Thursday, February 23, 2017

Insurance -- Business auto -- Uninsured motorist -- Trial court erred in finding that an employee of the company which was the named insured in a business auto policy was entitled to underinsured motorist benefits for injuries suffered when he was struck by an automobile being driven by an underinsured motorist while he was walking in front of his employer's offices on his way into the building -- No covered autos were involved in the accident, and employee was not a named insured under the policy


42 Fla. L. Weekly D476bop of Form

Insurance -- Business auto -- Uninsured motorist -- Trial court erred in finding that an employee of the company which was the named insured in a business auto policy was entitled to underinsured motorist benefits for injuries suffered when he was struck by an automobile being driven by an underinsured motorist while he was walking in front of his employer's offices on his way into the building -- No covered autos were involved in the accident, and employee was not a named insured under the policy -- Because policy was an excess liability policy, there was no requirement that insured execute a written waiver or rejection of UM coverage -- Because employee was neither a named insured nor a resident family member of an insured, he was, at best, a class II insured who could recover UM benefits only if he was occupying or driving a covered automobile

ZURICH AMERICAN INSURANCE COMPANY, a foreign corporation licensed to do business in the State of Florida, Appellant, vs. JOHN CERNOGORSKY, Appellee. 3rd District. Case No. 3D16-689. L.T. Case No. 11-26813. Opinion filed February 22, 2017. An Appeal from the Circuit Court for Miami-Dade County, Jerald Bagley, Judge. Counsel: Conroy Simberg and Hinda Klein, (Hollywood); McIntosh Sawran & Cartaya, and Douglas M. McIntosh and Kimberly Kanoff Berman (Fort Lauderdale), for appellant. Law Offices of Hugh H. Bernstein, and Hugh H. Bernstein; Law Offices of William R. Jones, III, and William R. Jones, III; Jay M. Levy, for appellee.

(Before WELLS, SALTER and LOGUE, JJ.)

(WELLS, Judge.) Zurich American Insurance Company appeals from a final judgment entered in favor of John Cernogorsky, the plaintiff below, after a jury trial on his claim for underinsured motorist (“UM”) coverage under a business automobile liability policy issued to his employer, The Green Companies. Zurich claims that it was entitled either to a summary judgment or a directed verdict because coverage was a legal not a factual question, and because it was entitled to a judgment as a matter of law.1 We agree and reverse.

FACTS

On February 18, 2011, Mr. Cernogorsky was injured when struck by an automobile while he was walking in front of The Green Companies' offices on the way into the building. The car that struck him was driven by an underinsured motorist. After Mr. Cernogorsky demanded and received payment up to the insurance policy limits ($100,000) of the motorist that struck him, he rejected the UM policy limits ($10,000) of his own insurance and sought UM coverage under The Green Companies' policy with Zurich.2 On August 24, 2011, alleging that he was injured as a pedestrian while in the course and scope of his employment with The Green Companies, Mr. Cernogorsky sued Zurich for $1,000,000 in UM benefits. The basis of Mr. Cernogorsky's claim for UM benefits was that: (1) he was a covered individual under The Green Companies' policy because the policy covered autos not owned by The Green Companies, which according to Mr. Cernogorsky included vehicles owned by employees; and, (2) the policy provided primary coverage which included UM coverage that extended to him because The Green Companies had failed to execute a UM coverage waiver as required by section 627.727(1) of the Florida Statutes.3

In response, Zurich argued that Mr. Cernogorsky was not entitled to UM benefits because: (1) he was not a named insured under the policy issued to The Green Companies; (2) the subject policy was not a primary liability auto insurance policy, but an excess liability policy, and thus not governed by section 627.727(1), but by section 627.727(2) of the Florida Statutes4 which does not require a written rejection of UM benefits; and (3) because Mr. Cernogorsky was a pedestrian at the time of the accident he could not recover UM benefits under this policy even had such coverage been provided.

Both Mr. Cernogorsky and Zurich moved for summary judgment, but both motions were denied and this matter was set for trial solely on the coverage issue. A jury thereafter rendered a verdict in Mr. Cernogorsky's favor determining that coverage existed. Zurich's renewed motions for a directed verdict, for judgment notwithstanding the verdict, and for a new trial were denied. Zurich appeals, we reverse.

STANDARD OF REVIEW

We review the instant appeal from a final judgment interpreting the provisions of an insurance policy to determine coverage de novo. See Penzer v. Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla. 2010) (confirming that “a question of insurance policy interpretation, which is a question of law, [is] subject to de novo review”); Barcelona Hotel, LLC v. Nova Cas. Co., 57 So. 3d 228, 230 (Fla. 3d DCA 2011) (same). Where the facts are not in dispute and the language of an insurance policy is unambiguous and not subject to conflicting inferences, “its construction is for the court, not the jury.” Ellenwood v. S. United Life Ins. Co., 373 So. 2d 392, 394-95 (Fla. 1st DCA 1979). Moreover, even where an ambiguity exists, if the facts are not disputed “it is within the province of the trial judge not the jury to resolve the ambiguity as a matter of law.” See id.; see also Penzer, 29 So. 3d at 1005 (“ ‘[A] provision is not ambiguous simply because it is complex or requires analysis. . . . . ‘[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms.' ”) (quoting Garcia v. Fed. Ins. Co., 969 So. 2d 288, 291 (Fla. 2007))). Here, because neither a factual dispute nor an ambiguity was demonstrated to exist, the coverage issue raised below should have been decided by the court below and on the record below, and for the following reasons, should have been resolved in Zurich's favor.

ANALYSIS

First, Mr. Cernogorsky is not a named insured under the Zurich/Green Companies policy as he claimed below. This policy issued to The Green Companies is a package policy providing $1,000,000 in commercial general liability coverage to The Green Companies for “covered autos.” This term, as identified in this policy, encompasses either “hired autos” or “nonowned autos.” By definition, a “hired auto” covered by this policy is a vehicle leased, hired, rented or borrowed by The Green Companies. No such autos are involved in this matter. A “nonowned auto” as defined by this policy includes autos owned by employees, but only while they are being used for company business or “personal affairs” of The Green Companies:

9. Nonowned “Autos” Only

Only those “autos” you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes “autos” owned by your “employees,” partners (if you are a partnership), members (if you are a limited liability company), or members of their households but only while used in your business or your personal affairs.

