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Florida Wrongful Death Claims Question

February 9, 2010

The following is an expert answer given by Florida wrongful death claims lawyer, Joseph M. Maus, and taken from AllExperts.com, a free Q & A service on the internet:

Question: We  have filed a wrongful death lawsuit and the defense attorney has submitted a Motion for Summary Judgment to the court months ago.  My family read it and thought it was a rather weak argument by the defense and feels the judge would not dismiss this particular defendant (the case involves multiple defendants).  Recently, our attorney told us he has since spoken to the defense attorney, who told him that he will make an argument to the court on something that was never stated in the original motion document. Is the defense allowed to make amendments to the Motion for Summary Judgment already submitted or enter a completely new motion superseding the original document?  Is this highly unusual?

Also, our attorney told us that when the jury deliberates they could be given a “special  interrogatory”, that they would complete, that asks if the deceased was responsible for his death – (answer: yes or no).   Have you ever heard of this "special interrogatory"?

Answer:
Your email does not indicate what state you live in.  I am an attorney in Florida, so the laws could be different wherever you are.  Since you are represented by an attorney, your questions are best answered by that attorney as he is the person most familiar with the facts of your case, and the law that applies.

In Florida, there are no rules or laws that prohibit a party from amending their motion for summary judgment.  Many times a party moving for summary judgment will add additional evidence or arguments to an original motion, so it is not really unusual to have an "amended" motion for summary judgment.

A motion for summary judgment asks a judge to review all admissible evidence in a case, then determine whether any genuine issues (disputes) of material fact exist.  If a motion for summary judgment is granted, the case would be over, except for an appeal.  However, there are time requirements for when a moving party has to have their motion, and any record evidence submitted to the Court.  If the moving party fails to submit everything to the Court within the time requirements, the Court does not have to consider the evidence.  The reason for the time requirements is so that the non-moving party does not get blindsided by an argument that was never raised, or only raised at the last minute.

As for your question about the special interrogatory, in Florida is it referred to as "comparative negligence".  Florida has a standard jury instruction that allows a jury to consider the issue of comparative negligence.  A jury in just about every negligence based action in Florida gets to consider whether the plaintiff caused, or contributed to causing, the accident about which they are complaining.  This holds true in Florida wrongful death claims as well.

Good luck.

For more information about Florida wrongful death claims, contact the Florida wrongful death attorneys at the law offices of Joseph M. Maus at 1-866-556-5529 or email him today.

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