Perkins v. Variety Children's Hospital

• Decision Date: 12 January 1982
• Docket Number: No. 80-1671,80-1671
• Citation: 413 So.2d 760
• Parties: Thomas PERKINS, as Personal Representative of the Estate of Anthony Perkins, a deceased minor, Appellant, v. VARIETY CHILDREN'S HOSPITAL, Appellee.
• Court: Florida District Court of Appeals

Page 760

413 So.2d 760

Thomas PERKINS, as Personal Representative of the Estate of Anthony Perkins, a deceased minor, Appellant, v. VARIETY CHILDREN'S HOSPITAL, Appellee.

No. 80-1671.

District Court of Appeal of Florida Third District.

Jan. 12, 1982.

Rehearing Denied May 18, 1982.

Fazio, Dawson, Steinberg & DiSlavo and Marcia E. Levine, Fort Lauderdale, for appellant.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.

Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.

FERGUSON, Judge.

The main issue in this appeal is whether a judgment recovered by a child for personal injuries during his lifetime bars a subsequent wrongful death action by his personal representative where the death is caused by the same injuries. We reverse the trial court and hold that the prior judgment is no bar.

Plaintiff Thomas Perkins, as the personal representative of the estate of the deceased minor son Anthony Perkins, filed a wrongful death action against defendant Variety Children's Hospital seeking damages for mental pain and anguish suffered by him and his wife as parents of the deceased minor and for the funeral expenses of the child. The defendant hospital answered the complaint affirmatively alleging that the plaintiff father had no right of action for the wrongful death because (1) the minor had already sued for the injury and had received a judgment which had been satisfied, (2) the statute of limitations for a personal injury action had expired prior to the time of the minor's death. The facts alleged in the affirmative defenses were admitted. The trial court denied plaintiff's motion to strike these defenses on the grounds that they were valid defenses, then entered a Final Summary Judgment for the hospital.

The parties agree that resolution of the main issue pivots on the interpretation to be given certain language in the Florida Wrongful Death Act, Section 768.19, Florida Statutes (1979). The Act provides in pertinent part:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, ... and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person ... that would have been liable for damages ... shall be liable for damages as specified in this act notwithstanding the death of the person injured... (emphasis added).

The crucial language from the statute is emphasized above. The threshhold question is whether, as advanced by appellee, the right of the parents to maintain a wrongful death action depends upon the child's right to sue for his personal injuries at the time of his death. In light of well-established Florida law, we must reject appellee's argument. A proper analysis of the questioned statutory language begins with a focus upon the event, i.e., whether the event causing injury is one which would have entitled the decedent to bring an action for personal injury. See, e.g., Epps v. Railway Express Agency, Inc., 40 So.2d 131 (Fla.1949); Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 266 A.2d 569 (N.J.1970) and cases compiled therein. See also W. Prosser, Law of Torts, § 127 (4th ed. 1971) ("The more reasonable interpretation would seem to be that [similar clauses in wrongful death statutes] are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather then to subsequent changes in the situation affecting only the interest of the decedent").

The Florida Supreme Court has consistently found that Section 768.19, Florida Statutes (1979), Wrongful Death Act, creates an independent cause of action in the statutory beneficiaries. The Act gives the beneficiaries the right to sue for their own damages and is independent from any right of the decedent to sue for his own injuries either prior to death or after death through a personal representative. Martin v. United Security Services, Inc., 314 So.2d 765 (Fla.1975); Moragne v. State Marine Lines, Inc., 211 So.2d 161 (Fla.1968) (right under statute independent from right of person originally injured), reversed on other grounds, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); ¹ Shiver v. Sessions, 80 So.2d 905 (Fla.1955); Epps v. Railway Express Agency, supra (separate right exists but applying principle of collateral estoppel) relying on Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934) (applying principle of estoppel by judgment to wrongful death action) and explaining Ake v. Birnbaum, 156 Fla. 735, 25 So. 213 (1945), on rehearing, (separate right; personal representative may sue for decedent's injuries). The supreme court in Epps specifically stated at 132, supra :

Florida's Wrongful Death Act creates an independent cause of action without regard to whether the injured person or his personal representative have ever initiated suit on the original cause of action.

