Florida’s Fourth District Court of Appeal recently held that to recover for loss of consortium under the Florida Wrongful Death Act, a surviving spouse must be married to the decedent at the time of injury—not the time of death. In so holding, the Fourth District, in Ripple v. CBS Corp., 337 So. 3d 45, 48 (Fla. Dist. Ct. App. 2022), review granted, No. SC22-597, 2022 WL 3226332 (Fla. Aug. 9, 2022), couched its opinion next to the Fifth District’s opinion in Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212, 217 (Fla. Dist. Ct. App. 2018), certifying conflict between the two decisions. As a matter of first impression, the Fourth District also held that if a spouse were barred from recovery, because they married the decedent post-injury, then the decedent’s adult children could recover for consortium-type damages.
Richard Counter was diagnosed with mesothelioma roughly sixty years after he was exposed to asbestos. Shortly after his diagnosis, he married his long-term girlfriend and subsequently filed common law negligence and strict liability claims against multiple defendants. Counter died from mesothelioma months after filing. His estate amended his personal injury lawsuit to a wrongful death action, seeking recovery for the benefit of his newly wedded widow and adult children.
In Florida, wrongful death claims are governed by the Florida Wrongful Death Act. Fla. Stat. §§ 768.16 – 768.26. The Act simply defines survivors as “the decedent’s spouse, children,” and a few others. Fla. Ann. Stat § 768.18. Damages are available to each survivor for “lost support and services from the date of the decedent’s injury to her or his death”; but damages for loss of “companionship and protection and for mental pain and suffering from the date of injury” are available only to a surviving spouse, while similar damages for the decedent’s non-minor children are available only “if there is no surviving spouse….” Fla. Ann. Stat § 768.21.
Fourth District Court of Appeal’s Decision
The Fourth District affirmed a lower court decision granting summary judgment against decedent’s surviving spouse, who was barred from recovery based on its decision in Kelly v. Georgia-Pac., LLC, 211 So. 3d 340 (Fla. Dist. Ct. App. 2017). The decedent in Kelly was diagnosed with mesothelioma four decades after he was exposed to asbestos but married only a few years after his exposure. The Kelly court framed the issue as whether the Florida Wrongful Death Act abrogated the common law, which barred recovery for loss of consortium unless the claimant was married to their spouse at the time of injury, and affirmed an order dismissing plaintiff’s loss of consortium claim.
In Ripple, The Fourth District elaborated on its position in Kelly. It found that the Act incorporated the common law marriage before injury rule because the statute did not explicitly and clearly change the common law or was not “so repugnant to the common law that the two cannot coexist.” To the Fourth District, the common law rule merely limited the circumstances for recovery and the phrase—from the date of injury—plainly indicated the legislature’s anticipation of an existing, pre-injury marriage. Death, according to the court, was not a distinction which allowed recovery under the Act that was barred by the common law.
The Ripple court rejected the Fifth District’s Domino’s opinion. In Domino’s, the decedent was injured in a car accident, immediately became a quadriplegic, filed a lawsuit, got married, and died—all within roughly one year of his injury. There, the Fifth District relied on the common meaning of survivor instead of the common law marriage before injury rule. For it, a survivor was determined at death and the language “from the date of injury” determined not who could recover, but what could be recovered—loss of consortium damages measured from the date of injury.
On a separate issue, the Fourth District held that judicial estoppel prevents a party from prevailing on a specific argument in one phase of the proceedings only to use a contradictory argument in another phase. The court rejected the notion that a spouse could be disqualified from being a surviving spouse under § 768.21(2) only to be characterized as a surviving spouse under § 768.21(3), which provided consortium-type recovery for adult children only in the absence of a surviving spouse.
The Supreme Court of Florida is poised to decide the issue. It will undoubtedly attempt to avoid policy reasoning as it decides statutory interpretation. If the Act, when providing surviving spouses consortium-type damages “from the date of injury,” does not directly conflict with the common law, then the legislation will be found to lack clearly expressed intent to override the marriage before injury rule. If the language is ambiguous, then the Florida Supreme Court will look to legislative history and other tools of statutory construction to decide whether the meaning of the statute can coexist with the common law.
Strong arguments exist on both sides of the issue. The plain and ordinary meaning of surviving spouse seems well accepted, and language providing recovery from a date simply suggests from that point forward. Furthermore, the Act’s language may simply explain that consortium-type damages begin on the date of injury and not the date of death, the only other moment mentioned in the Act. Alternatively, the Florida Wrongful Death Act may be found to account for latent injuries that went unconsidered by the common law, which largely pre-exists American toxic tort law and its associated latent injuries.
Counsel throughout the United States should take note of the Supreme Court of Florida’s upcoming decision on the common law marriage before injury rule, especially in states with similar wrongful death statutes. Beyond that, Ripple serves as a reminder for carefully crafting arguments that are consistent throughout different phases of litigation.