What if both drivers die in a car accident?

It can be the case in a serious automobile accident between two or more vehicles that not only will the driver who was not at fault dies, but also the one who caused the accident. We have addressed the topic of wrongful death in previous posts, but what about the situation in which the person who would otherwise be the defendant dies in the same crash as the wrongful death victim?

The answer lies in Florida statutory law, specifically Section 46.021 of Title VI, Civil Practice and Procedure, which provides for what the law refers to generally as a survival of claims action.

The Florida legislature has seen to it since the 19th Century that the death of a person who was potentially liable to someone else does not act as a bar to legal claims. Rather, the law states that a new defendant will effectively step into the shoes of the deceased, this new defendant being a person "prescribed by law". What this means in actual practice is that the estate of the deceased becomes the defendant, just as the deceased potential plaintiff can still have a cause of action via a wrongful death lawsuit.

Although seemingly simple in concept, an action against the estate of a deceased defendant can still present complex issues of service of process, legal discovery, and more. The lack of living witnesses can at times also pose hurdles to overcome when it comes to establishing who was at fault in a fatal motor vehicle accident.

A plaintiff's personal injury attorney who is experienced with the application of both Florida statutory law and court cases that have interpreted it can help plaintiffs – both living and those who are being represented in a wrongful death action – to identify the causes of action and damages they may be entitled to when the person who would otherwise be the defendant is unavailable to be sued.