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,