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The Fourth District Court of Appeal in Florida recently interpreted Florida’s Wrongful Death Act and held that:
1) A spouse, who was not married to the decedent at the time of the negligent act which resulted in the decedent’s death, is not a “surviving spouse” under the statute and therefore cannot collect damages due to the loss of consortium.
2) If the decedent’s spouse is deemed ineligible to collect loss of consortium damages, it is as though there is no surviving spouse and the adult children, according to the terms of the statute, are allowed to pursue the collection of loss of consortium damages.
The first holding conflicts with an opinion from the Fifth District Court of Appeal which determined a surviving spouse can collect loss of consortium damages even if the spouses were not married at the time of the injury which caused the death. The Fourth District certified the conflict between the two districts.
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Interpretation of the Wrongful Death Act
The District Court of Appeal of the State of Florida, Fourth District, was recently faced with two issues arising from a wrongful death suit brought by the personal representative of the Estate of Richard D. Counter.
1) Can a spouse, who married the decedent after the injury that eventually caused the death of the decedent, recover damages for loss of consortium under Florida’s Wrongful Death Act section 768.21(2)?
2) If that spouse is precluded from recovering loss of consortium damages under section 768.21(2), can the decedent’s surviving adult children collect damages under section 768.21(3) for loss of parental companionship.
The Appellate Court resolved these issues in Jennifer Ripple, as personal representative of the Estate of Richard D. Counter, deceased v. CBS Corporation, General Electric Company, The Goodyear Tire & Rubber Company, John Crane Inc., and Warren Pumps, LLC.
Issue 1. The Circuit Court for the Seventeenth Judicial Circuit, Broward County, ruled that a spouse who marries the decedent after the injury cannot collect for loss of consortium damages because a spouse “cannot marry into a cause of action.”
Although the Wrongful Death Act does not state it this way, the District Court conducted a comprehensive analysis of the common law and determined that the Wrongful Death Act did not replace the common law. Accordingly, the District Court of Appeal affirmed the lower court decision that ruled the decedent’s widow was not eligible for loss of consortium damages since she married the decedent after he suffered the injury which caused his death.
Issue 2. The Circuit Court also ruled that the decedent’s adult children could not collect damages since there was a surviving spouse “albeit a spouse who is herself barred from recovery…”
The District Court of Appeal reversed this decision, holding that judicial estoppel prevented the defendants from taking opposing views in the same litigation. The defendants could not on one hand claim that the spouse was not a surviving spouse under the statute, so she could not collect loss of consortium damages only to then claim she was a surviving spouse so as to preclude the adult children from collecting damages.
A Spouse who Married a Decedent After the Injury that Resulted in Death Cannot Collect Loss of Consortium Damages under Florida’s Wrongful Death Act
Summary of Relevant Facts
From the 1950s through the 1990s, the decedent was exposed to asbestos through his work. On May 22, 2015, he was diagnosed with mesothelioma. He married Plaintiff two months later on July 4, 2015. On July 23, 2015, he filed a lawsuit for personal injury based on the asbestos exposure.
On November 1, 2015, four months after filing his lawsuit, the decedent died. He was survived by his wife and two adult children from a former marriage.
The decedent’s personal representative for the estate, his widow Jennifer Ripple, was granted leave to amend the personal injury complaint and sought damages for herself under section 768.21(2) of Florida’s Wrongful Death Act, or in the alternative, damages for the decedent’s adult children under section 768.21(3) of that same Act.
The Wrongful Death Act authorizes the decedent’s personal representative to “recover for the benefit of the decedent’s survivors…all damages, as specified in [the] act, caused by the injury resulting in death.” Survivors are defined as “the decedent’s spouse and children.”
The statute also provides that “the surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of the injury.”
Defendant’s Motion for Judgment on the Pleadings
The defendants filed a Motion for Judgment on the Pleadings arguing that Ripple could not collect damages for loss of consortium since she was not married to the decedent at the time of his death-causing injury. The Circuit Court agreed.
The Circuit Court relied on Fourth District precedent that “a party must have been legally married to the injured person at the time of the injury to assert a claim for loss of consortium.” See Kelly v. Georgia Pacific, LLC, 211 So. 3d 340 (Fla, 4th DCA 2017). “The rationale is that person may not marry into a cause of action and that a line must be drawn somewhere as to liability.”
Although the Wrongful Death Act does not specifically have language precluding a spouse who married the decedent after the death-causing injury from recovering loss of consortium damages, the Kelly Court relied on the common law and held that the statute did not replace the common law.
In coming to that decision, the District Court consulted Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla. 1990) which held that “The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard.”
Applying the principles of Thornber to this case, the District Court found that the Wrongful Death Act “does not, directly or indirectly, abrogate or supersede the common law requirement that the spouse must be married to the injured party at the time of the injury to recover for loss of consortium.”
The Appellate Court upheld the Circuit Court ruling against Ripple, the decedent’s widow, and held:
“[T]he Florida Wrongful Death Act does not clearly or explicitly abrogate or overturn the common law requirement that the decedent and surviving spouse be married prior to the date of injury to recover consortium damages. Although there may be persuasive policy reasons for superseding this common-law rule, especially in the present case where the injury is latent, such a change may only come from the legislature by statutory enactment.”
Ripple pointed out a conflict with this Fourth District opinion and urged the court to use the reasoning of the Fifth Circuit in Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212 (Fla 5th DCA 2018). In Domino’s, the Fifth Circuit held that the spouse qualified as a survivor under the Wrongful Death Act even though she married the decedent after the injury that resulted in his death.
The Fourth District Court certified conflict between Kelly and Domino’s, but also noted that the Domino’s Court failed to even mention the Thornber case so failed to conduct the required Thornber statutory analysis.
When There is No Surviving Spouse Eligible for Loss of Consortium Damages, Surviving Adult Children May Recover Loss of Parenting Damages
In this case, after winning their Judgment on the Pleadings and precluding the decedent’s widow from collecting loss of consortium damages, the defendants filed a Motion for Summary Judgment.
In this motion, the defendants completely changed course. Now, they argued that since there was a surviving spouse, the surviving adult children could not collect damages under section 768.21(3). That section of the Wrongful Death Act allows all children of a decedent to recover certain damages “if there is no surviving spouse.”
The District Court noted this is an issue of first impression but determined that the situation can best be described “as being most similar to the doctrine of judicial estoppel….Judicial estoppel is an equitable doctrine that is used to prevent litigants from taking totally inconsistent positions in separate judicial…proceedings.”
Although the current case did not involve two separate proceedings, it did involve two separate actions within the same proceeding. Judicial estoppel prevents “a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” The District Court found that this is exactly what the defendants were trying to do here.
The District Court reversed the Circuit Court’s order granting the defendant’s Summary Judgment which denied the surviving children damages. The District Court specially held:
“As a matter of first impression, we agree with the estate that, if a spouse who had married the decedent after the decedent’s injury is barred from recovering damages under section 768.21(2) of the Wrongful Death Act (per Kelly), then the decedent’s surviving adult children may recover damages under section 768.21(3) of the Wrongful Death Act. To rule otherwise would contravene section 768.17, Florida Statutes (2012), providing, “It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.” § 768.17, Fla. Stat. (2015).”
This case was handled by our office. We believe it can be helpful to those seeking damages due to the wrongful death of a spouse or parent.