Martin v. United Sec. Services, Inc.

• Decision Date: 23 April 1975
• Docket Number: Nos. 44651 and 45702,s. 44651 and 45702
• Parties: Beverly C. MARTIN, as Administratrix c.t.a. of the Estate of Joyce Chesworth Atchley, Deceased, Appellant, v. UNITED SECURITY SERVICES, INC., a corporation, Appellee. James MOBLEY, as Administrator of the Estate of James Kelvin Mobley, Deceased, et al., Petitioners, v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, a Florida Corporation, et al., Respondents.
• Court: Florida Supreme Court

Page 765

314 So.2d 765

Beverly C. MARTIN, as Administratrix c.t.a. of the Estate of Joyce Chesworth Atchley, Deceased, Appellant, v. UNITED SECURITY SERVICES, INC., a corporation, Appellee.

James MOBLEY, as Administrator of the Estate of James Kelvin Mobley, Deceased, et al., Petitioners, v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, a Florida Corporation, et al., Respondents.

Nos. 44651 and 45702.

Supreme Court of Florida.

April 23, 1975.

Rehearings Denied July 18, 1975.

Charles P. Pillans, III, Bedell, Bedell, Dittmar, Smith & Zehmer, Jacksonville, for appellant.

Arnold R. Ginsberg, Fuller, Brumer, Moss, Cohen & Rodgers, and Horton & Perse, Miami, for petitioners.

Marion R. Shepard, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.

William E. Sadowski, Helliwell, Melrose & DeWolf, Miami, for respondents.

Robert Orseck, Podhurst, Orseck & Parks, Miami, for Academy of Florida Trial Lawyers, amicus curiae.

OVERTON, Justice.

These two cases concern the constitutionality of Florida's new Wrongful Death Act, Sections 768.16--768.27 Florida Statutes (1973). ¹ Specifically, we are asked to determine whether the new Act has constitutionally eliminated claims under the survival statute, Section 46.021, Florida Statutes (1973), for (1) pain and suffering of a decedent and (2) punitive damages pursuant to Atlas Properties, Inc. v. Didich, 226 So.2d 684 (Fla.1969).

In Martin v. United Security Services, Inc., the Circuit Court for Duval County specifically upheld the constitutionality of Sections 768.16--768.27, and, by granting a motion to strike, denied the plaintiff-appellant's claim for punitive damages. In Mobley v. American Bankers Insurance Company, the Circuit Court for Dade County certified the constitutionality of these statutory provisions to this Court as a question of great public interest. In both cases jurisdiction vests in this Court pursuant to Article V, Section 3(b), Florida Constitution.

We hold that Sections 768.16--768.27, Florida Statutes, are constitutional to the extent that they consolidate survival and wrongful death actions and substitute for a decedent's pain and suffering the survivors' pain and suffering as an element of damages. We further hold that punitive damages are not eliminated by the Act and may be recovered once for each death in an action under said sections if the facts justify the imposition of this penalty.

Prior Statutory Actions Involving a Death by Wrongful Act

Prior to the enactment of the statutory provisions now under attack, the statutes pertaining to negligent death cases were the subject of considerable litigation and judicial construction. E.g., Stokes v. Liberty Mutual Insurance Company, 213 So.2d 695 (Fla.1968); Sinclair Refining Co. v. Butler, 190 So.2d 313 (Fla.1966). Under these prior statutory provisions, two separate and independent causes of action could be brought for a negligently caused death. Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213 (1946); Epps v. Railway Express Agency, 40 So.2d 131 (Fla.1949); Shiver v. Sessions, 80 So.2d 905 (Fla.1955); Parker v. City of Jacksonville, 82 So.2d 161 (Fla.1955).

