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In an appeal handled by Mathew Gutierrez and Juan Bauta of The Ferraro Law Firm, the Fourth District Court of Appeal issued a decision partially reversing the dismissal of a wrongful death case. A portion of the opinion is in conflict with a decision by the Fifth District Court of Appeal regarding the eligibility of a surviving widow to collect damage under Florida’s Wrongful Death Act. The law firm has appealed this portion to the Florida Supreme Court.
Under Florida’s Wrongful Death Act, when a person dies due to the negligent act of another, the surviving spouse may seek damages by filing a “wrongful death” lawsuit. Damages generally include compensation for loss of consortium. If there is no surviving spouse, then the children can file a claim for loss of consortium of the deceased parent.
Contrary to every court in Florida, the Fourth District Court of Appeal recently upheld the decision of a lower court that determined a couple must be married at the time of the accident for the surviving spouse to collect loss of consortium damages.
The same appeals court ruled in favor of surviving children being able to collect loss of consortium damages even if there is a surviving spouse if the surviving spouse cannot recover because she or he was not married to the injured party at the time of the injury that caused the death.
The Couple Must be Married at the Time of the Accident for the Surviving Spouse to Collect Loss of Consortium Damages
Florida law defines loss of consortium damages as compensating the loved one for “the permanent loss of services, comfort, companionship, and society.” The recent case involved a man who was injured due to a 40-year-old exposure to asbestos. The injury became apparent when he was diagnosed with mesothelioma on May 22, 2015.
Two months after the diagnosis, he got married to his long-time companion. About two weeks after the marriage, the man filed a personal injury lawsuit. He died in November 2015, four months after filing his lawsuit. His surviving spouse and children then pursued a wrongful death action, as is allowed by Florida law. Both requested damages for loss of consortium.
The lower court, in a decision upheld by the appeals court, held that for a spouse to be considered a “surviving spouse” and eligible to collect loss of consortium damages, the couple must have been married at the time the decedent was injured. It doesn’t matter how long the couple may have been married after the injury, or how long they may have been together prior to the accident and prior to the marriage, if they were not legally married at the time of the accident, the surviving spouse may not collect damages for loss of consortium.
The reasoning is that a person cannot marry into a lawsuit. This is based on the common law, which is law that developed through court decisions and not by statutes enacted by legislatures. Thus, since the wrongful death statute does not specifically state that the surviving spouse can collect damages if the spouses were not married at the time of the accident, the common law applies.
Therefore, this appeals court upheld the decision of the lower court that decided the spouse was not a “surviving spouse” under the wrongful death statute since the couple was not married at the time of the injury and therefore, could not collect loss of consortium damages.
Surviving Children May Collect Loss of Consortium Damages if the Surviving Spouse is Deemed Ineligible
The lower circuit court ruled that the children of the decedent could not collect loss of consortium damages since there was a surviving spouse even though that spouse was barred from recovery since she was not married to the decedent at the time of the injury.
The appeals court disagreed with the lower court and held that the defendant could not at one point in the litigation claim the spouse was not a surviving spouse under the common law and then, in order to deny damages to the children claim they were ineligible since there was a surviving spouse under the wrongful death statute.
Therefore, the appeals court sent the case back to the trial court for trial on liability and consortium damages for the surviving adult children.
Two District Courts of Appeal in Conflict
This issue is not settled because the , the Fifth District Court of Appeals came to the opposite decision and decided a spouse qualified as a surviving spouse even though she was not married to the decedent at the time of the injury.
Due to the differences in the two opinions, the Fourth District Court certified the conflict. This means the Supreme Court has discretionary jurisdiction to hear a case if a petition for review is requested.
Frequently Asked Questions
Frequently Asked Questions
01.
Who can file a wrongful death case in Florida and beyond?
02.
How long do I have to file a wrongful death lawsuit?
The statute of limitations is the time limit for filing a wrongful death lawsuit, which varies by state. In most cases, surviving family members have two to four years from the date of death to file a case, though some jurisdictions may have different deadlines. In Florida, the statute of limitations for a wrongful death case is two years from the date of death. These timelines are strictly enforced, so it’s important to consult a wrongful death lawyer as soon as possible to protect your right to seek compensation.
03.
What types of damages can be recovered in a wrongful death suit?
Wrongful death damages typically cover the financial, emotional, and personal losses experienced by surviving family members. These may include medical bills incurred before death, funeral and burial costs, lost wages and benefits the deceased would have contributed, and non-economic damages for the loss of companionship, guidance, and emotional support. In cases of gross negligence or particularly harmful behavior, punitive damages may also be awarded to hold the defendant accountable.
04.
How do I prove wrongful death and establish liability?
To prove wrongful death, the plaintiff must show that the defendant owed a duty of care to the deceased person, that the defendant breached this duty through negligence or a negligent act, and that this breach directly caused the death that occurred. Evidence might include witness statements, expert testimony, safety reports, medical records, and documentation showing how the defendant’s actions deviated from a reasonable standard of care.
05.
Will my wrongful death action settle or go to trial?
Most wrongful death cases are settled out of court, giving families financial compensation faster and avoiding the stress of a trial. These settlements usually come from negotiations with the defendant’s insurance company. If a fair settlement isn’t reached, the case can go to trial in civil court.
06.
Can Ferraro Law handle my case if I live outside of Florida?
Absolutely. Our wrongful death attorneys have experience handling cases both in Florida and across the country. We carefully evaluate the relevant state laws to ensure the appropriate party files the case. This approach safeguards the rights of all eligible family members and beneficiaries, helping them pursue justice and financial compensation for their loved one’s preventable death.
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When individuals and families face the challenges of mesothelioma and asbestos exposure—coping with complex treatments, escalating costs, and emotional strain—they turn to Ferraro Law for clarity, guidance, and steadfast support. Through meticulous case preparation, empathetic counsel, and strategic representation, our attorneys build compelling cases that secure meaningful settlements to cover medical expenses, provide financial relief, and offer a path toward stability during difficult times.
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What really set them apart was their communication. I was kept informed at every stage — no chasing down updates, no wondering what was happening with my case. Calls and emails were returned promptly, and they proactively reached out whenever there was a development.
The professionalism of the entire team — from the attorneys to the support staff — was exceptional. Everyone I interacted with was kind, compassionate, and genuinely invested in my well-being, not just the outcome of my case.
And the outcome? Better than I could have hoped for. They fought hard on my behalf and secured a result that truly reflected the impact this injury had on my life.
You could ask for no better firm or attorney.
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What truly stood out was his ability to navigate complex situations with confidence and deliver results that exceeded my expectations. He was not only highly knowledgeable but also genuinely committed to protecting my best interests.
If you’re looking for an attorney who is sharp, responsive, and truly operates at a high level, I highly recommend him without any hesitation.
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