CopyCited 111 times | Published | Supreme Court of Florida
...State,
310 So.2d 12 (Fla. 1975). Petitioners were plaintiffs in the trial court in consolidated wrongful death and survivorship actions prosecuted under the Florida Wrongful Death Act (Sections 768.01-768.03, Florida Statutes (1970), and the former survivorship statute, Section
46.021, Florida Statutes (1970))....
CopyCited 89 times | Published | Supreme Court of Florida | 2004 WL 2922097
...sonal representatives on behalf of deceased residents are allowed only when the nursing home's alleged negligence caused the resident's death. On the other hand, we do not think that such an interpretation was intended by the Legislature in light of section
46.021, Florida Statutes (1993), which provides that "no cause of action dies with the person." To construe section
400.023 as foreclosing all causes of actions for nursing home negligence which does not cause the resident's death is to nullify section
46.021....
...Arthur v. Unicare Facilities, Inc.,
602 So.2d 596 (Fla. 2d DCA), rev. denied,
613 So.2d 4 (Fla.1992) (when death results from complained-of injuries, The Wrongful Death Act applies; when death results from an independent cause, claim is preserved by section
46.021, the survival of actions statute). As such, we hold that section
400.023, Florida Statutes (1993), must be read in pari materia with section
46.021, Florida Statutes (1993) in order to reach a logical result....
...e bargain in passing the resident's bill of rights to limit actions to the lifetime of the patient, other than those alleging that the violation of the rights resulted in the death of the resident. Moreover, section
400.023(1) was enacted long after section
46.021 and I do not see how the two can be harmonized.......
...Petitioner claims that her interpretation of section
400.023(1) is supported by (1) the remedial nature of section
400.023(1), which should be construed liberally; (2) the effect of section
400.023(1) when viewed in light of section
400.022, Florida Statutes (1997), sections
768.16-768.27, Florida Statutes (1997), and section
46.021, Florida Statutes (1997); and (3) the legislative purpose and history of section
400.023(1)....
...gnored the legislative intent of section
400.023(1) as evidenced by (1) existing law and (2) the legislative history of the statute. First, petitioner argues that the lower court failed to consider the different purposes of two related statutes. See §
46.021, Fla....
...(1997) ("Survival Statute"); §§
768.16-768.27, Fla. Stat. (1997) ("Wrongful Death Act"). The Survival Statute states: "No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law." §
46.021, Fla....
...See §
768.21, Fla. Stat. (1997). Petitioner argues that the court below erroneously applied the canon of statutory construction that the specific statute controls over a general statute, when it should have read section
400.023(1) in harmony with section
46.021....
...of a violation of the act. The effect of this interpretation could be viewed as extinguishing or abating a cause of action the decedent clearly would have had under the statute, had he not died. Such a result appears to conflict with the purpose of section 46.021, which clearly provides that all causes of action survive the death of a person....
...Furthermore, in addition to common law negligence, the facility may be liable depending on the particular facts, under the theories of common law intentional torts, like battery, or abuse of a vulnerable adult under section
415.1111, Florida Statutes (1997). *10 Thus, section
400.023(1) does not necessarily conflict with section
46.021....
...United Sec. Servs., Inc.,
314 So.2d 765 (Fla.1975) ("The only logical construction of the ... sentence is that it expresses the legislative intent that a separate lawsuit for death-resulting personal injuries cannot be brought as a survival action under Section
46.021.")....
...The action may be brought by the patient or his guardian or by a person or organization acting on behalf of a patient with the consent of the patient or his guardian ... to enforce such rights.... §
400.023, Fla. Stat. (1981). At the time section
400.023 became operative, section
46.021 had been in effect as Florida's survival statute for decades. Unchanged today, section
46.021 provides: No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law. §
46.021, Fla....
...Bay Hosp., Inc.,
471 So.2d 626, 629 (Fla. 1st DCA 1985); Tappan v. Fla. Med. Ctr., Inc.,
488 So.2d 630, 631 (Fla. 4th DCA 1986). Only the preservation of the entirety of a decedent's claim through transferral to his or her estate accomplishes the goal of section
46.021 continuation of claims as if the originally injured party had not died....
...t is not alleged that death resulted from the claimed negligence. As stated in Martin, supra, the intent of the amended Wrongful Death Act is that "a separate lawsuit for death-resulting personal injuries cannot be brought as a survival action under Section 46.021." Id....
...ent exists. The statutory language within section
400.023 which is argued to provide for the elimination of causes of action filed by estates for the violation of chapter 400 prior to the decedent's death due to other causes certainly conflicts with section
46.021 of the Florida Statutes, which provides that "no cause of action dies with the person." §
46.021, Fla....
...alized care into a mechanism providing negligent caregivers an unintended shield from responsibility. Additionally, it is absolutely clear that the amendment to the statute we consider today did not expressly repeal or abolish survival actions under section 46.021, but the majority's analysis and concurring view today causes an implied repeal of survival actions when death has not resulted from a chapter 400 wrong....
...As noted above, in the scenario in which a Florida citizen dies as a consequence of causes unrelated to tortious violations of chapter 400 rights which occurred prior to death, the decedent's estate retains the resulting cause of action against the tortfeasor under this state's survival statute. See § 46.021, Fla....
...[4] Petitioner also argues that the court below, in adopting Judge Warner's dissent from Greenfield, improperly holds that the statutory rights provided by section
400.023(1) are "largely personal to the resident of the facility" and thus do not survive the resident's death under section
46.021....
CopyCited 62 times | Published | Supreme Court of Florida
...These two cases concern the constitutionality of Florida's new Wrongful Death Act, Sections
768.16-768.27, *767 Florida Statutes (1973). [1] Specifically, we are asked to determine whether the new Act has constitutionally eliminated claims under the survival statute, Section
46.021, Florida Statutes (1973), for (1) pain and suffering of a decedent and (2) punitive damages pursuant to Atlas Properties, Inc....
...Railway Express Agency,
40 So.2d 131 (Fla. 1949); Shiver v. Sessions,
80 So.2d 905 (Fla. 1955); Parker v. City of Jacksonville,
82 So.2d 131 (Fla. 1955). First, the administrator of a decedent's estate could maintain a survival action on behalf of the deceased under Section
46.021, Florida Statutes....
...amage from the decedent to the survivors. The only logical construction of the italicized sentence is that it expresses the legislative intent that a separate lawsuit for death-resulting personal injuries cannot be brought as a survival action under Section 46.021....