Like “hired autos,” no “nonowned” autos were involved in the incident that caused Mr. Cernogorsky's injury. In fact, Mr. Cernogorsky's vehicle was not involved in the incident at all. In short, no “covered autos” were involved in this matter, thereby utterly refuting Mr. Cernogorsky's claim that he was an insured under this policy by virtue of these provisions.

As the policy confirms, the only insured under this policy is The Green Companies. The Business Auto Coverage portions of the policy state that “the words ‘you' and ‘your' as used in the policy refer to the Named Insured shown in the Declarations.” The insured named in the Business Auto Declarations is “THE GREEN COMPANIES INC (SEE NAMED INSURED ENDORSEMENT).” Not only is The Green Companies the only named insured in the policy, other portions of the policy also expressly exclude employees while using their own autos from the definition of the term “insured.”

Specifically, the Designated Insured Endorsement, which expressly applies to the Business Auto Coverage Form, provides that “[e]ach person or organization shown in the Schedule [of Coverages and Covered Autos] is an ‘insured' for Liability Coverage, but only to the extent that person or organization qualifies as an ‘insured' under the Who Is An Insured Provision contained in Section II of the Coverage Form.” (Emphasis added).5 Section II of the Business Auto Coverage Form in turn expressly excludes from the definition of the term “insured” any employee while driving his or her own vehicle:

SECTION II -- LIABILITY COVERAGE

. . . .

1. Who is an Insured

The following are “insureds”:

a. You [The Green Companies] for any covered “auto.”

b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:

. . . .

(2) Your “employee” if the covered “auto” is owned by that “employee” or a member of his or her household.

(Emphasis added).

In sum, these provisions confirm that only The Green Companies is insured under this policy for any liability that may arise from the use of a covered vehicle even if that vehicle is owned by an employee and is being used in company business. Mr. Cernogorsky is not an insured under Zurich's policy.

Secondly, the policy at issue here is not a primary liability policy subject to the waiver of UM coverage mandate imposed by section 627.727(1) of the Florida Statutes as Mr. Cernogorsky claims. The liability section of the Business Auto Coverage Form provides that Zurich will pay “all sums an ‘insured' [The Green Companies] must pay as damages because of ‘bodily injury' or ‘property damage' to which this insurance applies, caused by an ‘accident' and resulting from the ownership, maintenance or use of a covered ‘auto' [“hired autos” or “nonowned autos”].” However, that same provision also expressly excludes from such coverage bodily injury to an employee incurred during the course of his or her employment:

SECTION II -- LIABILITY COVERAGE

. . . .

B. Exclusions

This insurance does not apply to any of the following:

. . . .

4. Employee Indemnification and Employer's Liability

“Bodily injury” to:

a. An “employee” of the “insured” arising out of and in the course of:

(1) Employment by the “insured”; or

(2) Performing the duties related to the conduct of the “insured's” business; or

b. The spouse, child, parent, brother or sister of that “employee” as a consequence of Paragraph a. above.

This exclusion applies:

(1) Whether the “insured” may be liable as an employer or in any other capacity; and

(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.

The Business Auto Coverage Form also expressly states that the coverage provided to autos “owned” by The Green Companies (there are none) is primary while coverage provided as to “nonowned autos” (which includes an employee's vehicle) is excess:

SECTION IV -- BUSINESS AUTO CONDITIONS

The following conditions apply in addition to the Common Policy Conditions:

. . . .

B. General Conditions

. . . .

5. Other Insurance

a. For any covered “auto” you own, this Coverage Form provides primary insurance. For any covered “auto” you don't own, the insurance provided by this Coverage Form is excess over any other collectible insurance. . . .

Since The Green Companies owns no vehicles, coverage, if it exists at all here, would relate to “nonowned” vehicles for which this policy provides only excess coverage.6

Because the instant policy is an excess policy, there was no need for The Green Companies to execute a written waiver or rejection of UM coverage as required by section 627.727(1) of the Florida Statutes. Rather, and as section 627.727(2) of the Florida Statutes confirms, “[t]he provisions of subsection (1) which require uninsured motorist coverage to be provided in every motor vehicle policy delivered or issued for delivery in this state, do not apply to any policy which does not provide primary liability insurance that includes coverage for liabilities arising from the maintenance, operation, or use of a specifically insured motor vehicle.” § 627.727(2), Fla. Stat. (2016); see also Hampton v. Fla. Mun. Ins. Tr., 152 So. 3d 855, 856 (Fla. 4th DCA 2014) (finding the insurer “was not required to include uninsured motorist protection as part of its provisions” where the subject policy provided “excess insurance and not primary insurance for automobile accidents” and the insurer complied with section 627.727(2)); Nieves v. N. River Ins. Co., 49 So. 3d 810, 813 (Fla. 4th DCA 2010) (“A key amendment to section 627.727 occurred in 1984, when the legislature substantially rewrote subsections (1) and (2), and ‘for the first time explicitly exempted policies which did not provide primary liability insurance for specifically insured motor vehicles from the requirements set forth in subsection (1).' ” (quoting O'Brien v. State Farm Fire & Cas. Co., 999 So. 2d 1081, 1087 (Fla. 1st DCA 2009))).

We therefore reject Mr. Cernogorsky's argument that even though the Zurich policy included no UM coverage provisions, that coverage nonetheless was available to him because The Green Companies had not executed a written waiver of UM coverage. The coverage provided by the Zurich policy was excess coverage not governed by section 627.727(1) which mandates a written UM waiver. Again, no coverage was available to him under this policy.

Finally, even if UM coverage were deemed available for failure to comply with the requirements of either section 627.727(1) or 627.727(2), Mr. Cernogorsky still would be unable to recover under the Zurich policy. UM benefits extend to both the insured named in the policy and resident family members, defined as class I insureds, and to others while passengers or drivers in an insured vehicle, defined as class II insureds. See Fla. Farm Bureau Cas. Co. v. Hurtado, 587 So. 2d 1314, 1317 (Fla. 1991) (confirming that UM benefits are available to two classes of individuals: “class one consisting of the named insured and resident family members; and class two consisting of those who are insured only because they are drivers or passengers in an insured vehicle with the consent of the named insured”) (emphasis added). Because Mr. Cernogorsky was neither a named insured under the Zurich policy nor a resident family member of an insured, he cannot be a class I insured. At best, he had to demonstrate that he was entitled to recover UM benefits as a class II insured. See Varro v. Federated Mut. Ins. Co., 854 So. 2d 726, 728 (Fla. 2d DCA 2003) (“When the named insured is a corporation, it obviously can never have a bodily injury or a UM claim as well as claims for coverage for family members. The entire risk in such a situation arises from class II insureds.”).

