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Supreme Court clarifies ‘surviving spouse’ standard in wrongful death cases

Supreme Court clarifies ‘surviving spouse’ standard in wrongful death cases

Supreme Court clarifies ‘surviving spouse’ standard in wrongful death cases

Supreme Court clarifies ‘surviving spouse’ standard in wrongful death cases

“We reject the respondent’s argument that, in these circumstances, the common law ‘marriage before injury’ rule bars recovery”

Supreme Court

A Florida woman who married a Navy veteran four months before he died of mesothelioma is a “surviving spouse” entitled to recover damages, the Florida Supreme Court has determined.

“We reject the respondent’s argument that, in these circumstances, the common law ‘marriage before injury’ rule bars recovery under section 768.21(2),” Chief Justice Carlos Muñiz wrote in the unanimous opinion.

In Ripple, etc. vs. CBS Corporation, et. al., No. SC2022-0597, the court overturned a Fourth District Court of Appeal ruling that directly conflicted with a Fifth District Court of Appeal interpretation of Florida’s wrongful death act.

According to the ruling, Richard Counter was diagnosed with mesothelioma on May 22, 2015, and married Jennifer Ripple on July 4, after living with her for decades. On July 23, Counter filed a personal injury complaint against multiple defendants, citing asbestos exposure from the 1950s to the 1990s. He died November 1.

Counter was survived by Ripple and two adult children from a previous marriage. As personal representative of the estate, Ripple amended the personal injury claim to a wrongful death action. The estate sought damages for Ripple, citing a provision of §768.21(2), which provides “the surviving spouse may also recover for the loss of the decedent’s companionship and protection and for mental pain and suffering from the date of the injury.”

The estate also sought alternative damages for the adult children under §768.21(3), which provides that “minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.”

However, “[w]e do not reach Ripple’s alternative argument regarding the claim of the decedent’s children for damages under section 768.21(3),” the order stated.

In their motion for a judgment on the pleadings, the defendants cited Florida’s common law rule that “a party must have been legally married to the injured person at the time of the injury in order to assert a claim for loss of consortium.”

The Fourth DCA, siding with the trial court, ruled that “a spouse who married the decedent after the onset of the injury that caused the decedent’s death cannot recover damages as a ‘surviving spouse,’ under section 768.21(2).”

Justices noted that this ruling “expressly and directly conflicts” with a 2018 ruling by the Fifth District in Domino’s Pizza, LLC v. Wiederhold, in which the district court determined that a spouse who married the decedent after the injury can recover damages as a “surviving spouse” under §768.21(2).

“For the reasons discussed below, we agree with the Fifth District and hold that a spouse who married the decedent after the injury can recover damages as a ‘surviving spouse’ under section 768.21(2),” according to the ruling.

The defendants moved for a judgment on the pleadings, citing a common law rule that “a party must have been legally married to the injured person at the time of the injury in order to assert a claim for loss of consortium,” the ruling noted.

The ruling observed that “[d]efendants also argued that the rationale for this common law rule is that ‘a person may not marry into a cause of action and that a line must be drawn somewhere as to liability.’”

The defendants further argued that Counter’s adult children could not recover under §768.21(3) because Ripple qualified as a “surviving spouse” under the subsection.

The estate alternatively requested that, if the trial court rejected the Fifth DCA interpretation, it deny the defendant’s motion as to the adult children.

The trial court granted the defendant’s motion as to Ripple’s damages claims but denied the motion as to the adult children’s claim. The trial court cited a 2014 Fourth District ruling in Kelly v. Georgia-Pacific, LLC, but “provided no reasoning for its ruling on the adult children’s claim,” the justices noted.

The court also noted that “[d]efendants later moved for summary judgment as to the adult children’s claim. Defendants argued that under the Act, adult children of the decedent may only recover damages under section 768.21(3) if there is no surviving spouse. Defendants claimed it was undisputed that Ripple was Counter’s ‘surviving spouse.’”