...The purpose of the italicized sentence is to implement the consolidation. It, together with the preceding sentence and the rest of the Act, conveys an unmistakable legislative intent to incorporate into the new Wrongful Death Act the survival action formerly maintainable under Section 46.021, but modified to substitute a survivor's pain and suffering for a decedent's pain and suffering as an element of damages....
...Whether the title of the new Act provides sufficient notice of these changes is the next issue we must resolve. There is no question that the title could have been more explicitly drawn to include a reference by section number to the survival action statute, Section 46.021, Florida Statutes, under which damages for a decedent's pain and suffering were recoverable. It is argued that the failure to state specifically in the title that Section 46.021 was amended, particularly in view of reference to the amendment of Chapter 768 and the repeal of other specifically enumerated statutes, renders the title constitutionally defective....
...117 (1930); State v. Florida State Turnpike Authority,
80 So.2d 337 (Fla. 1955). However, the trial court found in the Martin case now before this Court, and we concur, that the title does contain a general description of matters germane both to Sections
46.021, the survival act, and to Sections
768.16-768.27, the Wrongful Death Act....
...Concerning the second contention, we believe that the new right of surviving close relatives to recover for their own pain and suffering brought about by the wrongful death of a decedent is a reasonable alternative to dividing among the survivors the amount formerly recoverable under Section 46.021, Florida Statutes, for the decedent's pain and suffering, if any. The new item of damage is much more susceptible of proof, since the party claiming damage for the pain and suffering is available to testify, while the claim formerly permitted under Section 46.021 for the decedent's pain and suffering had to be based upon testimony of others....
...[S]uch a rule of law cannot be allowed to exist."
226 So.2d at 688. Justice Thornal's opinion was based on (1) the aforementioned statement of why public policy must allow recovery of punitive damages in wrongful death situations and (2) the language of the survival statute, Section
46.021....
...the Martin case now before this Court. The appellant, Beverly Martin, administratrix of the estate of Joyce C. Atchley, sued appellee, United Security Services, in separate survival and wrongful death actions. In her survival action complaint under Section 46.021, appellant alleged that United Security had hired an individual named David D....
CopyCited 45 times | Published | Supreme Court of Florida
...552, 529 P.2d 706 (1974); Virginia Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969); Iowa McKillip v. Zimmerman, Iowa, 191 N.W.2d 706 (1971). [6] Section 768.03, Florida Statutes. [7] Section 768.01, Florida Statutes. [8] Section 45.11, Florida Statutes (1965, as amended), Section 46.021, Florida Statutes (1971).
CopyCited 42 times | Published | District Court, M.D. Florida | 2002 U.S. Dist. LEXIS 10210, 2002 WL 1257767
...The action may be brought by...the personal representative of the estate of the deceased resident regardless of the cause of death. If the action alleges a claim for the resident's rights or for negligence that caused the death of the resident, the claimant shall be required to elect either survival damages pursuant to s. 46.021 or wrongful death damages pursuant to s....
...NBERGER courteously, fairly, and with the fullest measure of dignity." [Docket No. 7 ¶ 8( l )]. Consequently, pursuant to the revised version of Fla. Stat. §
400.023(1), Plaintiff Thompson, is "required to elect either survival damages pursuant to s.
46.021 or wrongful death damages pursuant to s....
...tion. Plaintiff Thompson's Amended Complaint complied with these requirements in both Counts. Plaintiff Thompson, alleges that those violations of residents' rights that caused Lois Snellenberger's death "survive [her] death...pursuant to Fla. Stat. § 46.021." [Docket No....
CopyCited 39 times | Published | Court of Appeals for the Eleventh Circuit | 89 Fed. R. Serv. 3d 1199, 2014 U.S. App. LEXIS 17450
...Servs., Inc.,
314 So. 2d 765, 769–70 (Fla. 1975). If the decedent died for some
unrelated reason—i.e., not as a result of the tortfeasor’s actions—the personal representative can
maintain a claim for survival damages on behalf of the deceased. See Fla. Stat. §
46.021; Smith
v....
CopyCited 35 times | Published | Florida 2nd District Court of Appeal
...Robert Mann of Mann, Fay & Price, Bradenton, for appellant. Spence, Payne & Masington and Podhurst, Orseck & Parks, Miami, for appellee Williford. HOBSON, Judge. Appellee, hereinafter referred to as plaintiff, brought an action under former Florida Statute 768.01-02 and Florida Statute 46.021 for wrongful death and survival damages against the appellant, Dr....
CopyCited 30 times | Published | Florida 4th District Court of Appeal
...See also the annotation at 104 A.L.R. 654, Effect of Death of party to divorce suit before final decree, especially IV., Death before actual entry of decree propriety of decree nunc pro tunc, and 19 A.L.R.3d 648 entitled "Entering judgment or decree of divorce nunc pro tunc". Note Section 46.021, F.S....
CopyCited 28 times | Published | Florida 4th District Court of Appeal | 1998 WL 25538
...sonal representatives on behalf of deceased residents are allowed only when the nursing home's alleged negligence caused the resident's death. On the other hand, we do not think that such an interpretation was intended by the Legislature in light of section
46.021, Florida Statutes (1993), which provides that "no cause of action dies with the person." To construe section
400.023 as foreclosing all causes of actions for nursing home negligence which does not cause the resident's death is to nullify section
46.021....
...Arthur v. Unicare Facilities, Inc.,
602 So.2d 596 (Fla. 2d DCA), rev. denied,
613 So.2d 4 (Fla.1992)(when death results from complained-of injuries, The Wrongful Death Act applies; when death results from an independent cause, claim is preserved by section
46.021, the survival of actions statute). As such, we hold that section
400.023, Florida Statutes (1993), must be read in pari materia with section
46.021, Florida Statutes (1993) in order to reach a logical result....
...e bargain in passing the resident's bill of rights to limit actions to the lifetime of the patient, other than those alleging that the violation of the rights resulted in the death of the resident. Moreover, section
400.023(1) was enacted long after section
46.021 and I do not see how the two can be harmonized, nor does the majority opinion give any rationale to do so....
CopyCited 25 times | Published | Supreme Court of Florida
...This Court has jurisdiction to review the District Court's opinion because the latter certified to this Court that said opinion "`passes upon a question of great public interest', in that it determines the right to punitive damages in an action based upon the survival of actions pursuant to Section 46.021, Fla....
...Didich sued Atlas Properties, in two capacities: (1), as a parent under Fla. Stat. § 768.03 (1965), F.S.A., seeking compensatory damages for the wrongful death of his minor daughter; and, (2), as the administrator of Kay's estate under Fla. Stat. § 45.11 (1965) [now Fla. Stat. § 46.021 (1967), F.S....