As the Florida Supreme Court confirmed in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So. 2d 229, 233 (Fla. 1971), the seminal decision examining UM coverage, individuals may recover UM benefits as class II insureds only if they are lawfully occupying or driving a covered automobile:

[Class II insureds] are protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured automobile of the named insured with his permission or consent. This latter group is necessarily restricted to occupants of the insured automobile for the purpose of coverage identification and to show their insurable relationship to the named insured paralleling coverage for others than named insured in automobile liability policies.

See also Travelers Ins. Co. v. Warren, 678 So. 2d 324, 326 n.2 (Fla. 1996) (“[C]lass II insureds are lawful occupants of the insured vehicle who are not named insureds or resident relatives of named insureds.”); Hurtado, 587 So. 2d at 1318-19 (“Class-one insureds are covered regardless of their location when they are injured by an uninsured motorist. . . . On the other hand, coverage for class-two insureds is limited to occupancy in the insured vehicle.”); Alamo Rent-A-Car, Inc. v. Hayward, 858 So. 2d 1238, 1240 n.1 (Fla. 5th DCA 2003) (“Class II insureds include all other passengers in the vehicle who are covered only by virtue of the fact that they occupy the covered vehicle.”); Bulone v. United Servs. Auto. Ass'n, 660 So. 2d 399, 400 n.1 (Fla. 2d DCA 1995), approved, 679 So. 2d 1185 (Fla. 1996) (“Class II includes persons occupying an insured vehicle. These passengers do not pay for this uninsured motorist coverage, but receive its protection, essentially as third-party beneficiaries to the family policy, because a family member permitted them to occupy the family car.”).

It is undisputed that at the time of the incident at issue here, Mr. Cernogorsky was neither driving nor occupying any vehicle. He could not, therefore, secure UM benefits as a class II insured under this policy. See State Farm. Mut. Auto. Ins. Co. v. Bailey, 203 So. 3d 995, 998 (finding an employee was not entitled to UM coverage under a business automobile insurance policy because he was not “occupying” the employer's vehicle at the time of the accident as set forth in the policy's UM endorsement); Davis v. Fireman's Fund Ins. Co., 463 So. 2d 1191, 1192 (Fla. 2d DCA 1985) (finding a tow truck operator who was struck while changing a tire on a disabled vehicle was not entitled to UM benefits under a business automobile policy insuring the tow truck because he was not “occupying” the tow truck at the time of the accident, as required by the UM policy language); State Farm Mut. Auto. Ins. Co. v. Yanes, 447 So. 2d 945, 946 (Fla. 3d DCA 1984) (finding an employee was not entitled to UM coverage under a business automobile policy because he was not “occupying” the employer's vehicle at the time of the accident as required by the policy's UM provisions).

Because Mr. Cernogorsky was neither an insured under the Zurich/Green Companies policy nor otherwise eligible to recover benefits thereunder, the judgment below must be reversed with this matter remanded for entry of judgment in Zurich's favor.

Reversed and remanded with instructions.

__________________

1Zurich also argues the trial court erred in denying its motion for a new trial because the jury was given a dictionary definition of statutory terms and because the court precluded it from introducing evidence of legislative history. We do not, however, address these points as it is not necessary to do so to resolve this matter.

2The record also reflects that Mr. Cernogorsky also applied for, and received, workers' compensation insurance benefits from his employer.

3That statute provides, in relevant part:

No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein . . . . However, the coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.

§ 627.727(1), Fla. Stat. (2016); Tobin v. Mich. Mut. Ins. Co., 948 So. 2d 692, 694 (Fla. 2006) (stating that “[i]f an insurer fails to comply with the [provisions of section 627.727(1)], UM/UIM coverage is provided by contract as though the required coverage had been offered and accepted by the named insured as a matter of law”).

4The statute provides:

The limits of uninsured motorist coverage shall be not less than the limits of bodily injury liability insurance purchased by the named insured, or such lower limit complying with the rating plan of the company as may be selected by the named insured. The limits set forth in this subsection, and the provisions of subsection (1) which require uninsured motorist coverage to be provided in every motor vehicle policy delivered or issued for delivery in this state, do not apply to any policy which does not provide primary liability insurance that includes coverage for liabilities arising from the maintenance, operation, or use of a specifically insured motor vehicle. However, an insurer issuing such a policy shall make available as a part of the application for such policy, and at the written request of an insured, limits up to the bodily injury liability limits contained in such policy or $1 million, whichever is less.

§ 627.727(2), Fla. Stat. (2016).

5This is wholly consistent with the definition contained in the Business Auto Coverage Form itself, which similarly defines an “insured” as one who is listed under the Who Is An Insured provision of the policy:

SECTION V -- DEFINITIONS

. . . .

G. “Insured” means any person or organization qualifying as an insured in the Who Is An Insured provision of the applicable coverage. Except with respect to the Limit of Insurance, the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or “suit” is brought.

6As an excess policy, this policy provides coverage to The Green Companies for third-party claims for bodily injury or property damage caused by auto accidents in which a Green Company employee is driving his or her own vehicle while within the course and scope of his or her employment. See Tobin v. Mich. Mut. Ins. Co., 948 So. 2d 692, 697 (Fla. 2006) (“An ‘other insurance' clause describes what occurs if other insurance coverage is available for the particular loss. It describes the application and relationship that arises if multiple insurance contracts apply to the same loss. See 8A John Alan Appleman & Jean Appleman, Insurance Law and Practice § 4909, at 70 (2005 Supp.). The ‘other insurance' clause at issue in the present action provides excess coverage once the policy limits of other insurance covering the same risk are exhausted and is only intended to provide excess liability coverage to the “named insured,” . . . .”).

