McKibben v. Mallory

• Decision Date: 20 March 1974
• Docket Number: No. 44653,44653
• Citation: 293 So.2d 48
• Parties: Lance W. McKIBBEN and Peggy S. McKibben, minors, By and Through the guardian of their person and property, Bryon McKibben, Plaintiffs, v. LeRoy T. MALLORY et al., Defendants.
• Court: Florida Supreme Court

Page 48

293 So.2d 48

Lance W. McKIBBEN and Peggy S. McKibben, minors, By and Through the guardian of their person and property, Bryon McKibben, Plaintiffs, v. LeRoy T. MALLORY et al., Defendants.

No. 44653.

Supreme Court of Florida.

March 20, 1974.

Edward M. Waller, Jr. of Fowler, White, Gillen, Kinney, Boggs & Villareal, Miami, for plaintiffs.

H. Vance Smith of MacFarlane, Ferguson, Allison & Kelly, Tampa, for defendants.

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

ROBERTS, Justice.

We have for consideration questions from the Thirteenth Judicial Circuit in and for Hillsborough County relating to the new wrongful death act, Chapter 72--35, Laws of Florida, designated as Sections 768.16 through 768.27, Florida Statutes, adopted by the Legislature during the 1972 legislative session and its affect on rights of action under previous Sections 768.01, 768.02 and 768.03, Florida Statutes, which were purportedly repealed by Chapter 72--35, Laws of Florida. In view of our recent decision in Kluger v. White, 281 So.2d 1 (Fla.1973), and there having been no overpowering public necessity for the abolishing of the right to bring actions of wrongful death of persons dying before July 1, 1972, the effective date of Chapter 72--35, Laws of Florida, the trial court found that it was presented with the constitutionality vel non of all or part of Chapter 72--35. The trial court has urged that the questions presented herein are determinative of this cause and are without controlling precedent in this state. We have jurisdiction to answer the certified questions. Florida Appellate Rules, Rule 4.6, 32 F.S.A., Jaworski v. City of Opa-Locka, 149 So.2d 33 (Fla.1963), Boyer v. City of Orlando, 232 So.2d 169 (Fla.1970), P. C. Lissenden Co. v. Board of County Commissioners, 116 So.2d 632 (Fla.1959).

The pertinent facts involved in the instant case as were stated in the Certificate of Questions by the trial court are as follows. Plaintiffs, the minor son and daughter of the decedent, filed an action seeking to recover damages for the alleged wrongful death of Marlin A. McKibben, Jr. on June 6, 1972. The action was originally filed on December 12, 1972, and an Amended Complaint was filed on April 20, 1973. To this Amended Complaint all Defendants filed a Motion to Dismiss on May 31, 1973 on the ground that there is no cause of action for the wrongful death of a person in Florida if the decedent died prior to July 1, 1972. After a hearing held on June 19, 1973 on Defendants' Motion, the trial court, on October 1, 1972, entered an Order Dismissing the Cause with Prejudice. Plaintiffs then filed their timely Motion for Rehearing and, in the Alternative, Motion for Certification of Question. After a hearing held on October 24, 1973, on Plaintiffs' Motion, the trial court, on November 15, 1973, entered an Order Setting Aside Order Dismissing Cause with Prejudice in Order to Certify Questions.

The following questions have been certified to us by the Circuit Court:

(1) Whether the repeal by Chapter 72--35 of Sections 768.01, 768.02 and 768.03 and the restriction of those portions of Chapter 72--35 designated as 768.16 through 768.27 to deaths occurring on and after July 1, 1972, terminated all rights of action for the wrongful deaths of persons dying prior to July 1, 1972 unless said rights of action had been reduced to judgment prior to the effective date of such repeal?

(2) If the answer to the preceding question is in the affirmative, does Article I, Section 21 of the Declaration of Rights of the Florida Constitution, F.S.A., as construed and applied in Kluger v. White render Chapter 72--35 unconstitutional and, if so, in the absence of a severability clause, are all provisions of Chapter 72--35 unconstitutional or only that provision repealing Sections 768.01, 768.02 and 768.03?

(3) If the answer to the first question set forth above is in the negative, which statutory provisions control the determination of the proper party plaintiffs and damages recoverable in an action for wrongful death occurring prior to July 1, 1972?

The problem in the instant cause arises from the Legislature's enactment of a revised wrongful death act (Chapter 72--35; Laws of Florida) in 1972 in an attempt to cure defects in the previous acts, Sections 768.01--768.03, Florida Statutes, which had become evident by studies and decisions of the courts in this state pointing to harsh results effected by the 'old' wrongful death acts. In the enactment of Chapter 72--35, designated as Sections 768.16-- 768.27, Florida Statutes, the Legislature included the following provisions:

'768.27 Effective date.--Sections 768.16 through 768.27 shall take effect on July 1, 1972, and shall not apply to deaths occurring before that date.

