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Boca Raton Personal Injury Lawyer > Blog > Wrongful Death > Can I Bring A Wrongful Death Lawsuit Even If I’m Not The Executor Of The Victim’s Estate?

Can I Bring A Wrongful Death Lawsuit Even If I’m Not The Executor Of The Victim’s Estate?


In terms of personal injury law, a “wrongful death” is one caused by the negligent or reckless act of another. Florida law recognizes a special cause of action for wrongful death. Specifically, the personal representative appointed to oversee the victim’s estate is entitled to bring a wrongful death lawsuit against any responsible parties. If the lawsuit succeeds, any damages awarded are then received by the personal representative for the benefit of the estate and/or the victim’s survivors.

Federal Court Dismisses Wrongful Death Claim Against Bureau of Prisons

It is important to understand that only a duly appointed personal representative may file a wrongful death lawsuit under Florida law. Other family members or heirs lack the legal standing to pursue such a claim. Even a family member who may be entitled to share in the proceeds of such a lawsuit does not have standing to sue.

A recent decision from the U.S. 11th Circuit Court of Appeals, Moss v. Leesburg Regional Medical Center, provides a useful illustration of what we are talking about. In this case, the plaintiff is the son of a woman who dies while incarcerated in a federal prison. The plaintiff, who is himself incarcerated in a Florida state prison, filed a wrongful death lawsuit against the federal Bureau of Prisons, the medical facility that treated his mother, and various individuals. Essentially, the plaintiff’s lawsuit alleged that his mother died as a result of medical malpractice and other torts committed by the various defendants.

Wrongful death claims against an agency of the federal government–in this case, the Bureau of Prisons–are governed by the Federal Tort Claims Act (FTCA). The FTCA itself says nothing about who has standing to bring a wrongful death claim. This means that federal courts must apply the “law of the pertinent state” to fill in the gap, which in this case was Florida.

As noted above, under Florida law only the duly appointed personal representative of a decedent’s estate can bring a wrongful death lawsuit. But even though the plaintiff was the decedent’s son, he was not the personal representative of her estate. Indeed, the 11th Circuit noted it would not even be legally possible for the son to be appointed as personal representative, as Florida probate law forbids convicted felons from serving in that capacity. Thus, the 11th Circuit affirmed a trial court’s earlier ruling dismissing the plaintiff’s lawsuit.

Speak with a Florida Wrongful Death Lawyer Today

The 11th Circuit’s ruling did not address the actual merits of the wrongful death case. To the contrary, the lawsuit failed to survive a motion to dismiss because the son simply lacked the legal standing to bring the case. The son also represented himself without the assistance of a qualified attorney.

These are all easily avoided mistakes. If you have recently lost a loved one due to another party’s negligent acts, your first step should be to contact an experienced Boynton Beach wrongful death attorney who can advise you on the proper steps to follow before heading to the courthouse. Contact Leifer & Ramirez today to schedule a free consultation with a member of our team.


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