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No Loss of Consortium Damages For Death of Spouse Resulting From Injury Prior To Marriage

May a spouse who was not married to the decedent at the time of the decedent’s injury recover consortium damages as part of a wrongful death suit? No, says the Fourth DCA.

In Kelly v. Georgia-Pacific LLC, 211 So. 3d 340 (Fla. 4th DCA 2017), John Kelly and his wife filed actions for negligence, strict liability, and for the wife’s loss of consortium. John Kelly was diagnosed with mesothelioma in 2014 and alleged his exposure to asbestos from 1973 to 1974 caused the disease. During the course of the litigation, in 2015, John Kelly died from mesothelioma. His 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 defendants 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. The decedent and his wife married in 1976.

The trial court agreed and dismissed that portion of the complaint seeking consortium damages under the Wrongful Death Act. The remaining claims were then voluntarily dismissed. The trial court entered a final judgment, and the appeal followed. On appeal, the Fourth District affirmed.

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 including the decedent’s spouse. § 768.18(1), Fla. Stat. (2015). The Wrongful Death Act allows for a spouse to recover damages for loss of consortium even after the decedent’s death. See § 768.21, Fla. Stat. (2015); 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”).

The Fourth District determined that 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.” The Fourth District went on to 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.”

While acknowledging that there may be persuasive policy reasons for superseding this common law rule, especially in a case such as this where the injury is latent, the Fourth District concluded that such a change may come only from the legislature by statutory enactment.

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