death of her children, wrongful death awards in favor of father as survivor of his children would not be reduced by percentage of negligence attributed to mother. Singletary v. National R.R. Passenger Corp., App. 2 Dist., 376 So.2d 1191 (1979).

158. Evidence, child's death--In general

Any error in failing to permit evidence of deceased child's possible decreased life expectancy due to meningitis, for purpose of calculating parents' mental pain and suffering damages, did not warrant reversal absent proffer of evidence of what child's decreased life expectancy was. Roberts v. Holloway, App. 4 Dist., 581 So.2d 619 (1991).

Court did not err in wrongful death action in admitting testimony of psychiatrist concerning the possibility of suicide by six-year-old victim's mother, resulting from diagnosed condition of depressive neurosis following traumatic loss of her daughter. Metropolitan Dade County v. Dillon, App. 3 Dist., 305 So.2d 36 (1974), certiorari denied 317 So.2d 442.

Among the considerations toward which evidence is admissible in action to recover for the loss of deceased child's prospective estate are the standard of living maintained to which the child was likely to become accustomed and aspire, and moral values and stability apparent in his home environment, the character training manifestly given him in other respects, and the habits and diligence of his parents or guardians in pursuing their own ambitions toward affluence. Perez v. American Mut. Liability Ins. Co., App. 2 Dist., 288 So.2d 541 (1973).

159. ---- Relevance, evidence, child's death

In action in which father sought to recover for wrongful death of son and to recover as administrator of son's estate, in which two photographs showing accident scene and body of son were admitted into evidence and in which father was allowed to describe scene and condition of son's body at time father viewed it at morgue, exclusion of photographs taken of son at morgue was not an abuse of discretion, notwithstanding contention that such photographs were relevant to father's mental suffering. Walker v. City of Miami, App. 3 Dist., 337 So.2d 1002 (1976).

Evidence in action for death of plaintiff's minor son that deceased was healthy, bright, boy working for defendant at his first employment when killed, and testimony sufficient to sustain jury's finding of deceased's parents' mental pain and suffering, justified recovery of damages by plaintiff for loss of deceased's services until he would have attained majority, and for such pain and suffering. Tampa Shipbuilding & Engineering Co. v. Adams, 132 Fla. 419, 181 So. 893 (1938).

160. Fact questions, child's death

Summary judgment record created issues of fact as to whether parents of deceased child were dependent on child for support so as to be able to maintain suit arising out of death of child in collision between motor vehicle he was operating and train. Moody v. Seaboard Coast Line R. Co., App. 2 Dist., 287 So.2d 707 (1974).

In administrator's action for death of four-year-old boy who was struck by motorist's vehicle, determining prospective estate of boy who had not yet entered school or performed any services for hire was best left to jurors who heard case and were properly instructed as to the law. Threets v. Hardison, 255 So.2d 267 (1971).

161. Arguments of counsel, child's death

In wrongful death action, defense counsel's arguments concerning benefits and support that decedent's child would derive from living with her aunt and uncle were not invited by aunt and uncle's testimony during closing argument, and were inflammatory and prejudicial to child's claim for loss of services and support of her mother. Cardona v. Gutierrez, App. 4 Dist., 562 So.2d 766 (1990), review denied 576 So.2d 287.

In action in which father sought to recover for wrongful death of son and to recover as administrator of son's estate and in which plaintiff's counsel, in closing argument, urged a liberal verdict because of value of human life and referred to earning capacity of certain persons in professional sports, fact that counsel for defendants responded by referring to amounts paid under workmen's compensation law and an average insurance contract was not reversible error, in view of the latitude allowed in argument and the trial court's instructions that such arguments were not evidence. Walker v. City of Miami, App. 3 Dist., 337 So.2d 1002 (1976).

Where, in action for death of six-year-old girl who was struck by county garbage truck, plaintiff's counsel referred to the attorney for the county, its insurer, and the driver, as the insurance company's lawyer who was seeking to soft-soap the jury and to get out as cheaply as he could following remarks by the defendants' counsel to the effect that the plaintiff's counsel was attempting to turn tragedy into commercial enterprise, plaintiff's counsel's remarks were not of such an inflammatory character as to mandate a new trial. Metropolitan Dade County v. Dillon, App. 3 Dist., 305 So.2d 36 (1974), certiorari denied 317 So.2d 442.

162. Instructions, child's death

In action by father for death of his 12-year-old son, instruction authorizing recovery for loss of services which son would have rendered to both parents during period from death to date when he would have become 21 years of age was error, since only father could recover for loss of services; but error did not require reversal where jury awarded $4,000 for mental pain and suffering for both parents, and for loss of services. Atlantic Peninsular Holding Co. v. Oenbrink, 133 Fla. 325, 182 So. 812 (1938).

In parent's action for death of minor child, failure of charge to include instruction that jury should in assessing damages for mental pain and suffering render verdict only for such pain and suffering as parent was reasonably certain to endure was not error in absence of request for more definite instruction, in view of other charges given. Miami Dairy Farms v. Tinsley, 121 Fla. 774, 164 So. 528 (1935).

Charge, in mother's action for her minor son's death, to consider her loss of son's society and hope for his future life in fixing amount of damages, held fatally defective in failing to instruct jury to reduce damages for future or anticipated injuries to their present value. Florida Dairies Co. v. Rogers, 119 Fla. 451, 161 So. 85 (1935).

Instruction was erroneous as authorizing recovery for death of minor daughter while guest in colliding automobile notwithstanding her contributory negligence. Fuller v. Darnell, 100 Fla. 773, 129 So. 915 (1930).

163. Verdict, child's death

If verdict in action for wrongful death finds support in evidence and is not so excessive as to shock conscience of court, judgment entered on verdict should be affirmed. Atlas Properties, Inc. v. Didich, App. 3 Dist., 213 So.2d 278 (1968), certiorari discharged 226 So.2d 684.

Verdicts assessing damages for wrongful death of minor child are subject to judicial review. Kenan v. Black, 150 Fla. 208, 7 So.2d 462 (1942).

164. Remittitur or additur, child's death

Where trial court, in wrongful death suit by father of pedestrian struck by van, found that it erroneously permitted evidence to be submitted to jury, affecting both issue of liability and amount of damages, so that there were issues as to negligence of defendant driver and others as well as a charge of comparative negligence on the part of the deceased pedestrian, order of remittitur was improper, rather, retrial on all issues was appropriate. Marson v. Dadeland Rent-A-Car, Inc., App. 3 Dist., 408 So.2d 245 (1981).

A remittitur of part of the amount recovered cannot cure a verdict which is contrary to law or not sustained by the evidence as to any issue other than the measure of damages. Marson v. Dadeland Rent-A-Car, Inc., App. 3 Dist., 408 So.2d 245 (1981).

165. Review, child's death

Jury's determination of damages is reviewable by trial judge on the same principles as governed his superintendence of determinations of liability; the record must affirmatively show the impropriety of the verdict or there must be independent determination by trial judge that jury was influenced by considerations outside the record. Laskey v. Smith, 239 So.2d 13 (1970).

West's F. S. A. § 768.21

FL ST § 768.21

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