* * *

Insurance -- Joinder of insurer in judgment against insured -- Judgment creditor's motion to join judgment debtor's commercial general liability insurer as party to judgment was untimely where motion was not filed at time of final judgment or within the following fifteen days allowed for a motion for rehearing -- Trial court departed from essential requirements of law by joining insurer to judgment that was already rendered


42 Fla. L. Weekly D464cTop of Form

Insurance -- Joinder of insurer in judgment against insured -- Judgment creditor's motion to join judgment debtor's commercial general liability insurer as party to judgment was untimely where motion was not filed at time of final judgment or within the following fifteen days allowed for a motion for rehearing -- Trial court departed from essential requirements of law by joining insurer to judgment that was already rendered -- Insurer was irreparably harmed because it was made responsible for coverage without having been given opportunity to raise defenses to entitlement to or amount of coverage -- Court's holding is without prejudice to filing separate action against insurer seeking declaratory judgment for determination as to coverage

NOVA CASUALTY COMPANY, Petitioners, v. WILSON DEVELOPERS, LLC, a Florida limited liability company; SOUND CONSTRUCTION GROUP, INC., a Florida corporation; ARCHITECTONICS STUDIO, INC., a Florida corporation; TRAE STOKES CONSTRUCTION SERVICES, INC., d/b/a CONSTRUCTION SERVICES, INC., a dissolved Florida corporation; C & O FRAMING AND CONSTRUCTION, INC., a dissolved Florida corporation; C.Q. INSULATION, INC., a Florida corporation; DANIEL INSULATION, INC., n/k/a THOMAS D., INC., a Florida corporation; GYPSUM PRODUCTS, INC., a dissolved Florida corporation; and STEEL STUD ENTERPRISES, INC., a Florida Corporation, Respondents. 2nd District. Case No. 2D15-5395. Opinion filed February 22, 2017. Petition for Writ of Certiorari to the Circuit Court for Pinellas County; Bruce Boyer, Judge. Counsel: Jerry McKim of Wyland & Tadros LLP, West Palm Beach, for Petitioner Nova Casualty Company. Ty G. Thompson of Mills Paskert Divers, Tampa, for Respondent Sound Construction Group, Inc. No appearance for remaining Respondents.

(KELLY, Judge.) Nova Casualty Company seeks certiorari review of a nonfinal order adding it as a party to a final judgment. We grant Nova's petition and quash the order.

Wilson Developers, LLC, filed suit against Sound Construction Group, Inc. (Sound), for defective construction of a condominium. Sound filed a third-party complaint against certain subcontractors, including Steel Stud Enterprises, Inc. Steel Stud failed to respond to the complaint and a default judgment was entered against it on August 4, 2014. On October 29, 2014, Sound moved to initiate proceedings supplementary and sought to implead Nova Casualty Company, Steel Stud's commercial general liability insurer, and to join Nova as a party. The trial court granted Sound's motion, impleaded Nova as Steel Stud's insurer and joined Nova in the final judgment. Nova filed a motion for rehearing, which the trial court denied.

In its petition, Nova argues that joinder was improper because Sound failed to meet the requirements of section 627.4136(4), Florida Statutes (2014). That section states, in pertinent part, as follows:

At the time a judgment is entered or a settlement is reached during the pendency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party, unless the insurer denied coverage under the provisions of s. 627.426(2) or defended under a reservation of rights pursuant to s. 627.426(2).

Under the statute, a motion to add an insurer must be made prior to, or at the time of, entry of judgment against the defendant. ACE Am. Ins. Co. v. HCP III of Bradenton, Inc., 913 So. 2d 1280, 1281 (Fla. 2d DCA 2005) (noting that under the statute, “a liability carrier may be joined at or before the time judgment is entered against its insured”). “Such a motion could also be entertained if made within the time for a motion for rehearing under Florida Rule of Civil Procedure 1.530.” C.A. Seguros Catatumbo v. Herrera, 812 So. 2d 576, 577 (Fla. 3d DCA 2002).

Sound's motion was untimely under section 627.4136(4), because it was not filed at the time of final judgment on August 4, 2014, or within the following fifteen days allowed for a motion for rehearing under rule 1.530. Under rule 1.530, the latest a motion for joinder could have been filed was August 19, 2014. After that date the judgment became final and Nova could no longer be added as a party. See Herrera, 812 So. 2d at 577-78 (noting that once the judgment became final, it could not be amended to add the insurer as a party).

Sound argues that this court should dismiss Nova's petition for lack of jurisdiction because the order impleading Nova as a third party is not appealable. Sound also claims that Nova will not suffer irreparable harm by its impleader in the proceedings supplementary. However, as Nova argues, Sound treats impleading a party and joining a party as if they are interchangeable. They are not.

Impleader of a third party in proceedings supplementary “does not in and of itself imply liability on the part of the impleaded third parties.” Instead, it provides the party “with an opportunity to raise their defenses and protect their interests consistent with genuine due process.” Mejia v. Ruiz, 985 So. 2d 1109, 1112-13 (Fla. 3d DCA 2008) (recognizing that an insurance company may present defenses at the proceedings supplementary). However, Nova does not challenge the order impleading it into the proceedings supplementary. Rather, Nova is challenging the order adding it to the final judgment as a party. The trial court departed from the essential requirements of the law by joining Nova as party to a final judgment that had been already rendered. Nova is irreparably harmed because it has been made responsible for coverage without having been given an opportunity to raise any defenses it might have to the determination of entitlement to coverage or the amount of coverage.

Accordingly, we grant the petition for a writ of certiorari and quash the order joining Nova as a party. This holding is without prejudice to Sound's right to file a separate action against Nova seeking a declaratory judgment for a determination as to coverage. See C.A. Seguros Catatumbo, 812 So. 2d at 578.

Petition granted; order quashed. (CASANUEVA and SILBERMAN, JJ., concur.)

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Wrongful death -- Loss of consortium -- Spouse who was not married to a decedent at time of decedent's injury may not recover consortium damages as part of wrongful death suit -- Wrongful Death Act does not, directly or indirectly, abrogate or supersede the common law requirement that spouse must be married to injured party at time of injury to recover for loss of consortium


42 Fla. L. Weekly D453aTop of Form

Wrongful death -- Loss of consortium -- Spouse who was not married to a decedent at time of decedent's injury may not recover consortium damages as part of wrongful death suit -- Wrongful Death Act does not, directly or indirectly, abrogate or supersede the common law requirement that spouse must be married to injured party at time of injury to recover for loss of consortium -- Latent injuries -- Court cannot set aside common law “marriage before injury” rule in cases in which injury is a “latent injury” that does not reveal itself until after parties marry, but must follow that rule until legislature passes a statute superseding this common law requirement

JANIS KELLY, as Personal Representative of the Estate of John K. Kelly, Appellant, v. GEORGIA-PACIFIC, LLC, UNION CARBIDE CORP., PREMIX- MARBLETITE MANUFACTURING CO., and IMPERIAL INDUSTRIES, INC., Appellees. 4th District. Case No. 4D15-4666. February 22, 2017. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carol Lisa Phillips, Judge; L.T. Case No. 14-018038 (27). Counsel: Paulo R. Lima, Juan P. Bauta II, and Amanda A. Kessler of The Ferraro Law Firm, P.A., Miami, for appellant. Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, and Stuart A. Weinstein and Laura E. Eggnatz of Shapiro, Blasi, Wasserman & Hermann, P.A., Boca Raton, for appellee Georgia-Pacific, LLC. Matthew J. Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, and Ryan S. Cobbs of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellee Union Carbide Corporation.