The trial court granted the defendant’s motion for summary judgment, concluding in a written order that “as there is a surviving spouse, albeit a spouse who is herself barred from recovery pursuant to Kelly, an adult child is barred from recovery pursuant to the plain language of section 768.21(3) of the Wrongful Death Act,” the order recounted.

Justices noted that the trial court wrote that it was bound by Kelly and the plain language of the statute, even though the defendant’s interpretation of section 768.21(3) would “completely cut off recovery under the Wrongful Death statute for the decedent’s family, other than for funeral expenses,” which “would turn back the legal clock to a time when a tortfeasor could delay justice until the injured person died and thereby avoid all liability for their wrongdoing.”

The Fourth District affirmed the trial court’s order granting the defendant’s motion for judgment on the pleadings as to Ripple’s damages claim, the justices noted, but it reversed the order granting defendant’s motion for summary judgment as to the adult children’s §768.21(3) damages claim.

“At the threshold, we must determine whether a spouse who married the decedent after the onset of the injury that caused the decedent’s death is a ‘surviving spouse’ under section 768.21(2) of the Act,” the justices wrote.

“As we explain later, we further hold that the common law ‘marriage before injury’ rule does not bar recovery under 768.21(2) by a surviving spouse who married the decedent after the date of injury,” the ruling stated.

Justices pointed to the text of the statute: “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.”

“The plain language of section 768.21(2) indicates that a spouse who married the decedent after the onset of the injury that caused the decedent’s death is a ‘surviving spouse’ under that subsection,” the order states. “Because the Act does not define the term ‘surviving spouse,’ we accord the phrase its ordinary meaning while giving regard to the context in which the phrase is used.”

The ordinary meaning of a “spouse,” is a “person lawfully married to someone else,” the justices determined.

“We face, then, the remaining question: When is a spouse a ‘surviving spouse’? In other words, does the ordinary meaning of the word ‘survivor’ tell us whether survivorship under section 768.21(2) is determined at the time of the decedent’s injury or at the time of the decedent’s death? We conclude that a ‘surviving spouse’ under section 768.21(2) is a spouse at the time of the decedent’s death because the ordinary meaning of ‘surviving spouse’ is a spouse who outlives the other spouse.”

The ruling pointed to Black’s Law Dictionary definition of survivor when the Florida Wrongful Death Act was enacted in 1972, and a current edition’s definition of “surviving spouse.”

“Thus, survivorship under section 768.21(2) is determined at the time of the decedent’s death, which is the time when the spouse outlives the decedent,” the ruling stated. “A spouse who outlives the decedent is a ‘surviving spouse’ under section 768.21(2) who may recover damages under that provision.”

“Moreover, the ‘from the date of injury’ language in section 768.21(2) cannot reasonably be read to contradict this ordinary meaning.”

Justices also noted that Florida’s Wrongful Death Act “effectuated a complex merger of two previously existing causes of action: a statutory wrongful death action focused on compensating survivors, and a survival action focused on compensating the decedent (through his or her estate).”

The ruling also  observed that “[a]llowing the ‘marriage before injury’ rule as a defense to a surviving spouse’s recovery of damages under section 768.21(2) thus risks upsetting the Act’s logic and underlying structure.”

If there is a problem in the statute that needs fixing, it’s up to the Legislature, not the courts, the justices concluded.

“Finally, we note that as a finder of fact, a jury may, in considering the evidence, determine whether a spouse’s conduct amounts to an attempt to marry into a section 768.21(2) claim.”

“We therefore hold that Ripple is a ‘surviving spouse’ under section 768.21(2). As explained above, a ‘surviving spouse’ is a spouse who outlives the other spouse. Here, Ripple legally married Counter on July 4, 2015, and Counter died on November 1, 2015. Ripple was Counter’s spouse at the time of his death. Because she outlived her husband, Ripple is a ‘surviving spouse’ under section 768.21(2) as a matter of law.”

Approving the holding in Domino’s and quashing Ripple, “to the extent that it holds otherwise,” the order remanded the case “for proceedings consistent with this opinion.”

Originally published at https://www.floridabar.org/the-florida-bar-news/supreme-court-clarifies-surviving-spouse-standard-in-wrongful-death-cases/

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