...The issue dealing with the compensatory damage awards has been dropped since petitioner has paid Mr. Didich both $20,000.00 awards.) (1) Whether punitive damages are recoverable by the personal representative of the deceased injured party under Fla. Stat. § 45.11 (1965) [now § 46.021 (1967), F.S.A.], Florida's survival of actions statute....
...It puts to rest the old saying that it is better to kill your victim than to maim him. Connolly v. Palm Aire Country Club,
26 Fla. Supp. 17 (Broward County Cir. Ct. 1965): This is really the only case exactly on point. It holds punitive damages recoverable under § 45.11. § 45.11 was amended in 1967 to §
46.021, and it now reads: "No cause of action dies with the person....
...Morgan, supra , properly explains why such a rule of law cannot be allowed to exist. This explains the public policy reasons for allowing Mr. Didich to recover in the instant case, but there is a far better and simpler reason for allowing *689 recovery. The clear language of § 45.11 [now § 46.021 (1967)], "No * * * action shall die with the person * * * ", indicates that any interpretation other than allowing recovery for punitive damages after the death of the injured party would be extremely difficult to justify....
...Because this new issue is not fundamental error it cannot be raised here for the first time. Hamilton v. State,
88 So.2d 606, 607 (Fla. 1956). To conclude we find that this is a case of first impression in Florida and that the clear legislative intent on the face of Fla. Stat. § 45.11 (1965) [now §
46.021 (1967), F.S.A.], indicates that punitive damages were meant to survive the death of the injured party....
CopyCited 24 times | Published | Supreme Court of Florida
...The deceased was unmarried and had no children; his parents survived him, but they were not financially dependent upon him. Appellant parent, individually and as administrator, brought suit in Circuit Court seeking whatever relief possible under Fla. Stat. § 46.021, F.S.A., the Survival Statute, and Fla....
CopyCited 23 times | Published | Supreme Court of Florida | 1973 Fla. LEXIS 5012
...The complaint alleged that the plane was being flown under the direct supervision of Joe W. Lain, as flight instructor, and with the knowledge, permission and consent of the defendant, Miami Revival Center, Inc. Damages were sought under the Florida Survival Statute, F.S. Section 46.021, F.S.A., and the Wrongful Death Statute, F.S....
CopyCited 23 times | Published | Supreme Court of Florida | 1988 WL 34019
...In Atlas Properties, this Court was considering the right of an estate of a decedent who was killed in an accident to recover punitive damages from the living tortfeasor. We were interpreting our survival statute in existence at that time, which is now included in section 46.021, Florida Statutes (1985)....
CopyCited 17 times | Published | Supreme Court of Florida | 28 Fla. L. Weekly Supp. 122, 2003 Fla. LEXIS 166, 2003 WL 252155
...ority to take legal action against any facility that deprives a patient of his rights pursuant to Chapter 400, Part I. Fla. S. Comm. on Health & Rehabilitative Servs., CS for SB 1218 (1980) Staff Analysis at 1-2 (June 10, 1980) (emphasis added). [7] Section 46.021, Florida Statutes (1997), also known as the "survival statute," provides: "No cause of action dies with the person....
CopyCited 16 times | Published | Florida 5th District Court of Appeal | 1995 WL 570434
...e person has died as a result of the deprivation of his nursing home resident's rights, the nature and measure of damages are controlled by the Wrongful Death Act, sections
768.16 .27, Florida Statutes (1991), rather than by the survival statute, section
46.021, Florida Statutes (1991). Sections
768.16 .27 do not provide for an award of damages for the decedent's physical and mental pain but section
46.021 does allow such damages....
CopyCited 16 times | Published | Florida 3rd District Court of Appeal
...The complaint was amended to present, in addition to the claim of Harry Whitman individually, claims by him as the husband of the decedent for wrongful death under §§ 768.01 and 768.02 Fla. Stat., F.S.A., and as administrator of the estate of his deceased wife, under the survival statute, § 45.11, now § 46.021 Fla....
CopyCited 14 times | Published | Florida 4th District Court of Appeal
...r and Joan Galiardo, Liberty Mutual and others who are not parties to this appeal. In a single complaint damages were sought for the wrongful death of Diane pursuant to Section 768.02, Florida Statutes (1971) and for survivorship damages pursuant to Section 46.021, Florida Statutes (1971)....
CopyCited 13 times | Published | Florida 5th District Court of Appeal | 1989 WL 139521
...plaintiff's death, but actions for personal wrongs and personal injuries were considered "personal" causes of action and died with the person. [2] The common law rule that personal causes of action die with the person has been generally abrogated by section 46.021, Florida Statutes, which states: No cause of action dies with the person....
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 1990 WL 149760
...that the "assignability of a cause of action is the rule rather than the exception," Selfridge v. Allstate Insurance Company,
219 So.2d 127 (Fla. 4th DCA 1969), and that "many causes of action based on tort survive" the tort victim's death. Id.; see §
46.021, Fla....
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 1992 WL 135047
...NOTES [1] The Wrongful Death Act, sections
768.16-768.27, Florida Statutes (1987), eliminates claims for pain and suffering when death results from the complained of injuries. When death results from an independent cause, such a claim is preserved by the survival of actions statute, section
46.021, Florida Statutes (1987)....
CopyCited 12 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 102, 2013 WL 535417, 2013 Fla. LEXIS 249
...nd that the claimant may recover actual and punitive damages. Id. If the action alleges that negligence or a violation of the resident’s rights caused the resident’s death, the claimant is “required to elect either survival damages pursuant to s.
46.021 or wrongful death damages pursuant to s.
768.21.” Id. 2 Section
46.021 provides that “[n]o cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.” §
46.021, Fla....
CopyCited 11 times | Published | District Court, S.D. Florida | 1990 U.S. Dist. LEXIS 12494, 1990 WL 138866
...Survivor Statute, as well as under the common law tort of civil conspiracy. An important commonality involving both statutory causes of action under the Florida Wrongful Death Act, Fla.Stat. §
768.19, [4] and the Florida Survivor Statute, Fla.Stat. §
46.021, [5] as well as the Florida common law tort of civil conspiracy, is that all three actions must be based on a cognizable underlying tort....
...Fla.Stat. §
768.19 (emphasis added). [5] The Florida Survivor Statute provides: No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted and defended in the name of the person prescribed by law. Fla.Stat. §
46.021....
CopyCited 11 times | Published | Supreme Court of Florida
...Exson in the ambulance you never saw him again; is that correct? "A I never saw him again. * * * * * "Q Did you consider him under arrest at that moment? "A Not necessarily, because I had to wait for the report on the doctor." (Emphasis added) [3] Fla. Stat. § 46.021, F.S.A....
