51 So.3d 421 (Fla. 2010), SC09-1675, Greenfield v. Daniels

Docket Nº:SC09-1675, SC09-1676.
Citation:51 So.3d 421, 35 Fla. L. Weekly S 685
Opinion Judge:LABARGA, J.
Party Name:Jonathan GREENFIELD, M.D., et al., Petitioners, v. Dorothea DANIELS, etc., Respondent. Tenet St. Mary's Inc., etc., Petitioner, v. Dorothea Daniels, etc., Respondent.
Attorney:Lawrence E. Brownstein, West Palm Beach, FL; Norman M. Waas and Robert S. Covitz of Falk, Waas, Hernandez, Cortina, Solomon, and Bonner, P.A., Coral Gables, FL, for Petitioners. Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain, and Williams, LLP, and Clark, Fountain, La Vista, Prather, Kee...
Judge Panel:CANADY, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur. POLSTON, J., concurs in result.
Case Date:November 24, 2010
Court:Supreme Court of Florida
 
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Page 421

51 So.3d 421 (Fla. 2010)

35 Fla. L. Weekly S 685

Jonathan GREENFIELD, M.D., et al., Petitioners,

v.

Dorothea DANIELS, etc., Respondent.

Tenet St. Mary's Inc., etc., Petitioner,

v.

Dorothea Daniels, etc., Respondent.

Nos. SC09-1675, SC09-1676.

Supreme Court of Florida.

November 24, 2010

Lawrence E. Brownstein, West Palm Beach, FL; Norman M. Waas and

Page 422

Robert S. Covitz of Falk, Waas, Hernandez, Cortina, Solomon, and Bonner, P.A., Coral Gables, FL, for Petitioners.

Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain, and Williams, LLP, and Clark, Fountain, La Vista, Prather, Keen and Littky-Rubin, West Palm Beach, FL, for Respondent.

LABARGA, J.

Petitioners Jonathan Greenfield, M.D., Jonathan Greenfield, M.D., P.A. (hereinafter " Dr. Greenfield" ), and Tenet St. Mary's, Inc., d/b/a St. Mary's Medical Center (hereinafter " St. Mary's" ), seek review of the decision of the Fourth District Court of Appeal in Daniels v. Greenfield, 15 So.3d 908 (Fla. 4th DCA 2009), on the ground that it expressly and directly conflicts with the decision of the Fifth District Court of Appeal in Achumba v. Neustein, 793 So.2d 1013 (Fla. 5th DCA 2001), on a question of law. Greenfield and St. Mary's filed their notices separately, but the two cases have been consolidated in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. As explained below, we approve the decision in Daniels v. Greenfield and, accordingly, disapprove the decision in Achumba to the extent it is inconsistent with this opinion.

FACTS AND PROCEDURAL HISTORY

The conflict issue in this case centers on whether, in a wrongful death action, a survivor's claim may be brought on behalf of a child who is alleged to be the decedent's biological child but whose mother was married to another man at the time of the child's conception and birth. If so, a further question arises as to whether the facts necessary to establish that the child qualifies as a " survivor" under section 768.18(1), Florida Statutes (2005), may be determined in a wrongful death action brought under chapter 768, Florida Statutes (2005), rather than in a paternity action brought under chapter 742, Florida Statutes (2005).1 The Fourth District in Daniels answered both questions in the affirmative and, as explained below, we agree.

This case arose from a wrongful death action filed by the estate of Shea Daniels (" the estate" ) in the Circuit Court in and for Palm Beach County in September 2007. Daniels committed suicide on September 18, 2005. The complaint filed by Daniels' mother as personal representative of his estate alleged that he was a psychiatric patient of Dr. Greenfield and was treated at St. Mary's Medical Center in September 2005. The complaint further alleged, in pertinent part, that Daniels was negligently discharged by Dr. Greenfield and by the hospital without a proper discharge assessment, even though his last assessment by a physician indicated he was possibly suicidal. The complaint sought relief for both the estate and for J.D., a minor child alleged to be the surviving biological son of the decedent and for whom noneconomic damages for loss of consortium were sought.

Dr. Greenfield filed a motion and amended motion for partial summary judgment alleging that a survivor claim could

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not properly be brought on behalf of J.D.2 The grounds asserted for summary judgment were that J.D.'s mother was married to someone other than the decedent when J.D. was conceived and born, the mother's husband's paternal rights had not been divested, and the husband was not a party to the estate's suit.

At the hearing on the motion for partial summary judgment, the circuit court ruled that

this is civil court, not the family court. The presumption [that the husband is the father] is rebuttable in family court not in civil court. As a matter of law, Mr. Washington [the mother's husband] is the father of the child until the family court says otherwise.

The court granted the motion for partial summary judgment relating to the survivor claims for J.D., citing in the written order the reasons set forth on the record at the hearing. The estate moved the court to rehear the motion, stay the case, and allow the estate to seek a paternity ruling in family court, but the motion was denied. The court entered a final judgment in favor of Dr. Greenfield and St. Mary's Medical Center as to all of the claims pertaining to J.D., again making reference to the grounds given at the hearing. The estate appealed to the Fourth District Court of Appeal.

The facts set forth in the Fourth District's decision are stated as follows:

[J.D.] was born to Rozine Cerine and the decedent, Shea Daniels. Rozine had been married to Willie Washington in 1999, but they separated in 2000 when Washington moved away and joined the military. She met Shea in May 2000, and [J.D.] was born in September 2001. Shea's name was listed on the birth certificate as the father.

Shea and Rozine had a difficult relationship, but he supported Rozine and [J.D.] by paying support of $50-70 per week. He also bought clothes for [J.D.]. His mother, Dorothy, visited with [J.D.] on occasion.

Rozine filed a petition to determine paternity and for child support against Shea in October 2004. Shea answered, demanding a DNA test, which was ordered but never conducted because Shea failed to appear. He was defaulted in the paternity proceeding, but a judgment establishing paternity was never entered. In November 2004, Rozine obtained a divorce from Willie Washington. The record does not contain a copy of the divorce decree.

Shea committed suicide in 2005, and his mother brought a wrongful death action on behalf of [J.D.] against a psychiatrist and hospital. Both answered and claimed that [J.D.] was not a survivor, because the presumption of legitimacy required that Willie Washington be deemed Shea's legal father. Thus, [J.D.] could not be a survivor of Shea.

During the proceedings, the plaintiff conducted a paternity test which showed that Shea was the biological father of [J.D.]. Although the court questioned whether such a test should have been authorized, it had granted a continuance for the plaintiff to obtain the test. The test merely confirmed what the birth certificate already recorded. Shea was [J.D.'s] father.

Despite the evidence supporting the fact that Shea was not only the biological father but also the only father that [J.D.] knew, the court held that because Rozine was married to Willie Washington when [J.D.] was born, the presumption of legitimacy required it to declare

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as a matter of law that Washington was [J.D.'s] legal father in the wrongful death action. The court granted the motion, excluding [J.D.] as a survivor of his biological father. It also refused a request to abate the wrongful death action to permit a paternity action to be instituted to declare Shea's paternity of [J.D.]. The personal representative appeals.

Daniels, 15 So.3d at 910. The Fourth District reversed the trial court, explaining:

We begin our own analysis with the statutory text. A survivor " includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child's support." § 768.18(1), Fla. Stat. The " child born" can refer only to a biological child. " Out of wedlock" means that the father and mother of the child were not married. Thus, the clear meaning of the phrase is that a...

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