Estate of Deceased Injury Victim Can Sue Negligent Party’s Insurer

The sad fact is that in many catastrophic accidents in death results. When there is a death, it is left to the estate of the deceased to pursue any claims against third parties. But there are still certain areas where the right of an estate to bring a claim is called into question.

A new case, however, has broadened the areas where the estate of a deceased person can bring a lawsuit.

Accident on the Job Brings Lawsuit

The case involved a landscaper killed on the job when he was crushed by a tree. The deceased’s estate initiated a lawsuit against the employer. The employer didn’t defend the claim, and a default was entered in favor of the estate. The insurer for the employer, Zenith Insurance, refused to pay the judgment, so the estate sued Zenith.

The question arose as to whether the estate had any right to sue Zenith. Zenith argued that while the estate may have had the right to bring the injury claim on behalf of the deceased, it had no standing to sue for breach of an insurance contract it was not a party to.

In Florida law, judgment creditors can sue liability insurers that have an obligation to pay for a judgment. Thus, the Florida Supreme Court held that because the estate had become a judgment creditor towards Zenith when it obtained the default judgment, it had standing to bring the breach of contract action against it.

Additionally, Florida statutes specifically allow a party that obtains a judgment against an insured person to pursue the insurer for payment. Although the law doesn’t specifically say that right is given to estates, the court found no reason why it would be inapplicable to them.

Workers’ Compensation Immunity Still Applies

But the news wasn’t all good for the estate. If the estate is going to “stand in the shoes” of the deceased in bringing the contract action against the insurer, it would have to live under the same rules that the deceased would have to if he were alive.

In this case, that meant the application of workers’ compensation immunity. Under workers’ compensation immunity, an employee can’t sue his employer for general or ordinary negligence (it can only do so where there is gross or extreme negligence, a high standard to prove). A worker’s remedies in ordinary negligence against an employer are limited to the workers’ compensation laws.

Thus, because here the injuries were solely based on ordinary negligence, and the employee couldn’t have sued the employer, neither could the estate. The court threw out the default judgment against the employer on that basis.

So in the end, the court expanded the rights and remedies that the estate of a deceased victim has to bring claims. But in any wrongful death case, an attorney for an estate should make sure that they aren’t trying to gain any remedy or make any claim that’s greater than what the deceased would have had, if he had survived the accident the case is based upon.

Wrongful death claims are obviously catastrophic, and emotional. You want attorneys that understand all aspects of handling such sensitive cases. Talk to a  Miami personal injury lawyer at Gerson & Schwartz, P.A. today for a free consultation about your injury case.


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