CopyCited 11 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 402, 2013 WL 2631180, 2013 Fla. LEXIS 1180
...e amended complaint also contained the following language: Alternatively, in the event one or more of the Defendants contend that Decedent died of some cause unrelated to smoking cigarettes, Plaintiff asserts a claim for survival damages pursuant to Section 46.021, Florida Statutes, as Decedent suffered past physical and mental and emotional pain and suffering, loss of enjoyment of life and medical expense for care and treatment....
...Mail on September 24, 2008.” In a memorandum of law that accompanied the motion, Karen asserted that she was not seeking to convert the personal injury action into a wrongful death action. Instead, she was leaving room for the possibility that Plaintiff may have an alternative claim for survival damages pursuant to Section 46.021, Florida Statutes, in the event the Plaintiff does not succeed in proving at trial that the alleged cigarette-related diseases and/or medical conditions caused by the Defendants were the cause or substantial cause of Decedent FRANK CAPONE’s death....
...The district court then noted that because the cause of Peter’s death was not clear from the record, the pleadings did not permit the personal injury action to be terminated under section
768.20. See id. at 34. Further, the personal injury action could not be dismissed based upon section
46.021, Florida Statutes (2002), which provides that “[n]o cause of action dies with the person....
...me of the person prescribed by law.” Id. at 33-34. The Second District concluded that substitution of parties was necessary because, otherwise, “the trial court would never be able to resolve this action by correctly applying sections
768.20 and
46.021 because there would never be a party who could proceed or against whom a dismissal could be entered.” Id....
...Accordingly, as of May 8, 2009, Karen, in her capacity as personal representative of Frank’s estate, was added as a party plaintiff to the action, and an amended complaint — which alleged not only a claim for wrongful death, but also a claim for survival damages pursuant to section 46.021, Florida Statutes — was pending against Philip Morris....
...Therefore, our standard of review is de novo. See Universal Ins. Co. of N. America v. Warfel,
82 So.3d 47, 57 (Fla.2012). At issue in this case is the interplay between two different causes of action under the Florida Statutes: the survival action statute, section
46.021, Florida Statutes (2008), and the Florida Wrongful Death Act. Section
46.021, titled “Actions; surviving death of party,” provides: No cause of action dies with the person....
...of action could be brought for a negligently caused death.” Martin v. United Security Services, Inc.,
314 So.2d 765, 767 (Fla.1975). First, the administrator of a decedent’s estate could maintain a survival action on behalf of the deceased under Section
46.021, Florida Statutes....
...death claim, or both, may continue to be pursued against an alleged tortfeasor. See Niemi,
862 So.2d at 34 (“Without the substitution of parties, the trial court would never be able to resolve this action by correctly applying sections
768.20 and
46.021 because there would never be a party who could proceed or against whom a dismissal could be entered.”)....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2003 WL 22187140
...Next, we conclude that the transition from life to death for a personal injury action is not as simple as the defendants wish it to be. It is true that under the common law, actions for personal wrongs and personal injuries die with the person. See Taylor,
555 So.2d at 878. However, section
46.021, Florida Statutes (2002), has long overridden the common law. Section
46.021 states: "No cause of action dies with the person....
...uch action pending at the time of death shall abate." Thus, when death is the result of a personal injury, the law of Florida essentially substitutes a statutory wrongful death action for the personal injury action that would otherwise survive under section 46.021....
...As a result, the pleadings do not currently claim that his death was either the result of his personal injury or the result of some independent cause. Thus, the pleadings do not permit the personal injury action to be abated under section
768.20, and the action cannot be dismissed in light of section
46.021....
...sentatives were not permitted to become parties and would not have the power to file an appeal at a later time. Without the substitution of parties, the trial court would never be able to resolve this action by correctly applying sections
768.20 and
46.021 because there would never be a party who could proceed or against whom a dismissal could be entered....
CopyCited 10 times | Published | Florida 4th District Court of Appeal
...We find no error by the trial court in setting aside the award for damages sustained by Mrs. McCarson while she lived. The original claim for intentional infliction was filed by Mrs. McCarson while she was alive, and this claim would have survived if her death had resulted from other causes. § 46.021, Fla....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 58 A.L.R. 3d 183
...or in any way suggest that his personal representative could also be held liable for support of the child. The other case, which held to the same effect, was Toms v. Lohrentz, 37 Ill. App.2d 414, 185 N.E.2d 708. The appellee contends that because of § 46.021, Fla....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2000 WL 668482
...fringement of the decedent's rights.... Any plaintiff who prevails in any such action may be entitled to recover reasonable attorney's fees, costs of the action, and damages.... The majority in Greenfield read section
400.023(1) in pari materia with section
46.021, Florida Statutes (1993), which provides that "no cause of action dies with the person" and concluded that To construe section
400.023 as foreclosing all causes of actions for nursing home negligence which does not cause the resident's death is to nullify section
46.021....
...e bargain in passing the resident's bill of rights to limit actions to the lifetime of the patient, other than those alleging that the violation of the rights resulted in the death of the resident. Moreover, section
400.023(1) was enacted long after section
46.021 and I do not see how the two can be harmonized.......
...As a general rule of statutory construction, a special statute controls over a general statute. See McKendry v. State,
641 So.2d 45 (Fla.1994).
705 So.2d at 934. In conclusion, because the legislative language of section
400.023(1) is unequivocal on the specific subject to which it speaks, it need not be "harmonized" with section
46.021, an inconsistent, general, and earlier-enacted statute....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 2004 WL 119298
...It is logical that the survival statute would save the cause of action. It provides: Actions; surviving death of a party. No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted and defended in the name of the person prescribed by law. § 46.021, Fla....
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...and Hunter were clearly antagonistic in their interests and were therefore entitled to three challenges each of a total of six challenges for each side. Furthermore, appellant Reeder had two distinct causes of action, one under the common law in tort and another under the old wrongful death statutes, F.S. 768.02 and F.S. 46.021 (1971)....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 11 Fla. L. Weekly 1067
...The question, then, is whether that rule has been changed by statute in Florida. In Atlas Properties the Florida Supreme Court held that punitive damages could be recovered by a personal representative under Florida's survival statute, then section 45.11, now section 46.021....
...Nevertheless, if punitive damages can be classified as a "cause of action" under the survival statute, as they were by the supreme court in Atlas Properties, then that classification applies regardless of whether it is the tortfeasor or the injured party who dies. So interpreted, section 46.021 is an abrogation of the common law in regard to punitive damages against a deceased tortfeasor....