(LEVINE, J.) The question presented for our review is whether the Florida Wrongful Death Act supersedes the common law requirement that a spouse must be married to the decedent before the date of the decedent's injury to recover damages for loss of consortium. Stated another way, did the legislative enactment, giving the estate's representatives and survivors a remedy not found in the common law, “explicitly,” “clearly,” and “unequivocally” abrogate the common law requirements to recover consortium damages when those damages are awarded under the Wrongful Death Act. Because there can be no change in the common law unless the statute is “explicit and clear in that regard” and the Wrongful Death Act does not “explicitly,” “clearly,” and “unequivocally” abrogate the common law rule, we hold that a spouse who was not married to a decedent at the time of the decedent's injury may not recover consortium damages as part of a wrongful death suit. Thus, we find that the trial court did not err in entering an order of dismissal, and subsequently entering a final judgment. We therefore affirm.

John Kelly and his wife, Janis Kelly, filed an action against appellees for negligence, strict liability, and for Janis Kelly's loss of consortium. During the course of the litigation, the husband died, and the wife amended the complaint, dropping her loss of consortium claim and adding a wrongful death claim, which included a demand for loss of consortium damages.

The decedent worked in construction and was exposed to asbestos during the years of 1973 to 1974. The decedent and appellant did not marry until 1976. In 2014, the decedent was diagnosed with mesothelioma and alleged that his exposure to asbestos caused the disease. The decedent died from mesothelioma in 2015.

Appellees moved to dismiss the wife's wrongful death claim, arguing that a spouse must be married to the injured party at the time of the injury for the spouse to bring a claim for loss of consortium and that the wrongful death claim sought damages for loss of consortium. Appellees argued it was undisputed that appellant was not married to the decedent when the decedent was injured. The trial court granted the motion to dismiss and dismissed that portion of appellant's complaint seeking consortium damages under the Wrongful Death Act. Appellant then voluntarily dismissed the remaining claims for negligence and strict liability. The trial court entered a final judgment, and this appeal ensued.

The standard of review that we use is de novo. Solorzano v. First Union Mortg. Corp., 896 So. 2d 847, 849 (Fla. 4th DCA 2005).

The tort of wrongful death did not exist at common law, and a personal injury claim did not survive the death of the injured party. Nissan Motor Co. v. Phlieger, 508 So. 2d 713, 714 (Fla. 1987). As a result, the Florida Legislature created a cause of action, wrongful death, to allow for a claim that survived the death of the injured party. See § 768.16, Fla. Stat. (2015).

The purpose of the Florida Wrongful Death Act is to provide a “separate and independent” cause of action since the original cause of action for personal injury did “not survive” the death of the injured party. City of Pompano Beach v. T.H.E. Ins. Co., 709 So. 2d 603, 605 (Fla. 4th DCA 1998). The passage of the Wrongful Death Act remedied this “anomaly.” Variety Children's Hosp. v. Perkins, 445 So. 2d 1010, 1012 (Fla. 1983). It is “thus clear that the paramount purpose of the Florida Wrongful Death Act is to prevent a tortfeasor from evading liability for his misconduct when such misconduct results in death.” Id. Thus, the statute explicitly, clearly, and unequivocally supersedes the common law by allowing the wrongful death cause of action to proceed even after the death of the injured party. See id.

Under the Wrongful Death Act, the decedent's personal representative “shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death.” § 768.20, Fla. Stat. (2015). Survivors are defined as

the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child's support.

§ 768.18(1), Fla. Stat. (2015).

As to damages, the Wrongful Death Act provides:

(1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.

(2) 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.

§ 768.21, Fla. Stat. (2015). These damages “are inclusive of a spouse's loss of consortium damages” and allows for a spouse to recover damages for loss of consortium even after the decedent's death. See ACandS, Inc. v. Redd, 703 So. 2d 492, 494 (Fla. 3d DCA 1997) (stating that “the legislature did not intend for a spouse's consortium claim to survive an injured spouse's death from his or her injuries by the fact that the legislature has provided for wrongful death damages that are inclusive of a spouse's loss of consortium damages”). Indeed, in this case, after the decedent died, appellant amended her complaint to replace her loss of consortium claim with a wrongful death claim that included a demand for the same exact damages as her prior loss of consortium claim.

Finally, the legislature announced that the public policy for the creation of the statute was to “shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.” § 768.17, Fla. Stat. (2015). The statute is “remedial” and “shall be liberally construed.” Id. Nevertheless, although the statute is “remedial,” “we cannot construe the statutory provisions so ‘liberally' as to reach a result contrary to the clear intent of the legislature.” Stern v. Miller, 348 So. 2d 303, 308 (Fla. 1977).

Appellant argues that the passage of the Wrongful Death Act, explicitly, clearly, and unequivocally superseded the common law relating to the damages resulting from “loss of consortium.” Under the loss of consortium tort, the plaintiff may recover damages for the loss of

the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation. Consortium means much more than mere sexual relation and consists, also, of that affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage.

Gates v. Foley, 247 So. 2d 40, 43 (Fla. 1971).

Significantly, under the common law of loss of consortium, the parties must have been married to one another at the time of the injury to recover damages for loss of consortium. Tremblay v. Carter, 390 So. 2d 816, 817 (Fla. 2d DCA 1980). As the court in Tremblay explained, the rationale for the common law rule is that

[s]ince a cause of action for personal injury and the derivative rights flowing therefrom ordinarily accrue when the tort is committed, the courts concluded that to permit an unmarried person to claim loss of consortium upon his marriage to an injured spouse would have the effect of allowing him to marry into the cause of action.