First, the administrator of a decedent's estate could maintain a survival action on behalf of the deceased under Section 46.021, Florida Statutes. The elements of damage recoverable under this statutory provision were the decedent's pain and suffering, ² medical expenses, ³ loss of earnings between the time of the accident and his death, ⁴ and funeral expenses. ⁵ Punitive damages were also recoverable under this statute. ⁶

Second, a widow, a widower, a surviving child, a dependent, or an administrator could maintain a wrongful death action under the prior provisions of Chapter 768, Florida Statutes. The elements of damages recoverable under these prior wrongful death statutory provisions were: A widow's claim for loss of support, future estate, comfort, companionship, protection, and marital relations, together with the loss of services in taking care of the family ⁷ and loss of support for the minor children; ⁸ a widower's claim for loss of his wife's consortium and services; ⁹ a child's claim for the loss of support, care, comfort, companionship, protection, education, and moral training of his parent or parents; ¹⁰ a dependent's claim for loss of support from the decedent; ¹¹ the parents' claim for loss of services of their child and for their respective pain and suffering; ¹² and the personal representative's claim by separate action for loss of future estate. ¹³ See generally Sections 768.01--768.03, Florida Statutes (1971); Florida Civil Practice Damages Manual, § IV (1967--1968).

New Consolidated Statutory Action for a Death by Wrongful Act

The new statutes, styled the 'Florida Wrongful Death Act,' ¹⁴ are a product of the Florida Law Revision Commission ¹⁵ and were intended to merge the survival action for personal injuries and the wrongful death action into one lawsuit. Section 768.19 ¹⁶ of the new Act provides for a cause of action in wording similar to that of now repealed Section 768.01. Section 768.20, which is substantially different from the predecessor statute, establishes who may bring the action and the manner in which it is brought. This provision is set forth and analyzed in a subsequent part of this opinion. Finally, Section 768.21, here set forth in full, specifies the items of damage recoverable under the new Act:

'768.21 Damages.--All potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:

'(1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to this 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.

'(3) Minor children of the decedent may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.

'(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury.

'(5) Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them.

'(6) The decedent's personal representative may recover for the decedent's estate the following:

'(a) Loss of earnings of the deceased from the date of injurt to the date of death, less lost support of surivivors excluding contributions in kind, with interest. If the decedent's survivors include a surviving spouse or lineal descendants, loss of net accumulations beyond death and reduced to present value may also be recovered.

'(b) Medical or funeral expenses due to the decedent's injury or death that have become a charge against his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).

'(c) Evidence of remarriage of the decedent's spouse is admissible.

'(7) All awards for the decedent's estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.'

In summary, the items of damage recoverable under new Section 768.21 allow each specified survivor to recover for (1) loss of past and future support and services; (2) loss of companionship and protection; and (3) his or her Own mental pain and suffering from the date of the injury. The personal representative of the estate may recover for medical expenses, funeral expenses, and loss of earnings.

In merging the two prior actions, the legislature transferred the items of damage for loss of earnings, medical expenses, and funeral expenses from the survival statute to the new Wrongful Death Act. The claim for pain and suffering of the decedent from the date of injury to the decedent was eliminated. Substituted therefor was a claim for pain and suffering of close relatives, the clear purpose being that any recovery should be for the living and not for the dead. ¹⁷ It is the alleged failure of the Act to provide precise notice of this change that has caused the claim of unconstitutionality.

Constitutionality of the New Wrongful Death Act; Pain and Suffering Damages

The title of the new Wrongful Death Act, Chapter 72--35, Laws of Florida 1972, is as follows:

'An Act relating to wrongful death action; amending chapter 768, Florida Statutes, by adding sections 768.16, . . . 768.20, 768.21 . . .; providing for a right of action on behalf of the survivors and the estate by the personal representative of a decedent whose death is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person; repealing sections 768.01, 768.02, and 768.03, Florida Statutes; providing an effective date.'

It is contended that (1) the legislature was misled by lack of notice in the title that damages resulting from the decedent's pain and suffering were being abolished in the body of the Act, and (2) the legislature cannot eliminate an established right without providing a suitable alternative.

The first of these contentions turns ultimately upon our interpretation of that portion of Section 768.20 relating to the abatement of actions for personal injuries resulting in death. This is a crucial subissue which we must resolve...