...NOTES [1] These states allow punitive damages as additional compensation for such losses as inconvenience, attorney fees, and remote losses of the claimant. See Hofer v. Lavendar, 679 S.W.2d 470 (Tex. 1984); Perry v. Melton, 299 S.E.2d 8 (W. Va. 1982). [2] Section 46.021, Florida Statutes (1985), provides: Actions; surviving death of party....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal
...Approximately two weeks later, she returned to the hospital and died on December 20, 1975. Her sons, appellants captioned above, as the personal representatives of Mrs. Smith, filed a two-count complaint against appellees Lusk and Hanover Insurance Company. Count I was an action pursuant to Section 46.021, Florida Statutes (1975), commonly referred to as "The Survival Statute", for personal injuries and pain and suffering of Mrs....
...Smith's death was caused directly by the negligence of appellee Lusk. In Count II, appellants sought damages for their mental anguish by reason of the death of their mother, medical and funeral expenses, and diminished value of the estate. Thereafter, appellees moved to dismiss Count I on the ground that Section
46.021 was impliedly abolished by the enactment of Section
768.16, et seq....
...e was impliedly abolished by enactment of the wrongful death act and dismissed Count I of the complaint without leave to amend. Appellants' motion for rehearing was denied. Appellants filed this appeal in the Supreme Court which transferred it here. Section 46.021, Florida Statutes (1975), provides in part: "Actions; surviving death of party....
...nce of Section
768.20, supra, urging that the legislature provided that when an injury causes death no action for personal injury shall survive and any such action pending at the time of death shall abate and, thus, this language impliedly abolishes Section
46.021....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal
...ution if his wrongful act causes a death." Leahy v. Morgan,
275 F. Supp. 424, 425 (E.D. Iowa 1967). We therefore hold that when the law permits them to be awarded, punitive damages are recoverable under the Florida Survival Act, § 45.11 (1965) (now §
46.021, Fla....
CopyCited 7 times | Published | District Court, S.D. Florida | 1988 U.S. Dist. LEXIS 16666, 1988 WL 161328
...ury claim. Rather, the present motion to enforce the settlement agreement has evolved into an action arising out of breach of contract, and actions ex contract survive the death of the plaintiff. 1 Fla.Jur.2d Actions § 77 (1977). See also Fla.Stat. § 46.021....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 1569
...Williams' "chance to survive." Appellant *629 insists, however, that the substitution of Mr. Williams, in his capacity as personal representative, as plaintiff in the action merely converted the case into a survival action, although no effort has been made to amend the complaint by adding a reference to Section 46.021, Florida Statutes (1983), the survival of actions statute. We agree that the absence of a specific reference in the complaint to reliance on Section 46.021, Florida Statutes, is not fatal, since appellant is entitled to amend as necessary to clarify the basis for the action....
...t is not alleged that death resulted from the claimed negligence. As stated in Martin, supra, the intent of the amended Wrongful Death Act is that "a separate lawsuit for death-resulting personal injuries cannot be brought as a survival action under Section 46.021." Id....
CopyCited 5 times | Published | District Court, M.D. Florida | 2002 U.S. Dist. LEXIS 22849, 2002 WL 31599468
...This determination is relevant for two reasons, unrelated to the Wrongful Death Act. First, because Ms. Gonzalez is not the *1196 surviving spouse she cannot prosecute a claim for damages to the decedent under Florida's survivor statute, Fla. Stat. § 46.021, assuming there is a claim to prosecute....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2005 WL 700953
...'s rights, we conclude the trial court correctly decided that no legal basis existed for the submission of the punitive damages claim to the jury. AFFIRMED. KAHN and VAN NORTWICK, JJ., Concur. NOTES [1] The third, a survivorship claim, brought under section 46.021, Florida Statutes, was dismissed during trial, and the dismissal is not an issue on appeal....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...William H. Forrest, the surviving husband and administrator, sued Dr. Carter and Lisenby Hospital for damages in Bay County Circuit Court. The action was commenced under the wrongful death statute, former F.S. 768.01-768.02, and the survival statute, F.S. 46.021....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...of Philadelphia, supra, should control the facts of the present case and hold that the judgment in Perdie Hill's wrongful death suit does not estop the appellant from litigating the personal representative's claim under the survival statute, Section 45.11, F.S. 1963 (now Section 46.021, F.S....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...excessiveness of this verdict. SURVIVAL ACTION COMPENSATORY DAMAGES Edward Simonson, Jr., son of the decedents, was the personal representative of their respective estates and the plaintiff in the survivorship action brought under *711 Fla. Stat. § 46.021 (1971)....
...Reversed and remanded. MAGER and DOWNEY, JJ., concur. NOTES [1] The decedents' death occurred on January 15, 1971 and thus these actions were under the "old" Wrongful Death Act, former Fla. Stat. §§ 768.01-768.03 (1971), and the Survivorship Statute, Fla. Stat. § 46.021 (1971), the "new" Wrongful Death Act, Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...Appellant concedes that death was caused by the lung cancer which was incurable. Appellant contends the survivors are entitled to damages for the shortened life expectancy under the Wrongful Death Act. Appellee asserts that, if a cause of action exists at all, it is under the survival statute, Section 46.021, Florida Statutes (1983), not the Wrongful Death Act....
CopyCited 4 times | Published | District Court, M.D. Florida | 1995 U.S. Dist. LEXIS 8932, 1995 WL 385108
...The addition of paragraph 14 to the settlement agreement simply makes explicit what defendant's personal representative would have had the right to do in enforcing the settlement agreement if defendant died before receiving the $175,000 which plaintiff promised to pay in settlement of their claims. See generally Fla.Stat. § 46.021 (causes of action do not die with the person but may be prosecuted in the name of the person prescribed by law); Reed by and through Reed v....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1998 WL 422317
...However, if any health care provider described in this paragraph is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider." [2] While section 46.021, Florida Statutes, does provide that no cause of action dies with the claimant, the wrongful death statute specifically limits the category of damages recoverable by a decedent's estate....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1988 WL 8417
...We reverse the order as to the appeal by Norma H. Poole, and affirm as to the cross-appeal by TMRMC. Norma H. Poole filed a complaint on January 20, 1984, under the wrongful death (Sections
768.16-768.26, Florida Statutes) and the survival statute (Section
46.021, Florida Statutes), against TMRMC, alleging the latter's negligence in the treatment of Mr....
...is death. Section
768.20 specifically states in part: "When a personal injury to the decedent results in his death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate." The survival statute, section
46.021, states that causes of action do not die with the person....
