Can a Person Marry Into Consortium Damages in a Wrongful Death Claim? Florida’s Fourth and Fifth District Courts of Appeal Are in Conflict

Permitting an injured plaintiff’s spouse to claim loss of consortium where the injury in question occurred prior to the marriage would enable the spouse to marry into a cause of action. Florida’s common law rejects this inequitable result through its adoption of the marriage-before-injury rule. But does this common law doctrine apply to a claim under Florida’s Wrongful Death Act, which was created by the legislature in derogation of common law? In other words, does a “surviving spouse” have to be married to the decedent at the time of injury, rather than just at the time of death, in order to recover damages? Florida’s Fourth District Court of Appeals (“Fourth District”) answered this question in the affirmative but identified a direct conflict between Florida’s district courts on this issue and a certified conflict for the Florida Supreme Court.

The root of the “surviving spouse” conflict in Florida goes back to two primary cases: Kelly v. Georgia-Pacific, LLC, 211 So. 3d 340 (Fla. 4th Dist. Ct. App. 2017) and Domino’s Pizza, LLC v. Weiderhold, 248 So. 3d 212 (Fla. 5th Dist. Ct. App. 2018).

In Kelly, the decedent was allegedly exposed to asbestos from 1973 to 1974, married his spouse in 1976, and was diagnosed with mesothelioma in 2014. The circuit court held that based on principles of common law, a “surviving spouse” must be married to the decedent at the time of injury (i.e., at the time of the alleged asbestos exposure) to recover wrongful death damages. The Fourth District affirmed this ruling, holding that Florida’s Wrongful Death Act did not abrogate the common law principle that a spouse must be married to the decedent before the date of the decedent’s injury to recover for loss of consortium.

One year later, the Fifth District Court of Appeals (“Fifth District”) issued an opinion that directly contradicted Kelly. In Domino’s Pizza, the decedent was rendered a quadriplegic following a car accident. One month after his accident, he filed a lawsuit, and several months later, he married his spouse. Over a year after his accident, the decedent died. The decedent’s spouse sought to recover damages pursuant to Florida’s Wrongful Death Act. Under Kelly, she would have been precluded from recovering such damages because she was not married to the decedent at the time of his injury. However, the Fifth District held that she did qualify as a “surviving spouse” because she was married to the decedent at the time of his death. The Fifth District reasoned that the Wrongful Death Statute defines “survivors” as “the decedent’s spouse,” without any other limitation. It also noted that its interpretation is consistent with case law recognizing that wrongful death actions accrue at the time of the decedent’s death.

In a March 30, 2022, opinion, the Fourth District recognized the conflict between Kelly and Domino’s Pizza, but nonetheless affirmed its Kelly holding. In Jennifer Ripple, as personal representative of the estate of Richard D. Counter, deceased, v. CBS Corp., et al., 2022 WL 945776 (Fla. 4th Dist. Ct. App. March 30, 2022), the decedent was allegedly exposed to asbestos from 1950 through the 1990s. He was diagnosed with mesothelioma in May 2015, married his spouse on July 4, 2015, filed his lawsuit on July 23, 2015, and died in November 2015. He was survived by his wife and two adult children.

Consistent with Kelly, the Fourth District affirmed the trial court’s ruling that the decedent’s spouse could not recover damages as a “surviving spouse” because she was not married to the decedent at the time of injury (i.e., at the time of the decedent’s alleged exposure to asbestos). The Fourth District recognized that its holding is in direct conflict with that of Domino’s Pizza, but held that the Fifth District had failed to analyze the Wrongful Death Act under Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 918 (Fla. 1990), which requires a court to examine whether a legislative enactment (a) unequivocally states that it changes the common law or (b) “is so repugnant to common law that the two cannot coexist.” Instead of analyzing the Act under Thornber, the Fifth District “read the Act in isolation,” which, according to the Fourth District, rendered an incorrect and potentially “absurd” result. The Fourth District ultimately certified the conflict.

Relatedly, the Fourth District in Ripple also considered the ability of the decedent’s adult children to recover damages pursuant to Florida’s Wrongful Death Act, an issue of first impression. As explained above, the trial court held that the decedent’s spouse was not permitted to recover as a “surviving spouse.” At the same time, the trial court also accepted the defendants’ argument that the decedent’s adult children could not recover damages because the surviving spouse has the exclusive right to recovery. Specifically, Florida Statutes, Section 768.21(3), states that children of the decedent may recover only if there is no surviving spouse. In reviewing these arguments, the Fourth District found an “irreconcilable contradiction” in the defendants’ arguments, which were accepted by the trial court — specifically, the defendants argued that the decedent’s spouse was not a “surviving spouse” for purposes of her ability to recover damages, but that she was a “surviving spouse” for purposes of the adult children’s ability to recover damages. Abrogating this contradiction, the Fourth District held that where a spouse marries the decedent after the decedent’s injury and is therefore barred from recovering wrongful death damages, the decedent’s surviving adult children may recover such damages.

Practically speaking, Ripple highlights the direct conflict among Florida courts with respect to the definition of a “surviving spouse.” As things stand, a spouse who marries a decedent post-injury cannot recover wrongful death damages in the Fourth District but can recover such damages in the Fifth District. All eyes are on the Florida Supreme Court to resolve the confusion, contradiction and uncertainty facing some Florida litigants related to wrongful death claims.