SUSAN M. RAHN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES D. RAHN, DECEASED, APPELLANT,
v.
AMP INCORPORATED, A FOREIGN CORPORATION, APPELLEE
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The court held that the two-year statute of limitations for a wrongful death action commences on the date of the decedent's death, not the birth of a posthumous child.
A wrongful death action was filed more than two years after the decedent's death but within two years of the birth of his posthumous child. The trial …
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PER CURIAM.
We find no error in the trial court holding that the two-year statute of limitations for wrongful death commenced upon the date of the death of the deceased. Section 95.11(4)(d) Florida Statutes (1977); Walker v. Beech Aircraft Corporation, 320 So. 2d 418 (Fla. 3d DCA 1975); Fletcher v. Dozier, 314 So. 2d 241 (Fla. 1st DCA 1975). This is true notwithstanding the fact that a posthumous child is not born until five and a half months after his father’s death.1 The action for wrongful death is purely statutory. Variety Childrens Hospital v. Perkins, 445 So. 2d 1010 (Fla.1983); Parker v. City of Jacksonville, 82 So. 2d 131 (Fla.1951); Moorey v. Eytchison & Hoppes, Inc., 338 So. 2d 558 (Fla. 2d DCA 1976). The personal representative of the estate of the deceased is authorized to institute such an action. Section 768.20, Florida Statutes (1977).
Section 768.21, Florida Statutes (1977) reads in part as follows:
“All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged.” (emphasis added).
The action being purely statutory, it should have been commenced within the statutory period authorizing such, to wit: 2 years from the death, even though as to the potential beneficiary, the posthumous child, it may be abated pending his or her birth. Therefore the final summary judgment here under review be and the same is hereby affirmed.
Affirmed.
. The cause of action involved in this litigation was instituted without the two-year period from the date of the death of the deceased but within a two-year period from the birth of the posthumous child.
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Berisford v. Jack Eckerd Corp., 667 So. 2d 809 (Fla. 4th DCA 1995)…The pharmacy contends that the two-year wrongful death statute applies so that this cause of action would run from the date of death. See § 95.11(4)(d); Arthur v. Unicare Health Facilities, Inc., 602 So. 2d 596 (Fla. 2d DCA 1992); Rahn v. AMP Inc., 447 So. 2d 929, 930 (Fla. 3d DCA 1984). We need not decide which statute of limitations applies because, but for the issue of fraudulent concealment, we would affirm summary judgment under either statute of limitations. Whether plaintiffs cause of action runs fro…
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Ellis v. Humana OF Fla., Inc., 569 So. 2d 827 (Fla. 5th DCA 1990)…of decedent’s death) is a survivor under the act. The rights of such child, inchoate at the time of the wrongful death, become fully vested upon the occurrence of its live birth. This holding seems consistent with the reasoning in Rahn v. AMP, Inc., 447 So. 2d 929 (Fla. 3rd DCA 1984) (an action [*829] for wrongful death brought by a posthumous child must be brought within two years from the death of the decedent not from the birth of the child) and Whitefield v. Kainer, 369 So. 2d 684 (Fla. 4th DCA 1979) (a p…
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Larusso v. Garner, 888 So. 2d 712 (Fla. 4th DCA 2004)…of decedent’s death) is a survivor under the act. The rights of such child, inchoate at the time of the wrongful death, become fully vested upon the occurrence of its live birth. This holding seems consistent with the reasoning in Rahn v. AMP, Inc., 447 So. 2d 929 (Fla. 3d DCA 1984) (an action for wrongful death brought by a posthumous child must be brought within two years from the death of the decedent not from the birth of the child) and Whitefield v. Kainer, 369 So. 2d 684 (Fla. 4th DCA 1979) (a posthumou…
Authorities Cited
- Variety Child's. Hosp. v. Perkins, 445 So. 2d 1010 (Fla. 1983)
- Moorey v. Eytchison & Hoppes, Inc., 338 So. 2d 558 (Fla. 2d DCA 1976)
- Mrs. Kathy M. Fletcher v. L. L. Dozier, Jr., M.D., 314 So. 2d 241 (Fla. 1st DCA 1975)
- Wis. Real Est. Inv. Tr. v. Taylor, 320 So. 2d 418 (Fla. 4th DCA 1975)
- Parker v. City OF Jacksonville, 82 So. 2d 131 (Fla. 1955)