CopyCited 3 times | Published | District Court, S.D. Florida | 2011 WL 7661425, 2011 U.S. Dist. LEXIS 154858
...City of Prattville,
639 F.3d 1041, 1045 (11th Cir.2011) (citing 42 U.S.C. § 1988 (a) (2011)). Under applicable Florida law, “[n]o cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.” Fla. Stat. §
46.021 (2011); see also Nguyen v. U.S. D.E.A., No. 1:0 CV 00026 MP AK,
2005 WL 2143970 (N.D.Fla. Sept. 1, 2005) (Applying §
46.021 to allow survival of cause of action against deceased defendant)....
CopyCited 2 times | Published | District Court, M.D. Florida | 2014 U.S. Dist. LEXIS 133727, 2014 WL 4542998
...Opp’n Amend 5-7; Order 16-17 (Corrigan, Howard, and Dalton, JJ.), Nov. *1362 26, 2012, In Re: Engle Cases, Docket No. 3:09-cv-10000-WGY, ECF No. 835. In order properly to adjudge this issue, it is first necessary to distinguish between a' suit brought under the survival action statute, Fla. Stat. § 46.021 , and a suit brought under the Wrongful Death Act, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...claim against both defendants for medical expenses and funeral bill and against the individual defendant employee truck driver for punitive damages. The Supreme Court in the *861 aforementioned case held that the provisions of the Survival Statute, Section
46.021, Florida Statutes, were consolidated with the new Wrongful Death Act of Florida, Sections
768.16-768.27, Florida Statutes; that the claim for a decedent's pain and suffering was eliminated and that there was substituted the claim of pain and suffering for close relatives of the decedent....
CopyCited 2 times | Published | District Court, N.D. Florida | 2005 U.S. Dist. LEXIS 18587, 2005 WL 1690601
...ntify any statutory basis for their claims. Defendants describe Plaintiffs' cases as wrongful death or survival actions brought pursuant to Florida's Wrongful Death Act ("WDA"), Fla. Stat. §
768.16-§ 768.27, and Survival Statute ("SS"), Fla. Stat. §
46.021, a characterization which Plaintiffs have not disputed....
CopyCited 2 times | Published | District Court, M.D. Florida | 2014 WL 260568, 2014 U.S. Dist. LEXIS 10292
...Plaintiff’s Survival Claims An individual’s claims for personal injuries not causing death survive the decedent’s death and may be prosecuted by the personal representative as a survival claim, which is a distinct cause of action from a wrongful death claim. See Fla. Stat. § 46.021 (“No cause of action dies with the person....
CopyCited 2 times | Published | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 7390
estate and under the survival statute, F.S. Section
46.021, F.S.A., for medical treatment, bodily injury
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit | 54 U.S.L.W. 2403, 12 Media L. Rep. (BNA) 1561, 1985 U.S. App. LEXIS 25432
...ill pending. It has no bearing on these appeals. . The cartoon appears as an appendix to this opinion. . Gerald Keller died prior to the filing of this suit. In Florida, however, a libel action survives the death of the injured party. See Fla. Stat. § 46.021 (1983)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1989 WL 100496
...ians alleging that the physicians had treated Mrs. Diamond and had misdiagnosed a cancerous growth. After the lawsuit was filed, Mrs. Diamond died. Her husband was appointed personal representative of her estate. He pursued the survival action under section 46.021, Florida Statutes (1987)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1995 WL 234614
...el treating the mother and her babies during a high-risk delivery. [3] F.S. 768.03 (1965). [4] F.S. 768.03 (1971), superseded by F.S.
768.16.27 (1973). [5] F.S. 768.01 (1971), superseded by F.S.
768.16.27 (1973). [6] F.S. 45.11 (1965), as amended, F.S.
46.021 (1971), superseded by F.S....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2006 WL 2872627
...affirm a trial court that `reaches the right result, but for the wrong reasons' so long as `there is any basis which would support the judgment in the record'") (quoting Dade County Sch. Bd. v. Radio Station WQBA,
731 So.2d 638, 644-45 (Fla.1999)). Section
46.021, Florida Statutes, provides that "[n]o cause of action dies with the person....
...Brown & Williamson Tobacco Corp.,
862 So.2d 31, 33 (Fla. 2d DCA 2003), "when death is the result of a personal injury, the law of Florida essentially substitutes a statutory wrongful death action for the personal injury action that would otherwise survive under section
46.021." The Supreme Court of Florida upheld the constitutionality of section
768.20 in Martin v....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 18024
...onstrate that the action was timely filed within the statute of limitations as to fraud, Sections
95.031,
95.11(3)(j), Florida Statutes (1979). The judgment under review is therefore Reversed. . The fraud action survived the death of Elliott Mackle. §
46.021, Fla.Stat....
CopyCited 1 times | Published | District Court, M.D. Florida | 2011 U.S. Dist. LEXIS 151514, 2011 WL 6965854
...ages for wrongful death.” Id. at 628 (emphasis added). He argued that his substitution “as plaintiff in the action merely converted the case into a survival action,” although he made no effort “to amend the complaint by adding a reference to Section 46.021, Florida Statutes (1983), the survival of actions statute.” Id....
...uffering for “non-death-resulting injuries” defendant allegedly caused during her lifetime. Id. The appellate court remanded the case, finding that Mr. Williams’s failure to amend his complaint to include a “specific reference to reliance on Section 46.021” was not “fatal” because he was “entitled to amend as necessary to clarify the basis for the action.” Id....
...ef twenty days after service of petitioner’s initial brief. Id. It deferred setting a date for oral argument, but directed the Clerk of the Third District Court of Appeal to file the original record on or before December 16, 2011. Id. . Fla. Stat. § 46.021 (2011) ("Florida's Survival Statute” or "Survival Statute” or "Section 46.021”)....
CopyCited 1 times | Published | District Court, S.D. Florida | 1974 U.S. Dist. LEXIS 9589
...analogy with Fed.R. Civ.P. 12(h) (2), would be at trial. In substance, however, the motion to strike seeks the dismissal of four of the five claims for relief stated in the complaint on the ground that a survival action brought pursuant to Fla.Stat. § 46.021 (1971) may not be maintained....
CopyCited 1 times | Published | District Court, N.D. Florida
...Thus, the Court looks to state law, Florida law in this instance, to fill the gap. B. Florida Wrongful Death Act Before 1972, when personal injury resulted in death, two causes of action were available under Florida law. First, because the decedent’s cause of action survived under Fla. Stat. § 46.021 (“[n]o cause of action dies with the person”), the personal representative could bring suit on the decedent’s behalf....
...decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” 11 Fla. Stat. §
768.20 (emphasis added). Thus, unlike the former separate survival action under Fla, Stat. §
46.021, the FWDA does not provide for the survival of a decedent’s claim for pain and suffering....
