Filing a Wrongful Death Claim After a Fatal Construction Accident in Florida

Nov 1, 2022 | Construction Accident

Fatal construction accidents are far too common. Each year, hundreds of construction workers die on the job in accidents that could—and should—have been avoided. According to the Occupational Safety and Health Administration (OSHA), construction work has one of the highest death rates in the country, and many deaths in the construction industry result from companies’ failure to follow basic safety rules and procedures.

While workers’ compensation covers most fatal construction accidents in Florida, for grieving families, these benefits aren’t enough. Fatal accidents can leave families facing substantial losses—and they will need to sue to recover these losses in most cases.

When Can You File a Wrongful Death Claim for a Fatal Construction Accident in Florida?

Grieving families can sue following fatal construction accidents on various grounds. Safety failures on all types of construction sites are extremely common, and various other failures can lead to fatal accidents as well. For example, grieving families will frequently be able to file claims based on issues such as:

  • Failure to follow safety protocols on construction sites
  • Failure to provide necessary safety equipment
  • Hiring inexperienced or unskilled employees or contractors
  • Negligent operation of trucks, forklifts, and heavy equipment
  • Faulty building design
  • Faulty building construction
  • Use of defective or substandard building materials
  • Use of dangerous and defective ladders and scaffolding
  • Inadequate respiratory protection and ventilation
  • Inadequate emergency response protocols

These are just examples. The unfortunate reality is that, on construction sites, there is a lot that can go wrong. When you combine the inherent risks of construction with companies’ decisions to prioritize profits over safety, almost any type of accident can lead to fatal consequences.

Our firm has significant experience representing families following many different types of fatal construction accidents. This includes representing families following the tragic Florida International University (FIU) pedestrian bridge collapse in 2018. We have also handled cases against construction companies in cases involving non-work-related accidents, such as when we represented the family of a teenage girl who was killed when a truck negligently pulled out of a construction site on I-75.

Who Can File a Wrongful Death Claim in Florida?

Under Florida law, there are special rules and procedures that apply to wrongful death claims. While understanding these rules and procedures can be complicated, our lawyers have the experience required to represent grieving families successfully.

One of the first rules that family members need to understand is the rule regarding who can file a wrongful death lawsuit. In Florida, the lawsuit must be filed by the victim’s personal representative.

A personal representative is the individual who is responsible for administering the victim’s final affairs. When a person dies with an estate plan, his or her estate plan will typically designate a personal representative. This designation is controlling—unless someone successfully challenges the validity of the victim’s estate plan based on undue influence, incapacity, or other grounds.

When a person dies without an estate plan, a personal representative will need to be appointed through the probate process. In this scenario, the personal representative is typically a close family member (i.e., a parent, adult child, or spouse), though there are other possibilities as well.

The personal representative files a wrongful death lawsuit on behalf of the victim’s estate. This means that any financial compensation recovered as a result of the lawsuit will be distributed to the victim’s heirs and beneficiaries.

Even if you are not your loved one’s personal representative, if you have questions about filing a lawsuit for a fatal construction accident in Florida, you should speak with a lawyer promptly. At Silva & Silva, our lawyers can help you understand your situation, and we can work with you and your loved one’s personal representative to seek the financial compensation you and your family deserve.

What Does It Mean for a Construction Accident Death To Be “Wrongful”?

Before we go too much farther, it is important to clarify when a death resulting from a construction accident is considered to be “wrongful.” Not all fatal construction accidents will warrant a claim for wrongful death.

So, what is a “wrongful” death? Under Florida law, filing a successful wrongful death claim requires proof of four key elements (in most cases):

  • Duty of Care – In order to be liable, the company that was at fault must have owed a duty of care to the victim. This duty can arise under various circumstances. For example, companies owe a duty to exercise reasonable caution on construction sites, to follow all applicable safety requirements, and to ensure that their drivers operate their vehicles safely.
  • Breach of Duty – Next, the company must breach its duty. This, too, can involve a broad range of different scenarios. Ignoring safety protocols, hiring inexperienced workers, failing to supervise, and using unsound building practices are all examples of potential breaches that can establish financial liability.
  • Accident Causation – The third element of a wrongful death claim is causation. To establish liability, your family’s lawyer must prove that the company’s breach of duty caused your loved one’s accident. There are various ways to prove causation, from surveillance camera footage and eye-witness testimony to a forensic examination of the accident site following your loved one’s death.
  • Untimely Death – Finally, filing a successful wrongful death claim involves proving that the accident led to your loved one’s untimely passing. While going through this process can be emotionally difficult, it is extremely important, and you can expect your lawyer to handle most of the process on your behalf.