'Section 2. Sections 768.01, 768.02, and 768.03, Florida Statutes, are repealed when this Act takes effect.'

Since in the cause sub judice plaintiffs' father died prior to July 1, 1972, defendants contend that the result of the 'repeal' of Sections 768.01--768.03, Florida Statutes, was to abolish and dissipate any cause of action for wrongful death of any person in Florida when death occurred prior to July 1, 1972, unless the right of action had been reduced to judgment. Plaintiffs contend that the Legislature did not intend to abrogate causes of actions for deaths occurring prior to July 1, 1972, but rather intended that the new act which would constitute a consolidation of wrongful death statutes of Florida into one cohesive scheme, apply to deaths occurring subsequent to the effective date of that act and that the preceding statutes continue to apply to wrongful deaths occurring prior to that date.

The Legislature relative to the concept of wrongful death could not abrogate vested rights of citizens of this state to recover damages for wrongful death without providing an alternative since Florida has had a wrongful death act since 1883 providing for recovery as is sought by plaintiffs sub judice and since the rights under Sections 768.01--768.03, Florida Statutes, F.S.A., accrued on the death of decedent And in view of legislative intent to continue causes of action for wrongful death in this state. This is true under the particular facts of this case relative to wrongful death actions since this Court has held in Florida Power and Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911, 918 (1938), relative to a plaintiff's right to assert a cause under Sections 768.01--768.03, Florida Statutes, F.S.A., that,

'This right became vested before her marriage and her subsequent marriage does not so change her status so as to deprive her of this right nor does it make her an adult.'

In a compilation of authorities relative to the subject of the retroactive effect of statutes changing the manner and method of distribution of recovery or settlement for wrongful death contained in 66 A.L.R.2d at 1445, the author found, that,

'The rationale of this rule is that upon a death by wrongful act a right to participate in the damages recovered for the wrongful death vests in the persons entitled to such recovery under the wrongful death statute then in effect, and that they will not be deprived of this vested right by a subsequent amendment of the statute changing the manner or method of distributing the damages recoverable in such an action.'

See also: In Re Weaver, 195 Misc. 405, 90 N.Y.S.2d 770 (N.Y.1949) and In Re Brennan, 160 App.Div. 401, 145 N.Y.S. 440 (N.Y.1914).

We find in 22 Am.Jur.2d Death, Section 7, page 611, authority for the proposition that,

'Statutes which create a cause of action for wrongful death or which change the rights under an existing death statute are ordinarily not given a retroactive effect unless the legislature has clearly expressed an intention that such effect should be given.'

In enacting the present wrongful death statute, the Legislature does not provide that causes of actions accruing under the old statute be obliterated.

Defendants' contention as to the result effected by the new act is untenable in light of the clear legislative intent in adopting Chapter 72--35, Laws of Florida, and in view of the fact that plaintiffs' cause of action for wrongful death vested at the death of their father. Not only would defendants' argument abrogate legislative intent but also such an interpretation would render a portion of the act unconstitutional since such an interpretation would tend to destroy vested rights of action.

It is a fundamental rule of construction that a statute be construed in such a way so as to effectuate legislative intent and that all doubts as to the validity of a statute should be resolved in favor of its constitutionality. City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla.1950), State ex rel. Shevin v. Metz Construction Co., Inc., 285 So.2d 598 (Fla.1973), Florida Jai Alai, Inc. v. Lake Howell Water and Reclamation District, 274 So.2d 522 (Fla.1973), Tornillo v. Miami Herald Publishing Co., 287 So.2d 78 (Fla.1973). If a statute is susceptible of two constructions one of which will give effect to it and the other which will defeat it, the former construction is preferred. Florida Sugar Distributors v. Wood, 135 Fla. 126, 184 So. 641 (1938). Construction of a statute which would lead to an absurd result should be avoided. City of Miami v. Romfh, 66 Fla. 280, 63 So. 440 (1913), State v. Willis, 124 So.2d 48 (Fla.App.1960).

It is a fundamental principle that courts will not pass upon the constitutionality of a statute where the case before them may be disposed of upon any other ground. Mounier v. State, 178 So.2d 714 (Fla.1965), Frazier v. Coleman, 156 Fla. 413, 23 So.2d 477 (1945). In the instant cause, a determination as to constitutionality vel non of the new act is not required. However, this result does not divest us of jurisdiction. P. C. Lissenden Co., Inc. v. Board of County Commissioners of Palm Beach County, supra, De Jong v....