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.