Should Family Members Join My Personal Injury Action?
Posted By Robert Sparks || Mar 20, 2013
In some instances, clients have heard of cases where a spouse or child has been added to the lawsuit for separate claims that arose out of the injury to the plaintiff. As a result, when addressing a Florida personal injury action, many clients ask if their family members should be included, given the trickle-down effect and impact their injuries and damages have on their families.
Adding an additional claim is known as joining a derivative claim and is regulated by Florida Statutes. Florida Statute 627.7403 provides that any action brought under separate statutory authority that claims personal injuries must include all derivative claims arising out of the injury to the plaintiff, unless good cause is shown why such claims should be brought separately. Similar statutory and case law authority also establishes that all derivative claims involving injuries to minors should also be plead at the same time. The key aspect of the above referenced statue is the mandatory language that derivative claims must be joined.
As a result of this mandatory language as provided in Florida’s personal injury laws it is imperative that all derivative claims be analyzed and joined in the original plaintiff’s case. A party who fails to timely add a derivative claim may inadvertently bar a spouse or minor child’s ability to bring their own separate claim in the future.
Florida case law has in the past upheld dismals of derivative claims when they were not joined properly. The courts have held that it is proper to dismiss late derivative claims against the same defendant because the injured party had already pursued his/her claims against the defendant and therefore the mandatory joinder statute prohibited any subsequent derivative claims.
Because of the significant impact and Florida’s restrictions when it comes to derivative claims it is best to consult with a personal injury attorney to ensure the rights of a loved one are not being waived by not having them join the pending claim.