In a 2-1 opinion, the Fourth District Court of Appeal continued to apply the law which bars marrying into a cause of action, but a strong dissenting opinion and noted public policy concerns could trigger further review.
In Florida, as in various other jurisdictions, the courts follow the common law marriage before injury rule. This rule requires a party to be married to the injured person prior to the time of the injury in order to assert a claim for loss of consortium – i.e. loss of companionship and support. The rationale behind this rule is that a person should be unable to marry into a cause of action. This rule has been consistently applied in personal injury cases including toxic tort and products liability cases of the “creeping” variety, such as asbestos and tobacco.
In the recent decision issued in Janis Kelly v. Georgia-Pacific, LLC, et al., No. 4D15-4666 (Fla. 4th DCA February 22, 2017) the Court was asked to look at this issue in the context of a wrongful death claim. In Kelly, Plaintiffs originally filed a personal injury claim asserting causes of action for negligence, strict liability, and for Mrs. Kelly’s loss of consortium arising from Mr. Kelly’s alleged exposure to asbestos while working in construction from 1973 to 1974. Mr. and Mrs. Kelly were not married until 1976, two years after Mr. Kelly’s alleged asbestos exposure. Mr. Kelly died during the course of the litigation at which time Mrs. Kelly amended the complaint to allege a claim for wrongful death, which included a demand for loss of consortium damages. The Defendants moved to dismiss Mrs. Kelly’s claims for loss of consortium as Mr. and Mrs. Kelly were not married at the time of Mr. Kelly’s alleged injury. When the trial court granted the motion to dismiss, Plaintiff voluntarily dismissed the remaining claims and the appeal followed.
On appeal, the Court addressed whether the Florida Wrongful Death Act supersedes the common law requirement that a spouse must be married to the decedent before the time of the injury to recover consortium damages. And, the Court revisited the question of whether the common-law marriage before injury rule should apply in “creeping” cases where the injury is a latent injury that does not reveal itself until after the parties marry.
On the first issue, the Court looked to the legislative intent of Florida’s Wrongful Death Act, to determine if the Act supersedes the common law of loss of consortium– i.e. did the statute unequivocally state that it changes the common law or is it so repugnant to the common law that the two cannot coexist. Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla. 1990). In applying Thornber, the Court found that the plain language of the Act clearly intended to allow for the survivors of the decedent to recover damages, including the surviving spouse to recover “consortium-type” damages. See ACandS, Inc. v. Redd, 703 So.2d 494 (Fla. 3d DCA 1007). The Court found, however, that nothing in the Act nullifies the common law marriage before injury rule. Instead, the Court determined that the common law requirement merely limits the circumstances when damages for loss of consortium may be recovered. Ultimately, ruling that the common law marriage before injury rule can coexist with the Wrongful Death Act.
In further support of its position, the Court also looked to the legislature’s definition of the term “survivor” and the trigger for when consortium damages are recoverable under the Act. Specifically noting, the term “survivor,” is limited to a familial relationship only, and the provisions of the Act governing a survivor’s damages clearly provide that they are recoverable from the date of the injury. See §§ 768.18(1), 768.21(1)-(2), Fla. Stat. (2015). Based on these provisions, the Court concluded that the Act clearly anticipated the surviving spouse would have been married to the decedent prior to the date of the injury.
Lastly, in making its determination to apply the marriage before injury rule in wrongful death cases as well as personal injury claims, the Court addressed the requirement that it avoid absurd or unreasonable results. Justice Levine, in writing for the Court, notably stated “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.” It is clear that such a ruling would create an inconsistent standard and provide for a cause of action where none previously existed.
The Court then briefly addressed the second issue related to Mrs. Kelly’s argument that the marriage before injury rule should not apply in an asbestos case where the injury is latent because there is no risk, or at least a diminished risk, of a spouse marrying into a cause of action. While acknowledging the persuasive policy reasons for superseding the common law rule, especially where the injury is latent, the Court in relying on the decision in Fullerton v. Hospital Corporation of America, 660 So.2d 389 (Fla. 5th DCA 1995), declined to overrule the trial court’s order. Finding as the Court did in Fullerton, that absent a statute superseding the common-law requirement, it is required to follow the common-law rule.
Justice Taylor’s dissent focused solely on the position that the Wrongful Death Act explicitly abrogates the common-law rule. He argues that the statute was created to provide for a surviving spouse to bring a new cause of action that was not previously recognized by common law entitling them to make a claim for loss of consortium damages. And, that the legislature’s inclusion of loss of consortium damages without language limiting their recoverability based on the surviving spouse’s relationship to the decedent at the time of the injury, clearly shows intent that such damages be recoverable.
While this case provides clarity as to the application of the common-law marriage before injury rule in both personal injury and wrongful death cases, based on the dissent and noted public policy issues, this issue will most likely be addressed in the near future by the Florida Supreme Court.