..., given that the FWDA.requires “tortfeasor answerability in damages to-the decedent’s estate for injury resulting in death.” Martin,
314 So.2d at 770 (construing §
768.20 as precluding a separate lawsuit under the survival statute, Fla. Stat. §
46.021 , for the decedent’s pre-death injuries); see id....
...should be compensated fairly for injuries caused by the violation of his legal rights”). . In Florida, a statute providing for the survival of actions after the death of a party was on the books as early as 1828, and still remains. See Fla. Stat. § 46.021 (2015) (“No cause of action dies with the person.”) (History — s.30, Nov....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 18323, 2010 WL 4861743
...ial of his/her case); Niemi,
862 So.2d at 31 (holding that, when death is the result of a personal injury, the law of Florida essentially substitutes a statutory wrongful death action for the personal injury action that would otherwise survive under section
46.021)....
...Brown & Williamson,
862 So.2d 31, 33 (Fla. 2d DCA 2003) ("When death is the result of a personal injuiy, the law of Florida essentially substitutes a statutoiy wrongful death action for the personal injuiy action that would otherwise survive under §
46.021” and "a personal injury action only 'abates' [under the Wrongful Death Act] if it is first determined that the personal injury resulted in the plaintiff’s death.”)....
CopyPublished | Florida 5th District Court of Appeal | 2003 Fla. App. LEXIS 13285, 2003 WL 22056310
...rooksville Healthcare Center in Hernan-do County, Florida, for rehabilitation after having suffered a stroke. Ms. Johnson passed away on April 12, 1999. Count I of the complaint asserted a statutory deprivation and infringement of rights pursuant to section 46.021, Florida Statutes (1999)....
CopyPublished | District Court of Appeal of Florida | 1997 WL 611526
...*597 However, if any health care provider described in this paragraph is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider.” . While section 46.021, Florida Statutes, does provide that no cause of action dies with the claimant, the wrongful death statute specifically limits the category of damages recoverable by a decedent’s estate....
CopyPublished | Supreme Court of Florida | 1969 Fla. LEXIS 2141
authority of Fla.Stat., § 45.11 (now Fla. Stat., §
46.021, F.S.A.), by the daughter of Menda Marie Hill
CopyPublished | District Court of Appeal of Florida | 1974 Fla. App. LEXIS 8345
damage recoverable under Florida Statute 45.11 [now §
46.021] ? Examination of the briefs, confirmed at oral
CopyPublished | Supreme Court of Florida
...On the one hand, the survival statute applies when a person dies
- 14 -
while possessing a cause of action against another person, but the
harm caused by the other person is not the cause of death. The
survival statute provides in full:
46.021 Actions; surviving death of party.—No
cause of action dies with the person. All causes of action
survive and may be commenced, prosecuted, and
defended in the name of the person prescribed by law.
§ 46.021, Fla....
...decedent’s pain and suffering the survivors’ pain and suffering as
an element of damages.” Id. Martin also noted that the new Act
evinced “an unmistakable legislative intent to incorporate . . . the
survival action formerly maintainable under Section 46.021.” Id....
CopyPublished | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 18404, 2011 WL 5832338
...The pleading in the circuit court did not "claim that [the husband's] death was either the result of his personal injury or the result of some independent cause." Id. at 34. "Thus, the pleadings d[id] not permit the personal injury action to be abated under section
768.20, and the action [could not] be dismissed in light of section
46.021." [1] Id....
...tives were not permitted to become parties and would not have the power to file an appeal at a later time. Without the substitution of parties, the trial court would never be able to resolve *772 this action by correctly applying sections
768.20 and
46.021 because there would never be a party who could proceed or against whom a dismissal could be entered....
...[3] We believe that if a new, separate wrongful death lawsuit is required to be filed where a personal injury lawsuit had been timely filed under Engle, it would be inequitable to bar that new wrongful death lawsuit as being untimely under Engle. Petition dismissed. CASANUEVA and CRENSHAW, JJ., Concur. NOTES [1] Section 46.021, Florida Statutes (2002-2008), addresses, generally, the survival of claims outside of the unique personal injury/wrongful death context: "No cause of action dies with the person....
...deceased); Martin,
314 So.2d at 770 ("The only logical construction of [section
768.20] is that it expresses the legislative intent that a separate lawsuit for death-resulting personal injuries cannot be brought as a survival action under [s]ection
46.021....
CopyPublished | District Court of Appeal of Florida
exploitation is an elderly or disabled person.”); §
46.021, Fla. Stat. (“No cause of action dies with the
CopyPublished | District Court of Appeal of Florida | 1968 Fla. App. LEXIS 5597
...§ 45.11 (1965), F.S.A., is not barred under Fla.Stat. §
95.11(4), F.S.A., but that the alleged breach of an oral contract [claim] is barred by Fla.Stat. §
95.11(5) (e) (1965), F.S.A. It is so ordered. . Fla.Stat. § 45.11 (1965), F.S.A., see also Fla.Stat. §
46.021 (1967), F.S.A.
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 6266
...This appeal by the City of Miami, the defendant below, is from an adverse judgment based on a jury verdict, in an action for damages filed against the City of Miami by the administratrix of the estate of Ejester Cleveland, deceased, under the survival act, § 46.021 Fla.Stat., F.S.A., and by Cleveland’s widow, under the wrongful death act, §§ 768.01 and 768.02 Fla.Stat., F.S.A., alleging the death of Ejester Cleveland was proximately caused by negligent discharge of firearms by the city’s employe...
CopyPublished | Florida 1st District Court of Appeal
...injury actions survive the death of the alleged tortfeasor, 5 but as
4 The motion also asserted that Appellant misrepresented his
substantial criminal history in his deposition testimony, but the
trial court ruled that dismissal was not warranted on that basis.
5 See § 46.021, Fla....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 4728, 1990 WL 91883
...The police department eventually released the vehicle, but commenced a forfeiture proceeding with respect to the $21,970. During the pendency of the proceedings below, Wilson died and his estate was substituted as respondent. See Fla.R.Civ.P. 1.260; see also § 46.021, Fla.Stat....
...Metro-Dade argued that the estate did not have standing to assert the fourth amendment issue, and alternatively, that the fourth amendment argument was without merit. The trial court agreed on both issues. We are unable to agree that the estate lacked standing. Wilson’s claim to the $21,970 devolved upon his estate, see § 46.021, Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 3811812, 2013 Fla. App. LEXIS 11587
...GROSS, J., and STONE, BARRY J., Senior Judge, concur. . During the pendency of this appeal, Kim Douglas, the plaintiff in the action, died of causes unrelated to this action. Her estate was substituted as a party. The appeal is not moot because of the survival statute. See § 46.021, Fla....