Id.

In the present case, the decedent's injury occurred when he was exposed to asbestos. See Am. Optical Corp. v. Spiewak, 73 So. 3d 120, 129 (Fla. 2011) (“Here, a foreign substance -- asbestos fibers -- were inhaled and became embedded in the lungs of the plaintiffs without their knowledge or consent. This, like the electric shock suffered by the plaintiff in Clark [v. Choctawhatchee, 73 So. 3d 120 (Fla. 2011)], constitutes an actual injury that has been inflicted upon the bodies of the plaintiffs.”). Thus, because the decedent was injured before appellant married him, for appellant to prevail in her claim, we must find that the Wrongful Death Act specifically supersedes the common law of loss of consortium.

We look to the language of the Wrongful Death Act. In interpreting a statute, “the plain meaning of the statutory language is the first consideration.” St. Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071, 1073 (Fla. 1982). There is, of course, the rule of statutory interpretation stating that statutes in derogation of the common law are to be strictly construed. Carlile v. Game & Fresh Water Fish Comm'n, 354 So. 2d 362, 364 (Fla. 1977). But since the Wrongful Death Act is a remedial statute, “the general rule of strict construction does not, in Florida, apply to a remedial statute in derogation of the common law.” Bellsouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 290 (Fla. 2003). See also Perkins, 445 So. 2d at 1012 (basing its decision “upon the language contained in section 768.19, Florida Statutes (1981)”); Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109, 118 (Fla. 2002) (holding that “the language of the Act” precluded the plaintiff from recovering).

Whether the legislature intended for the Wrongful Death Act to supersede the common law of loss of consortium “depends upon the legislative intent as manifested in the language of the statute.” Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 918 (Fla. 1990). “The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard.” Id. Thus, “[u]nless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.” Id.

In Thornber, the “express language” of the statute in question made “no mention of whether it superseded the common law with regard to the circumstances” at issue. Id. Thus, the statute did not “replace the common law completely.” Id. See also Honeywell Int'l, Inc. v. Guilder, 23 So. 3d 867, 870 (Fla. 3d DCA 2009) (finding that the legislature clearly intended to create a child's right to parental consortium). Indeed, changes to the common law must come through the legislature in the form of statutes. See Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1207 (Fla. 1987) (“[A] statute will not displace the common law unless the legislature expressly indicates an intention to do so.”).

Applying the principles of Thornber to the present case leads us to the conclusion that the statutory language of 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. Here, the plain language of the statute shows that the legislature clearly intended that the Wrongful Death Act allow for a surviving spouse to recover “consortium-type” damages. See ACandS, 703 So. 2d at 494. The legislature is presumed to know of the common law limitation for recovering loss of consortium damages. Williams v. Jones, 326 So. 2d 425, 435 (Fla. 1975) (“[T]he Legislature is presumed to know the existing law when it enacts a statute . . . .”). However, despite the clear intention that the Wrongful Death Act allow for the recovery of consortium damages after the decedent's death, nothing in the statute abrogates the common law marriage before injury rule. Therefore, because the legislature did not explicitly and clearly overrule the common law limitation on loss of consortium when enacting the Wrongful Death Act, the common law marriage before injury rule was incorporated into the Act. See Dep't of Rev. ex rel. Soto v. Soto, 28 So. 3d 171, 172 (Fla. 1st DCA 2010) (holding that Florida's child support statute should be read in light of settled common law precedents limiting the type of gifts that can be credited against retroactive child support obligations).

Further, there appears to be no reason why the common law requirement -- that the injured spouse and the surviving spouse be married prior to the date of injury -- cannot coexist with the Wrongful Death Act. Nothing in the Wrongful Death Act is “so repugnant to the common law that the two cannot coexist.” Thornber, 568 So. 2d at 918. The common law rule merely limits the circumstances for when the surviving spouse may recover “consortium-type” damages under the wrongful death statute for the “decedent's companionship and protection and for mental pain and suffering from the date of injury.” § 768.21(2), Fla. Stat. (2015).

Additionally, we note that the plain language of the Wrongful Death Act indicates that the legislature did not intend for a surviving spouse to recover consortium damages if the surviving spouse was not married to the decedent prior to the date of the decedent's injury. The definition of “survivor” in the statute is limited to familial relationships only, and both subsections (1) and (2) of section 768.21 clearly provide that damages are recoverable from the date of “injury.” §§ 768.18(1), 768.21(1)-(2), Fla. Stat. (2015). Thus, the plain language of the statute indicates that the legislature anticipated that the surviving spouse would have been married to the decedent prior to the date of injury.

To read the statute to permit recovery of consortium damages where the injury occurs prior to marriage, as the dissent does, would allow for results not supported by the plain language of the statute. For example, two unmarried individuals could be living together and in a relationship where one individual is financially dependent upon the other. If one of them is injured and the two continued living under the same arrangement for several years, then, under the dissent's view, so long as the couple is married a day before the injured party dies, the newly wedded surviving spouse could recover damages from all of the way back to when the decedent was first injured. However, given that the legislative definition of “survivor” is limited to familial relationships only, the legislature plainly did not intend for the surviving spouse to be able to collect consortium damages that proceeded the marriage.

Finally, it would make no sense to allow a spouse to recover consortium damages under the Wrongful Death Act simply because his or her spouse has died when that same spouse would be prohibited from recovering the same damage under a loss of consortium claim had his or her spouse survived. We are required to interpret the Wrongful Death Act to avoid absurd results such as this. Allstate Ins. Co. v. Rush, 777 So. 2d 1027, 1032 (Fla. 4th DCA 2000) (“In all, statutes must be construed as to avoid an unreasonable or absurd result.”).1

Since the common law applies to our inquiry, we are next asked to not apply the marriage before injury rule in cases where the injury is a “latent injury” that does not reveal itself until after the parties marry. Appellant argues there would be no risk, or at least a diminished risk, of a spouse “marrying into a cause of action.” Thus, appellant contends we should not apply the marriage before injury rule because one of the reasons for the rule is not present.

In Fullerton v. Hospital Corporation of America, 660 So. 2d 389, 390 (Fla. 5th DCA 1995),

Fullerton's cause of action arose as the result of his wife's exposure to radiation when she was a student trainee studying radiation technology at the hospital. Fullerton married his wife several years after she was exposed to radiation. They did not realize that she was injured until three years after they had married when she developed cancer of the thyroid and had to have her thyroid removed.

