Frequently Asked Questions — Wrongful Death in Cape Coral, FL

What is the deadline to file a wrongful death case in Florida?

Two years from the date of death under Florida Statute § 95.11(4)(d). For medical malpractice wrongful death specifically, the deadline is two years from discovery (or when it should have been discovered), capped at four years from the incident under § 95.11(4)(b). Missing these deadlines permanently bars the claim. Complex cases — medical malpractice especially — require experts and investigation that can take 6-12 months, so the practical window for starting work is much shorter than two years.

Who can file a wrongful death lawsuit in Florida?

Under the Florida Wrongful Death Act (§§ 768.16-768.26), only the personal representative of the decedent's estate can file. If your loved one died without a will, a Lee County probate proceeding must first appoint a personal representative, which takes 30-60 days. The personal representative files on behalf of the decedent's surviving spouse, minor children, adult children, parents, and any blood relatives wholly or partly dependent on the decedent for support.

How much does it cost to hire a personal injury attorney in Florida?

Personal injury cases in Florida are handled on a contingency fee basis — you pay nothing unless we recover compensation for you. Florida law (Rule 4-1.5(f)(4)(B) of the Rules Regulating the Florida Bar) sets presumptively reasonable contingency fee percentages: 33⅓% for recoveries before filing suit or within 90 days of filing, 40% after that point, with adjustments for appeals and certain case types. Costs (filing fees, expert witnesses, deposition transcripts, medical records) are advanced by the firm during the case and reimbursed from the recovery. If we don't recover, you owe nothing for fees OR costs. We review the fee agreement in detail before any work begins.

How long will my Lee County personal injury case take to resolve?

Timeline varies significantly based on case type and complexity. Simple claims with clear liability and modest damages may settle in 3-6 months. Complex cases — wrongful death, medical malpractice, disputed liability, severe injuries still under active treatment — typically run 12-36 months. The longest-running cases involve multiple defendants, insurance coverage disputes, or trial. As a general rule, we advise clients not to settle before reaching 'maximum medical improvement' (MMI) — the point where doctors can evaluate the permanent effects of your injuries. Settling before MMI almost always undervalues a case.

What if I'm partially at fault for the accident?

Florida follows a modified comparative negligence rule (Florida Statute § 768.81) as of 2023. If you are 50% or less at fault, you can still recover damages — but your recovery is reduced by your percentage of fault. For example, if damages are $100,000 and you are 20% at fault, you recover $80,000. If you are more than 50% at fault, you recover nothing. (Note: this is different from the pre-2023 rule of 'pure comparative negligence' where you could recover even at 90% fault — but cases involving incidents before March 24, 2023 may still be governed by the old rule.) Fault allocation is often the most hotly-contested issue at trial.

Do I have to go to court?

Most personal injury cases settle without a trial — industry data suggests over 90% resolve through negotiation, mediation, or arbitration. That said, willingness to go to trial is the single biggest factor in getting a fair settlement. Insurance companies track which firms actually try cases versus which firms fold at the courthouse door. Martin Law Firm tries cases. Steven Martin has 20+ years of Twentieth Judicial Circuit trial experience. This track record matters when negotiating with insurance companies who've seen our verdicts.

I was injured but didn't go to the hospital. Can I still have a case?

Possibly — but it's an uphill battle, especially in the era of stricter insurance scrutiny. Not seeking immediate medical attention is one of the most common reasons insurance companies deny or low-ball claims. If you have a developing injury and haven't been seen medically, see a doctor as soon as possible (today). Document everything. For soft-tissue and delayed-onset injuries, medical records within 14 days of an incident carry much more weight than records obtained later. Call us even if you haven't been to the doctor yet — we can advise on next steps and help preserve your options.