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Can I still Sue if the Driver is Sent to Jail after a Deadly Crash in Florida?

What happens when a loved one is killed in an auto accident by a drunk driver or is charged with manslaughter? Does this affect the options of those left behind? Can they still make a claim for wrongful death?

Typically, in a wrongful death claim, the at-fault driver hasn’t committed a crime or is charged with a homicide. Those making the claim just have to prove that the driver was negligent. To prove this, the family must show that the driver failed to use the proper care and that failure resulted in the death of the victim. After this is established, then the family must show how the death has affected them emotionally, physically and financially.

Criminal Conviction and Restitution

When the person is drunk and charged with a DUI and possibly a vehicular homicide, many wonder how this affects their wrongful death claim. If the person is convicted, then in many states, the court will require financial restitution from the defendant to the victim’s family.

This usually consists of certain sums of money allowed under the criminal statue such as medical bills, property damage and lost time from work. This doesn’t affect a civil suit against the person as the laws are different for civil and criminal cases.

This means that the victim’s family will still have the right to make a civil claim for damages based on a wrongful death, and even if the criminal court orders the defendant to pay criminal restitution, any funds paid to the victim’s family will not have to be paid back nor will the defendant be given credit for those payments against the amount owed in a civil suit.

What if the Defendant is Found Not Guilty?

Sometimes a person charged with DUI or vehicular homicide will win their court case and be found not guilty. When this happens, then there is the worry that the civil court will look at the not guilty charge and dismiss the civil claims against the defendant.

However, by law in all states, a criminal conviction or acquittal can’t be used in a civil case to either determine fault or absolve the defendant of their liability. Again, this is because the two systems—criminal and civil—are separate and operate under their own laws, court rules and precedence.

Making a Wrongful Death Claim

A wrongful death claim is made in civil court and operates under the doctrine of negligence. If the defendant is found to have acted carelessly and without due caution to the deceased, and that carelessness and lack of caution caused the death of the person, then the defendant is liable to the family of the deceased.

Who can Make a Wrongful Death Claim?

The law requires that the person making the claim have some legal relationship with the person such at blood related (immediate family), adoption or marriage. This allows anyone such as a spouse, sibling, parent child or other close family member to seek compensation for their loss.

However, the person making the claim not only has to prove that the other person caused their death through their negligence, but that they were financially harmed somehow because of the death. Most often, the estate of the deceased makes the claim, and all those who had compensable losses can share in the award.

Is an Attorney Needed to Make a Wrongful Death Claim?

In most states, a legal representative of someone’s estate is needed to file a wrongful death claim. This is typically a court-appointed administrator of the estate, which is often someone named in a will. However, this person doesn’t have to be an attorney.

When an estate is involved, there are certain laws that need to be followed to ensure that everyone that has a claim be acknowledged and given notice. Failure to do so can result in the representative being sued. Also, there are certain deadlines and form requirements for filing a civil suit for wrongful death. A mistake in any one of these can possibly harm the case.

Who Pays in a Civil Wrongful Death Case?

Some wonder if the incident was a crime that it might not be considered an “accident” and then the person’s insurance won’t pay for the damages. However, in all states, an insurance policy will pay for damages that their client is liable for as long as it’s related to driving the insured car.

If the defendant was driving without insurance, then the person can be sued and a judgment entered against him, but without an insurance company paying for the judgment, many times the victims are unable to collect.

However, there are options with the deceased’s own insurance policy. If the victim had an auto insurance policy, and if the policy had certain provisions, the family may be able to collect some of the compensation allowed under the law. Those options are:

  • Medpay: This is a provision that drivers can get on their own policy that will pay for medical bills regardless of who is at fault or who is injured so long as the insured or their vehicle is involved.
  • Personal Injury Protection (PIP): This works similar to medpay, but it pays medical bills and other damages like pain and suffering and loss of wages. It also pays out regardless of who was injured or at fault so long at the insured or their vehicle is involved.
  • Uninsured/Underinsured (UM/UIM):

    Most insurance policies have uninsured/underinsured provisions that will pay those covered by the policy for all personal injury damages if the other driver is underinsured or has no insurance. This can include when a hit-and-run driver is never found, so long as they were at fault in the accident.

Almost all states require their drivers to either have insurance or proof that they could pay and amount equal to the minimum policy limits in that state. Only one state, Virginia, does not require their drivers to pay for an insurance policy, however, they have to pay fee of $500 a year if they do not have insurance.

Some states require either UM/UIM, PIP or medpay while others do not. In all states, the insurance company will sell the driver an add-on policy provision if it’s not required by law.

Contact RHINO Lawyers

If a loved one was killed by a negligent driver, contact Tampa's Auto Accident Lawyers today for a free consultation and case evaluation. In many cases, there is more than just one negligent party. We're competent and compassionate lawyers who will advise you of options in your best interest. If retained, we'll hold everyone accountable who contributed to the loss of your loved one.


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Rhino Lawyers, Personal Injury Lawyer, Tampa, FL


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