The wife argued that the court should set aside the marriage before injury rule. However, the court concluded that “[i]n the absence of any statutory law on this point, Florida courts are required to follow the common-law rule.” Id. at 391. The court therefore held the wife could not recover. See also § 2.01, Fla. Stat. (2015) (“The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.”).

Like in Fullerton, appellant asks us to set aside the common law marriage before injury rule. However, we, like the court in Fullerton, “are required to follow the common-law rule” until the legislature passes a statute superseding this common law requirement. 660 So. 2d at 391. Thus, we also affirm the trial court on this issue.2

In conclusion, we affirm the trial court and hold that the 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.3 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 come only from the legislature by statutory enactment.

Affirmed. (CONNER, J., concurs. TAYLOR, J., dissents with opinion.)

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1Although the dissent claims that the opinion of this court is the only one of its kind in the United States, we must emphasize that exceedingly few courts have ever even considered this issue and none have interpreted Florida's Wrongful Death Act or Florida's common law specifically. See Wade R. Habeeb, Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage, 69 A.L.R.3d 1046 (2011 update) (noting that there is “little authority” for the proposition that a wrongful death statute abrogates the marriage before injury rule).

2Additionally, we note that other jurisdictions have prohibited a loss of consortium claim from proceeding in so-called “latent injury” cases. See, e.g., Anderson v. Eli Lilly & Co., 588 N.E.2d 66, 67-68 (N.Y. 1991); Doe v. Cherwitz, 518 N.W.2d 362, 362 (Iowa 1994); Gross v. Sauer, No. 37 83 58, 1992 WL 205277, *2 (Conn. Super. Ct. Aug. 14, 1992).

3We do not express any comment regarding other damages recoverable under the Wrongful Death Act such as recovery for medical and funeral expenses and other damages recoverable by an estate's personal representative. See § 768.21(3)-(6), Fla. Stat.

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(TAYLOR, J., dissenting.) I respectfully dissent. I would reverse the trial court's order barring the plaintiff from recovering wrongful death damages after almost 40 years of marriage to the decedent. The trial court dismissed the plaintiff's wrongful death claim because she was not married to the decedent when he was exposed to asbestos-containing products in the early 1970's. It bears emphasizing, however, that the decedent was not diagnosed with any asbestos-related illness until 2014. In dismissing the plaintiff's claim, the trial court incorrectly applied a common law rule governing loss of consortium claims to a cause of action that arose under the Wrongful Death Act. This common law rule, which limits loss of consortium recovery to spouses who are married at the time of the injury, cannot coexist with the Wrongful Death Act as written.

Under the Wrongful Death Act, marriage at the time of injury is not a necessary element of the cause of action. A wrongful death cause of action did not exist at common law. Nissan Motor Co. v. Phlieger, 508 So. 2d 713, 714 (Fla. 1987). It is purely statutory and supersedes the common law. As the Florida Supreme Court has noted on numerous occasions, the Legislature intended to create an entirely new and independent cause of action for survivors of injured persons who subsequently died from their injuries. Id. Both the text of the Wrongful Death Act and Florida Supreme Court precedent demonstrate the Legislature's clear intent to grant a decedent's survivors a brand new cause of action not previously recognized at common law.

As the majority correctly points out, “[u]nless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.” Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 918 (Fla. 1990). Here, however, the Wrongful Death Act meets both tests of Thornber.

First, the Legislature unequivocally stated that the Wrongful Death Act is a “remedial” statute, and is designed “to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.” § 768.17, Fla. Stat. (2015). This constitutes an unequivocal statement that the Wrongful Death Act is in derogation of the common law. By definition, a remedial statute is “designed to correct an existing law” or to give a party a “remedy for a wrong, where he had none, or a different one, before.” Adams v. Wright, 403 So. 2d 391, 394 (Fla. 1981) (citation omitted).

Second, the Wrongful Death Act is so repugnant to the common law rule regarding consortium claims that the two cannot coexist where the plaintiff is asserting a claim for wrongful death. We have explained that the cause of action for wrongful death is “created and limited” by the Wrongful Death Act. Hess v. Hess, 758 So. 2d 1203, 1204 (Fla. 4th DCA 2000). Applying the common law “marriage at the time of injury” rule to the facts of this case would require us to rewrite the Wrongful Death Act. The Wrongful Death Act sets forth the exclusive list of individuals who are entitled to recover damages as statutorily-designated “survivors.” It follows that the Wrongful Death Act is repugnant to any common law rule that would effectively modify the definition of the term “survivors” under the Act. Stated another way, applying the common law requirements of a consortium claim to a wrongful death claim would alter the category of “survivors” that may recover damages under the Wrongful Death Act, thereby limiting the class of “survivors” in a way that was not authorized by the Legislature. This result is wholly repugnant to the plain language of the statute.

As noted above, the “marriage at the time of injury” element of a common law loss of consortium claim simply does not apply to a wrongful death action. Under the Wrongful Death Act, the decedent's personal representatives “shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death.” § 768.20, Fla. Stat. (2015). “Survivors” are defined as:

the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child's support.

§ 768.18(1), Fla. Stat. (2015).

As for damages, a wrongful death claim is “brought on behalf of the survivors, not to recover for injuries to the deceased, but to recover for statutorily identified losses the survivors have suffered directly as a result of the death.” City of Pompano Beach v. T.H.E. Ins. Co., 709 So. 2d 603, 605 (Fla. 4th DCA 1998). The statute provides that the surviving spouse may recover “for loss of the decedent's companionship and protection and for mental pain and suffering” and “the value of lost support and services” from the date of the decedent's injury to her or his death. § 768.21(1)-(2), Fla. Stat. (2015).

In interpreting a statute, we must first consider “[t]he plain meaning of the statutory language.” St Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071, 1073 (Fla. 1982). No language in the Wrongful Death Act states or even suggests that a surviving spouse must be married to the decedent at the time of injury to recover the delineated damages. The statute gives a right of action not had under common law and it must be limited strictly to the meaning of the language employed and not extended beyond its plain and explicit terms.