While proof of these four elements is required in most cases, there are some notable exceptions. For example, in the case of a fatal accident caused by a product defect, proof of negligence isn’t necessarily required. If a vehicle, forklift, tool or other product is defective, simply proving the defect can be enough to establish grieving family members’ right to financial compensation.

Wrongful Death Damages vs. Workers’ Compensation Death Benefits

We touched on workers’ compensation briefly above, but this is a topic that warrants some additional consideration as well. In Florida, all construction companies with at least one employee are required to carry workers’ compensation coverage.

While this coverage protects workers and their families, it also protects construction companies. When companies comply with Florida’s workers’ compensation requirements, they are immune from wrongful death lawsuits filed by their employees’ families—with only limited exceptions. So, while grieving families can collect death benefits from their loved ones’ employers, they cannot sue these companies for additional compensation in most cases.

But, while grieving families are often restricted from suing their loved ones’ employers, they are not restricted from suing other companies. As a result, even if you and your family are entitled to death benefits through workers’ compensation, your loved one’s personal representative may still be able to file a wrongful death lawsuit against:

  • The owner of the construction site
  • The developer, architecture firm, engineering firm, or another company
  • A contractor or subcontractor
  • A vehicle, equipment, or other product manufacturer

Additionally, while employers that provide workers’ compensation coverage are immune from wrongful death lawsuits in most cases, it is important not to make any assumptions about your family’s legal rights. For example, employer immunity does not apply in cases involving:

  • Gross Negligence – If your loved one’s employer wasn’t just negligent, but was grossly negligent in creating the circumstances that led to your loved one’s death, your family could have a claim outside of workers’ compensation.
  • Intentional Conduct – Similarly, if your loved one’s employer intentionally caused your loved one’s death (i.e., if it knew that ignoring safety protocols was likely to lead to a serious or fatal accident), it is not entitled to immunity.
  • Failure to Carry Workers’ Compensation Coverage – Immunity is only available to employers that comply with Florida’s workers’ compensation coverage requirements.
  • BadFaith Denial of Workers’ Compensation Death Benefits – If your loved one’s employer denies your family’s claim for workers’ compensation death benefits in bad faith, this may entitle your family to additional financial compensation as well.

Why is it important to file a wrongful death lawsuit outside of workers’ compensation? As we said above, for most families, workers’ compensation death benefits are not nearly enough. In Florida, death benefits are limited to funeral expenses (up to $7,500), partial wage loss recovery, and educational benefits for surviving spouses. In total, death benefits cannot exceed $150,000.

But, family members’ losses can far exceed this amount. It is not unusual for wrongful death claims to involve millions of dollars in damages. By pursuing wrongful death claims, eligible family members can seek full compensation for their current and future:

  • Out-of-pocket costs (including funeral, burial, and cremation expenses)
  • Loss of income and inheritance
  • Loss of companionship, consortium, guidance, services, and support
  • Mental pain and suffering

What Are Your Family’s Next Steps?

If you have lost a loved one in a fatal construction accident in Florida, what are your family’s next steps? Right now, the best thing you can do is contact a lawyer as soon as possible. Even though Florida’s statute of limitations for most wrongful death claims is two years from the date of death, there are several reasons why you will want to speak with a lawyer right away.

In addition to contacting a lawyer, some additional steps you can take include:

  • Locate Your Loved One’s Estate Plan – If possible, you should try to locate your loved one’s estate plan. You don’t necessarily need to obtain a copy right now, but it will be helpful if you can tell your lawyer where he or she can obtain it.
  • Collect All Records You Have Related to the Accident – If you have any records related to your loved one’s accident (i.e., medical or employment records), you should compile these to share with your family’s lawyer.
  • Learn More About Your Legal Rights – You may find it helpful to learn more about your family’s legal rights. Our blog has additional articles about construction accident cases and the types of financial compensation that are available.
  • Take Care of Yourself – Finally, and most importantly, you should take care of yourself. If you are struggling to cope with your loved one’s passing, you should consult with a medical professional.

Along with taking these steps, you will also want to avoid any mistakes that could jeopardize your family’s financial recovery. For example, you should not post about the accident on social media, and you should not accept anything resembling a settlement offer from your loved one’s employer or its insurance company. At this point, you should let your family’s lawyer handle all communications on your behalf, and you should rely on your family’s lawyer to help you make informed decisions.

Contact Silva & Silva for a Free and Confidential Consultation

If you have lost a loved one in a fatal construction accident in Florida, we encourage you to contact us for more information. Please call 305-445-0011 or send us a message online to schedule a free and confidential consultation today. 

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