Kelly v. Georgia-Pacific, LLC, 4D15–4666

• Citation: 211 So.3d 340
• Decision Date: 22 February 2017
• Docket Number: No. 4D15–4666,4D15–4666
• Parties: Janis KELLY, as Personal Representative of the Estate of John K. Kelly, Appellant, v. GEORGIA–PACIFIC, LLC, Union Carbide Corp., Premix–Marbletite Manufacturing Co., and Imperial Industries, Inc., Appellees.
• Court: Court of Appeal of Florida (US)

211 So.3d 340

Janis KELLY, as Personal Representative of the Estate of John K. Kelly, Appellant,

v.GEORGIA–PACIFIC, LLC, Union Carbide Corp., Premix–Marbletite Manufacturing Co., and Imperial Industries, Inc., Appellees.

No. 4D15–4666

District Court of Appeal of Florida, Fourth District.

February 22, 2017

Paulo R. Lima, Juan P. Bauta II, and Amanda A. Kessler of The Ferraro Law Firm, P.A., Miami, for appellant.

Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, and Stuart A. Weinstein and Laura E. Eggnatz of Shapiro, Blasi, Wasserman & Hermann, P.A., Boca Raton, for appellee Georgia–Pacific, LLC.

Matthew J. Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, and Ryan S. Cobbs of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellee Union Carbide Corporation.

Levine, J.

The question presented for our review is whether the Florida Wrongful Death Act supersedes the common law requirement that a spouse must be married to the decedent before the date of the decedent's injury to recover damages for loss of consortium. Stated another way, did the legislative enactment, giving the estate's representatives and survivors a remedy not found in the common law, "explicitly," "clearly," and "unequivocally" abrogate the common law requirements to recover consortium damages when those damages are awarded under the Wrongful Death Act. Because there can be no change in the common law unless the statute is "explicit and clear in that regard" and the Wrongful Death Act does not "explicitly," "clearly," and "unequivocally" abrogate the common law rule, we hold that a spouse who was not married to a decedent at the time of the decedent's injury may not recover consortium damages as part of a wrongful death suit. Thus, we find that the trial court did not err in entering an order of dismissal, and subsequently entering a final judgment. We therefore affirm.

John Kelly and his wife, Janis Kelly, filed an action against appellees for negligence, strict liability, and for Janis Kelly's loss of consortium. During the course of the litigation, the husband died, and the 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 decedent worked in construction and was exposed to asbestos during the years of 1973 to 1974. The decedent and appellant did not marry until 1976. In 2014, the decedent was diagnosed with mesothelioma

and alleged that his exposure to asbestos caused the disease. The decedent died from mesothelioma in 2015.

Appellees 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 and that the wrongful death claim sought damages for loss of consortium. Appellees argued it was undisputed that appellant was not married to the decedent when the decedent was injured. The trial court granted the motion to dismiss and dismissed that portion of appellant's complaint seeking consortium damages under the Wrongful Death Act. Appellant then voluntarily dismissed the remaining claims for negligence and strict liability. The trial court entered a final judgment, and this appeal ensued.

The standard of review that we use is de novo. Solorzano v. First Union Mortg. Corp. , 896 So.2d 847, 849 (Fla. 4th DCA 2005).

The tort of wrongful death did not exist at common law, and a personal injury claim did not survive the death of the injured party. Nissan Motor Co. v. Phlieger , 508 So.2d 713, 714 (Fla. 1987). As a result, the Florida Legislature created a cause of action, wrongful death, to allow for a claim that survived the death of the injured party. See § 768.16, Fla. Stat. (2015).

The purpose of the Florida Wrongful Death Act is to provide a "separate and independent" cause of action since the original cause of action for personal injury did "not survive" the death of the injured party. City of Pompano Beach v. T.H.E. Ins. Co. , 709 So.2d 603, 605 (Fla. 4th DCA 1998). The passage of the Wrongful Death Act remedied this "anomaly." Variety Children's Hosp. v. Perkins , 445 So.2d 1010, 1012 (Fla. 1983). It is "thus clear that the paramount purpose of the Florida Wrongful Death Act is to prevent a tortfeasor from evading liability for his misconduct when such misconduct results in death." Id. Thus, the statute explicitly, clearly, and unequivocally supersedes the common law by allowing the wrongful death cause of action to proceed even after the death of the injured party. See id.

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

the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It 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. (2015).

As to damages, the Wrongful Death Act provides:

(1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.

(2) 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.

§ 768.21, Fla. Stat. (2015). These damages "are inclusive of a spouse's loss of consortium damages" and allows for a spouse to recover damages for loss of consortium even after the decedent's death. See 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"). Indeed, in this case, after the decedent died, appellant amended her complaint to replace her loss of consortium claim with a wrongful death claim that included a demand for the same exact damages as her prior loss of consortium claim.

Finally, the legislature announced that the public policy for the creation of the statute was to "shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer." § 768.17, Fla. Stat. (2015). The statute is "remedial" and "shall be liberally construed." Id. Nevertheless, although the statute is "remedial," "we cannot construe the statutory provisions so ‘liberally’ as to reach a result contrary to the clear intent of the legislature." Stern v. Miller , 348 So.2d 303, 308 (Fla. 1977).

Appellant argues that the passage of the Wrongful Death Act, explicitly, clearly, and unequivocally superseded the common law relating to the damages resulting from "loss of consortium." Under the loss of consortium tort, the plaintiff may recover damages for the loss of

the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation.

Consortium means much more than mere sexual relation and consists, also, of that affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage.

Gates v. Foley , 247 So.2d 40, 43 (Fla. 1971).

Significantly, under the common law of loss of consortium, the parties must have been married to one another at the time of the injury to recover damages for loss of consortium. Tremblay v. Carter , 390 So.2d 816, 817 (Fla. 2d DCA 1980). As the court in Tremblay explained, the rationale for the common law rule is that

[s]ince a cause of action for personal injury and the derivative rights flowing therefrom ordinarily accrue when the tort is committed, the courts concluded that to permit an unmarried person to claim loss of consortium upon his marriage to an injured spouse would have the effect of allowing him to marry into the cause of action.

Id.

In the present case, the decedent's injury occurred when he was exposed to asbestos. See Am. Optical Corp. v. Spiewak , 73 So.3d 120, 129 (Fla. 2011) ("Here, a foreign substance—asbestos fibers—were inhaled and became embedded in the lungs of the plaintiffs without their knowledge or consent. This, like the electric shock suffered by the plaintiff in Clark [v. Choctawhatchee , 107 So.2d 609 (Fla. 1959) ], constitutes an actual injury that has been inflicted upon the bodies of the plaintiffs."). Thus, because the decedent was injured before appellant married him, for appellant to prevail in her claim, we must find that the Wrongful Death Act specifically supersedes the common law of loss of consortium.

We look to the language of the Wrongful Death Act. In interpreting a statute, "the plain meaning of the statutory language is the first consideration." St. Petersburg Bank & Trust Co. v. Hamm , 414 So.2d 1071, 1073 (Fla. 1982). There is, of course, the rule of statutory interpretation stating that statutes in derogation of the common law are to be strictly construed. Carlile v. Game & Fresh Water Fish Comm'n , 354 So.2d 362, 364 (Fla. 1977). But since the Wrongful Death Act is a remedial statute, ...