This conclusion is the logical consequence of a finding that the statutory wrongful death action is not wholly derivative upon the decedent's right to sue for his own injuries at the time of his death. Accord Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). In Gaudet, the Court held that a widow of a longshoreman could maintain an action for the wrongful death of her husband after the decedent recovered damages in his lifetime for his injuries. Central to the Court's findings were the determinations that (1) the wrongful death statute--as do most--created an independent cause of action in favor of the decedent's dependents, Gaudet, 414 U.S. at 578, 94 S.Ct. at 811, 39 L.Ed. at 17, n.5, and (2) that recovery was not barred by res judicata or public policy, id., U.S. at 579, 94 S.Ct. at 811, 39 L.Ed.2d at 18, including the problem of double liability, id., U.S. at 583-95, 94 S.Ct. at 814-20, 39 L.Ed.2d at 20-26. See also Alfone v. Sarno, 87 N.J. 99, 432 A.2d 857 (N.J.1981), affirming, 168 N.J.Super. 315, 403 A.2d 9 (N.J.App.1979). Appellant is correct in arguing that under Florida law, the statutory language refers to the qualifying nature of the "event," and not to whether the decedent ever sued in his lifetime. Epps v. Railway Express Agency, supra.

In Warren v. Cohen, 363 So.2d 129 (Fla. 3d DCA 1978), the Third District Court of Appeal agreed that Section 768.19 created an independent cause of action but for public policy reasons held that a release executed by deceased bars a subsequent action for wrongful death. The holding of Warren, supra, is consistent with Shiver v. Sessions and the other cases cited, supra. ² The court in Warren, supra, however, was concerned with the public policy favoring the settling of lawsuits and its holding is limited to cases involving release or settlement. The public policy concern of Warren, that of settling lawsuits, has no application to preventing recovery where the decedent received a judgment compensating him for his injuries prior to death. There is no legislative or judicial authority in Florida for the proposition that a prior judgment for personal injury bars a subsequent wrongful death action. Nor can any such legislative intent be inferred. Section 768.20, Florida Statutes, expressly bars a personal injury recovery where death precedes a judgment on the claim. The statute is silent as to whether a judgment which precedes death ought to also bar a subsequent wrongful death action, from which it may be inferred, aside from all else, that no such bar was intended.

Nor is the specter of double recovery a compelling public policy argument for blocking a subsequent wrongful death action. It cannot be ignored that a judgment for personal injury by the decedent in his lifetime may be grossly inadequate to compensate for the subsequent death which is a result of the same injury especially where death was not contemplated. Though we have not found any Florida cases specifically discussing the policy considerations of avoiding double recovery and of achieving finality of litigation, existing cases, as well as the Florida negligence statute which particularly delineates recoverable damages, suggest that Florida recognizes those safeguards against double recovery which are discussed in Gaudet, and Alfone, both supra.

In the personal injury action the jury returned a verdict of $1,000,000.00 for the minor decedent and $200,000.00 to his parents for medical care. A portion of the award was for future losses and care. The child, who was only four-months old at the time of the injury, died a few months after the judgment was entered.

Future losses pose the greatest danger of double recovery--the chief concern of those in favor of barring a subsequent action. But wrongful death benefits are a supplement not a duplication of damages awarded to the decedent and prevention of double recovery is capable of management by the court on a case-by-case basis.

On the facts of this case fairness and equity require that those amounts awarded to decedent and the parents for pecuniary losses, pain and suffering and expenses to be incurred after the date of death ³ be set-off against the wrongful death award. This set-off should present no problem as Section 768.48(2) requires that a judgment for a patient against a health care provider itemize each category of damages into amounts intended to compensate for losses incurred prior to the verdict and amounts intended to compensate for losses to be incurred in the future. We reject the argument of appellee that there cannot be an award for pain and suffering to both the decedent and his survivor. Unlike the majority of jurisdictions, both are provided for by Florida law, Sections 768.21(4) and 768.48(1)(c). However, in a malpractice action this element of damage is also apportioned as between past and future and should present no set-off problem.

As a second issue on appeal it...