CopyPublished | Florida 1st District Court of Appeal
...Hall, as well as the
estate’s personal representative, Ross Evans—sued the School
Board of Escambia County. Count I alleged wrongful death under
Florida’s Wrongful Death Act, section
768.16, Florida Statutes,
and Count II alleged negligence under Florida’s Survival Statute,
section
46.021, Florida Statutes.
The School Board moved for summary judgment on both
counts, which the trial court ultimately granted....
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 18680
...r and Joan Galiardo, Liberty Mutual and others who are not parties to this appeal. In a single complaint damages were sought for the wrongful death of Diane pursuant to Section 768.02, Florida Statutes (1971) and for survivorship damages pursuant to Section 46.021, Florida Statutes (1971)....
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 6382
...Plaintiff’s decedent, who was among spectators in the median strip, was struck and killed. Plaintiff, as widow of the decedent, sued the defendants for damages for wrongful death under §§ 768.01 and 768.02 Fla.Stat., F.S.A., and in a separate suit, sought damages as adminis-tratrix of his estate, under § 45.11, now § 46.021 Fla.Stat., F.S.A....
CopyPublished | Florida 1st District Court of Appeal
...The term
“recipient” is defined in section
409.901(19), Florida Statutes
(2016), and includes a person who received medical assistance
under the Florida Medicaid program for the purposes of section
409.910. Even though a person dies, his right to an existing cause
of action does not die with him. See §
46.021, Fla....
CopyPublished | District Court, N.D. Florida | 1933 U.S. Dist. LEXIS 1869
supersedeas bond pursuant to and in conformity with section 46-21, Comp-. Gen. Laws Fla. 1927, in the sum of $4
CopyPublished | Florida 3rd District Court of Appeal | 2011 Fla. App. LEXIS 1019, 2011 WL 409015
...Brown & Williamson Tobacco Corp.,
862 So.2d 31 (Fla. 2d DCA 2003)], (“holding that, when death is the result of a personal injury, the law of Florida essentially substitutes a statutory wrongful death action for the personal injury action that would otherwise survive under section
46.021).”) (citation omitted) (footnote omitted).
CopyPublished | District Court, S.D. Florida
...including the deplaning process, I find that defendant, Eastern Air Lines, Inc., was not negligent in this case. *253 4. This is a survival action by Freada Gilbert’s personal representative, brought pursuant to the provisions of Florida Statutes § 46.021, F.S.A....
CopyPublished | District Court of Appeal of Florida
“[n]o cause of action dies with the person.” §
46.021, Fla. Stat. (2022). “All causes of action survive
CopyPublished | Florida 4th District Court of Appeal
...entitlement to punitive
damages. The second phase was reserved for the determination of the
proper amount of punitive damages, if any.
2 Plaintiff’s alternative survival claim is dubbed a “survival” claim due to the
survival action statute, section 46.021, Florida Statutes (2007), which preserves
actions the decedent filed or may have filed prior to his or her death....
CopyPublished | District Court, S.D. Florida | 2015 U.S. Dist. LEXIS 101852, 2015 WL 4638602
...Plaintiffs allege violations of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 , et. seq., the Florida Fair Housing Act (“FFHA”), Fla. Stat. §
760.20 , et seq., as well as claims of negligence under the Florida Wrongful Death Act (“FWDA”), Fla. Stat. §
768.20 , and the Florida Survival Statute, Fla. Stat. §
46.021 ....
CopyPublished | Court of Appeals for the Eleventh Circuit | 2015 U.S. App. LEXIS 5657, 2015 WL 1546522
...1975).
Graham’s second-amended complaint also sought damages under the Florida Survival
Statute. That statue permits a decedent’s personal representative to recover on the basis of the
decedent’s pain and suffering, medical expenses, and loss of earnings, among other things. Fla.
Stat. §
46.021; see also Martin,
314 So.2d at 767....
CopyPublished | District Court of Appeal of Florida | 1977 Fla. App. LEXIS 15392
...* * * * * * “Concerning the second contention, we believe that the new right of surviving close relatives to recover for their own pain and suffering brought about by the wrongful death of a decedent is a reasonable alternative to dividing among the survivors the amount formerly recoverable under Section 46.021, Florida Statutes, for the decedent’s pain and suffering, if any.” (Emphasis supplied.) Following Martin the Supreme Court, in White v....
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 5857
...Plaintiff filed an action as administra-trix of her deceased child’s estate, in which she claimed damages for pain and suffering endured by the infant, and for the loss of prospective estate. At various points in the *774 record this suit was referred to as a survival action, under Section 45.11, F.S.1965 (now Section 46.021, F.S.1967, F.S.A.)....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 14168
...We have consolidated these appeals for efficient disposition. The complaint arising out of the fire at the Jolly residence in Key West, Florida, was brought by Frank M. Jolly as administrator of the estate of Cora A. Jolly, deceased, under the survival statute, § 46.021, Fla.Stat., and by Frank M....
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 5766
...The child of the original plaintiff in this action, brought under Section 768.03, Florida Statutes, F.S.A., was killed in an accident which took the life of the mother as well. After filing this suit the plaintiff died and his administrator moved for substitution under Section 46.021, Florida Statutes, F.S.A....
...However, it has been held in the Third District that an action for punitive damages survives. Atlas Properties, Inc. v. Didich, Fla.App.1968,
213 So.2d 278 . Abatement of the action would place a possible premium on delay. Survival of the action seems clearly consonant with Section
46.021, Florida Statutes, F.S.A., which says: “No cause of action dies with the person....
CopyPublished | District Court, M.D. Florida
...Whether Plaintiff Can Recover Both Wrongful Death and Survival Damages Based on Separate Injuries Defendants' second argument is that the Court erred in determining that Plaintiff could recover damages under both Florida's Wrongful Death Act, §§
768.16 - 768.27, Fla. Stat., as well as under Florida's survival statute, §
46.021, Fla....
...116). The Court begins with the relevant statutes. Florida's survival statute states: "No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law." § 46.021, Fla....
...a personal injury that results in the decedent's death. "[W]hen death is the result of a personal injury, the law of Florida essentially substitutes a statutory wrongful death action for the personal injury action that would otherwise survive under section 46.021." Niemi v....
...When this issue is unresolved, the law permits a plaintiff to allege alternative theories."). "[T]he intent of the amended Wrongful Death Act is that 'a separate lawsuit for death-resulting personal injuries cannot be brought as a survival action under Section 46.021." Williams v....
