Recovery of Damages Permitted as to Adult Children, Disallowed as to Spouse in Wrongful Death Action

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Court of Appeal of Florida, Fourth District, March 30, 2022

In this matter, the decedent alleged exposure to asbestos during military service, throughout his career working at various industrial plants, and at his own home from the 1950s to the 1990s. On May 22, 2015, the decedent was diagnosed with mesothelioma. On July 4, 2015, he married the woman (the spouse) with whom he had lived for many years. On July 23, 2015, the decedent sued multiple defendants, asserting claims for negligence and strict liability. The decedent died on November 1, 2015. Following his death, the spouse amended the complaint, replacing the common law personal injury claims with the estate’s claim to recover damages for the spouse pursuant to section 768.21(2) of the Wrongful Death Act (the Act) or, alternatively, damages for the decedent’s adult children under section 768.21(3) of the Act.

The defendants filed a motion for judgment on the pleadings as to both claims. With respect to the spouse’s claim, the defendants argued that she was precluded from recovering damages under section 768.21(2) because she and the decedent were not married at the time of his alleged exposure to asbestos as required by Kelly v. Georgia-Pacific, LLC. Therefore, she did not qualify as the “surviving spouse.” In Kelly, the court held that a spouse, who married the decedent after the decedent’s injury, was barred from recovering “for loss of the decedent’s companionship and protection and for mental pain and suffering” under the Act. As to the adult children, the defendants argued they were prohibited from recovering damages because the spouse qualified as a “surviving spouse” and under the Act, adult children may only recover if there is no surviving spouse. In response, the estate claimed that the court’s holding in Kelly was erroneous. In support of its position, the estate relied on the Fifth District’s reasoning in Domino’s Pizza, LLC v. Wiederhold, in which the court allowed for the recovery of damages by a spouse who married the decedent following the decedent’s injury. The circuit court granted the motion as to the spouse’s damages but denied the motion as to the adult children’s damages. The defendants subsequently filed a motion for summary judgment with respect to the adult children’s damages. The circuit court granted summary judgment in favor of the defendants.

On appeal, the court first reviewed the Kelly and Domino’s decisions. The court focused on the Fifth District’s failure to apply the principles of Thornber v. City of Fort Walton Beach to its analysis in Domino’s. Under Thornber, a court must examine “whether a legislative enactment either unequivocally states that it changes the common law ‘or is so repugnant to the common law that the two cannot coexist . . . .’” The court concluded that the common law requirement—that an injured spouse and surviving spouse be married prior to the date of injury—and the Wrongful Death Act could coexist as the common law rule was merely a limitation. The court also pointed out that Domino’s permitted an “absurd result,” namely that a spouse could recover consortium damages under the Act when his or her spouse died but could not do so had the spouse survived. Accordingly, the court affirmed the circuit court’s order granting the defendants’ motion for judgment on the pleadings as to the spouse’s claim. At the same time, the court certified conflict between Kelly and Domino’s. As to the adult children’s alternative damages claim, the court reversed summary judgment. Agreeing with the estate, the court explained that the defendants engaged in an “irreconcilable contradiction” by arguing that the decedent’s wife was not his “surviving spouse” for purposes of section 768.21(2) of the Act, while at the same time arguing that the decedent’s spouse was his “surviving spouse” under section 768.21(3) of the Act. According to the court, such a situation was akin to judicial estoppel. Lastly, the court rejected the defendants’ effort to describe the spouse as a “surviving spouse, albeit a spouse who is herself barred from recovery pursuant to Kelly” as it impermissibly attempted to add words to the Act. In sum, the court affirmed the circuit court’s order granting the defendant’ motion for judgment on the pleadings as to the decedent’s spouse’s claim for damages based on Kelly, reversed the circuit court’s order granting summary judgment as to the decedent’s adult children’s alternative damages claim, and certified conflict between Kelly and Domino’s.

Read the full decision here.