In Ripple v. CBS Corporation, et. al., the Florida Supreme Court held a surviving spouse is entitled to recovery for wrongful death under the Florida Wrongful Death Act (the Act), codified at Fla. Stat. §§ 768.16-768.26 (2015), even if their marriage to decedent occurred after decedent’s injury. This ruling has significantly redefined the scope of wrongful death claims and supersedes a longstanding common law doctrine in Florida that historically barred such recoveries.

Richard D. Counter was diagnosed with mesothelioma on May 22, 2015. He married his longtime girlfriend, Jennifer Ripple, on July 4, 2015. On July 23, 2015, Counter filed a personal injury action against numerous defendants alleging exposure to asbestos from the 1950s through the 1990s which he believed caused his mesothelioma. Counter passed away on November 1, 2015.

Ripple, the personal representative of Counter’s estate, amended the personal injury complaint to replace the common law personal injury claims with wrongful death claims under the Act. Defendants moved for judgment on the pleadings, arguing that Ripple could not recover damages under section 768.21(2) of the Act because she was not married to Counter at the time of his alleged asbestos exposure. This was based on Florida’s common law rule that “a party must have been legally married to the injured person at the time of the injury in order to assert a claim for loss of consortium.” Fullerton v. Hosp. Corp. of Am., 660 So. 2d 389, 390 (Fla. 5th DCA 1995) (quoting Tremblay v. Carter, 390 So. 2d 816, 817 (Fla. 2d DCA 1980)). The trial court agreed with the defendants and granted their motion for judgment on the pleadings as to Ripple’s damages claim under section 768.21(2). Ripple appealed, and the Fourth District Court of Appeal affirmed the trial court’s order, holding that Ripple could not recover damages as a surviving spouse under section 768.21(2) because she was not married to Counter at the time of his injury. The Florida Supreme Court granted review, aiming to resolve a split between the lower courts.

The Florida Supreme Court ultimately held that Ripple did indeed constitute a surviving spouse under section 768.21(2) and was eligible to recover damages. The Court began by analyzing the text of section 768.21(2), which states: “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 injury.” Because the Act does not define the term “surviving spouse,” the Court used the phrase’s ordinary meaning, which is “a spouse who outlives the other spouse.” On that basis, the Court concluded that a surviving spouse under section 768.21(2) is a spouse at the time of the decedent’s death. Further, the Court noted that the phrase “from the date of the injury” does not limit who may recover, but only what may be recovered.

Moreover, the Court rejected the defendants’ reliance on Florida’s common law “marriage before injury” rule. The Court held that the “marriage before injury” rule is a common law defense to a cause of action based on loss of consortium. However, a surviving spouse does not pursue a distinct cause of action based on loss of consortium under the Act. To the contrary, the Act offers a standalone wrongful death claim under section 768.21(2) which is not limited to the recovery for loss of consortium, but more broadly for loss of companionship and protection and for mental pain and suffering.

The Court acknowledged that their ruling created an anomaly in that Ripple could not have pursued a common law claim for loss of consortium if Counter survived his injury due to the “marriage before injury” rule; however, because of Counter’s death from the same injury, Ripple may recover under the Act for some of the same damages that would have been unavailable to her had he survived. The Court only noted that this anomaly was a problem for the legislature, not the courts. As to whether a spouse might attempt to marry into a section 768.21(2) claim, the Court stated that a jury is in the best position to consider all the evidence, including the timing and duration of a couple’s marriage, to determine a proper award for damages. The Court ultimately concluded that Ripple was a surviving spouse under section 768.21(2) and could recover damages under the Act. The Court’s decision has significant implications for defendants sued under the Florida Wrongful Death Act in that it may significantly expand their liability. Entities defending wrongful death claims in Florida should consider this decision in their litigation strategy and closely monitor developments in other jurisdictions, as this ruling may serve as a persuasive authority for other state courts interpreting their own wrongful death statutes.