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funeral expenses. See id. The type of damages a survivor recovers is determined by the class of survivor. See id. Survivors are classified as the decedent’s (1) spouse; (2) minor children, defined as children under the age of 25; (3) adult children, defined as children 25 years old and older; (4) parents; (5) blood relatives; (6) and sometimes adoptive siblings. See id. Each class of survivor may recover different types of damages. See id. For example, adult children may only recover damages for mental pain and suffering if there is no surviving spouse of the decedent whereas minor children may always recover damages for mental pain and suffering. See § 768.21(3) Fla. Stat.
DISTINCTIONS & SIMILARITIES IN CONSTRUCTION-RELATED DEATH ACTIONS IN THE STATES SURVEYED AND OTHERS ACROSS THE UNITED STATES
There are significant differences between the laws in New York, Washington, Kentucky, Indiana, West Virginia, and Florida. At the outset, the significant distinctions as to liability provide a threshold barrier to even entertaining the possibility of certain construction-related death actions. While there are many subtle distinctions in the negligence framework of Washington, Kentucky, Indiana, West Virginia, and Florida, New York’s Labor Laws starkly separates it from other states. For instance, a general contractor, even without being directly negligent, would fall squarely within the ambit of New York Labor Law. Yet, a lack of direct, active negligence against such general contractor would preclude liability under the common law negligence regimes of many other states. Even more extreme, such a general contractor, even if negligent, may find immunity under Kentucky law.
After navigating liability, litigators then must analyze the merits and potential damages of a death action. The most significant distinctions between the death causes of action in the various states analyzed here are found in the type of individual or entity permitted to bring such an action. There are essentially two approaches to determining the categories of who can bring lawsuits in death actions found within these five jurisdictions.
Washington, Kentucky, West Virginia, and Florida follow a paradigm in which personal representatives, or estates, are empowered to bring death actions on behalf of the decedent. This approach appears to be the minority view. North Carolina and Alabama similarly restrict such actions brought by anyone other than the estate. Texas places the obligation to do so on the surviving spouse, but transfers the power to do so to the estate if the spouse fails to bring an action within a given time period. Oddly, though, Texas law includes another caveat which gives any other surviving family members of the decedent veto power to prevent the estate from doing so. Nevertheless, there are only a select few states which limit the capacity to bring a death action to the decedent’s estate.
Most states follow the approach established by New York and Indiana, which specifically enumerates the categories of individuals who are capable of bringing an action for the death of the decedent. These categories include the surviving spouse and, while there are deviations, generally can also include children and other close relations to the decedent. Iowa, West Virginia, Kansas, Ohio, Maryland, and Virginia also follow this approach. In addition, California adopts this specific enumeration approach, and even widens it to include additional categories where financial dependence upon the decedent can be proven. Louisiana, similar to Texas, follows a multi-step contingent approach. Unlike Texas, however, the decedent’s estate is not within these categories. Rather, Louisiana provides a system similar to an intestate statute, where the capacity to bring a death action is exclusive to a surviving spouse, then, if they predecease the decedent, then such right passes to surviving children, and so forth.
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Insights SPRING2021