The statute defines “survivors” as including “the decedent's spouse” without any other limitation. See § 768.18, Fla. Stat. (2015). Further, section 768.21, which governs recoverable damages, does not state that a spouse must be married to the decedent at the time of the decedent's injury. Under the clear terms of the Wrongful Death Act, a cause of action for the recovery of wrongful death damages vests in favor of the surviving spouse on the date of death of the decedent. Thus, the only relevant time for the determination of an individual's status as a survivor is the time of the decedent's death. See, e.g., Powell v. Gessner, 231 So. 2d 50, 51 (Fla. 4th DCA 1970) (“[T]he status of a child in respect to its right to sue for the wrongful death of a parent is determined at the time of the death of the parent.”).

The majority contends that the language of section 768.21(2) implies that the Legislature assumed the surviving spouse would be married to the decedent on the date of injury. Section 768.21(2) states that “[t]he 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.” However, the clause “from the date of injury” does not provide a limitation as to who may recover, but rather indicates what a surviving spouse may recover. Accordingly, the statute does not limit recovery to those surviving spouses who are married to the decedent at the time of injury.

While the Legislature may not have contemplated the unique facts of this particular case, the term “survivors” is unambiguous. As our supreme court has explained, “[e]ven where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 454 (Fla. 1992) (quoting Van Pelt v. Hilliard, 78 So. 693, 694 (Fla. 1918)).

Although the common rule governing consortium claims and the Wrongful Death Act providing “consortium-like” damages have been around for decades, the issue of whether the common law “marriage at the time of injury” rule should be incorporated into the Wrongful Death Act appears to be a matter of first impression in Florida. This is not, however, an issue of first impression in the United States. Courts addressing this issue in other states have rejected outright the argument that the common law “marriage before injury” rule deprives surviving spouses of their right to maintain statutory actions for wrongful death. These jurisdictions support the spouse's right to recover for consortium-like damages where such damages are provided by statute, regardless of whether the spouse and decedent were married at the time of the initial injury that resulted in death. Moreover, to my knowledge, no other appellate court in the history of American jurisprudence has come to the conclusion reached by the majority.

In Lovett v. Garvin, 208 S.E.2d 838 (Ga. 1974), for example, the Georgia Supreme Court held that the husband's right of action for tortious homicide of his wife under the wrongful death statute accrued at the time of the wife's death from the injuries inflicted by the defendant -- thus, because the husband and wife were married at the time of the wife's death, the husband was entitled to bring a wrongful death action even though the husband and wife were not married at the time the injuries were inflicted.

The Lovett court wrote that “[s]ince the [wrongful death statute] gives a right of action not had under common law, it must be limited strictly to the meaning of the language employed and not extended beyond its plain and explicit terms.” Id. at 840. The court went on to explain that:

Nothing in the language of this statute states or implies that the husband must be married to the wife at the time the injuries from which she subsequently dies are inflicted. Therefore, we agree that the right of action accrues at the time of the death of the wife. Since at the time of the decedent's death here she was lawfully married to the plaintiff, he was entitled to bring an action for damages against the defendant for her wrongful death under the law of this state.

Id.

Similarly, in DeVine v. Blanchard Valley Medical Associates, Inc., 725 N.E.2d 366 (Ct. Comm. Pls. Ohio 1999), a case where the husband brought a wrongful death action against health care providers for their negligent failure to properly diagnose and treat his wife's cancer, the Ohio court held that the husband was not precluded from seeking damages for loss of consortium in his wrongful death action although the husband and wife were not married when the wife was diagnosed with cancer.

After acknowledging the common law rule that a spouse must be married at the time of injury to recover for loss of consortium, the DeVine court noted that the Ohio wrongful death statute was an independent cause of action and that nothing in the statute limited recovery. The court concluded that a claim for wrongful death differs significantly from a claim for loss of consortium, stating as follows:

A claim for loss of consortium has been recognized at common law for many years. Conversely, an action for wrongful death is statutory in nature and operates as an exception to the common law. A cause of action brought under R.C. Chapter 2125 provides a single and distinct cause of action, involving multiple elements of damages. This right of action is independent from any right or cause that may be brought by the injured person.

Id. at 369 (internal citations omitted).

Likewise, in Du Bois v. Community Hospital of Schoharie County, Inc., 540 N.Y.S.2d 917 (N.Y. App. Div. 1989), a New York appellate court affirmed the trial court's denial of the hospital's motion to dismiss a widow's wrongful death action. There, the appellate court drew a distinction between a common law loss of consortium claim and wrongful death damages sought by a spouse. The court stated that although a claim for loss of consortium is not permitted unless the surviving spouse was married to the injured person at the time of the actionable conduct, “that is not the case with a wrongful death cause of action.” Id. at 918. The court held that the widow's rights as a beneficiary of the decedent are not affected by when the marriage occurred as long as the parties were married at the time of the decedent's death. Id.

Finally, in Corley v. State, Department of Health & Hospitals, 749 So. 2d 926, 942 (La. App. 2d Cir. 1999), the court explained that for purposes of a wrongful death action, “it is irrelevant what the relationship between the claimants and the decedent was at an earlier time, such as at the time of the act or omission which caused or set in motion the death[.]”

These decisions illustrate that courts across the country have routinely rejected the appellees' argument. In fact, as far as I am aware, the majority's decision is the first time any court has held in a reported opinion that the common law requirements of a consortium claim barred a spouse from asserting a statutory claim for wrongful death where the injury occurred before the marriage. See Wade R. Habeeb, Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage, 69 A.L.R.3d 1046 (2011 update) (collecting cases that uniformly reject the appellees' argument).

Under Florida's Wrongful Death Act, the surviving spouse is entitled to maintain a claim for all those statutorily identified losses that he or she has suffered directly as a result of the death of the decedent. This includes the bundle of services and benefits specified in the act which we commonly call “consortium.” The Legislature, by including these damages without basing their recoverability on the surviving spouse's relationship to the decedent at the time of injury, clearly intended that such damages be recoverable in a wrongful death action. Here, the plaintiff's wrongful death claim is not a common law claim for loss of consortium deriving from her late husband's claim for personal injury, but is a claim based on a wholly independent and distinct cause of action authorized by the Legislature. According to the statute, her rights vested upon the death of her husband. The date of their marriage is immaterial.

In sum, I would reverse the trial court's dismissal of the plaintiff's wrongful death consortium claim. The trial court incorrectly applied the common law rule concerning consortium claims in personal injury cases to the plaintiff's statutory claim for wrongful death. In doing so, the court barred the plaintiff from recovering a significant portion of the damages provided by the Legislature for surviving spouses of those who died from injuries caused by the negligence of others.

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