Resmondo v. International Builders of Fla., Inc., Q-351

Decision Date25 July 1972
Docket NumberNo. Q-351,Q-351
Citation265 So.2d 72
PartiesEllene B. RESMONDO, Plaintiff, v. INTERNATIONAL BUILDERS OF FLORIDA, INC., a corporation, et al., Defendants.
CourtFlorida District Court of Appeals

Roderic G. Magie, of Levin, Warfield, Graff, Mabie & Rosenbloum, Pensacola, for plaintiff.

Charles R. Timmel, of Timmel, Handley & Campbell, Fort Walton Beach, for defendants.

PER CURIAM.

Pursuant to Florida Appellate Rule 4.6, 32 F.S.A., the Circuit Court of the First Judicial Circuit for Escambia County has certified the following question to this Court, to wit:

'Where a husband is injured as a result of alleged negligence as a result of an accident which occurred on or about August 18, 1967, the husband subsequently files suit which such suit is subsequently settled in December, 1969 by stipulation and entry of consent judgment without a finding of fault and cancellation of such judgment as attached hereto, may the wife of the defendant at the time of the accident and settlement maintain a cause of action for loss of care, affection and consortium following settlement of such prior suit?'

The trial court in its order of certification, after citing Gates v. Foley, 1 stated: '. . . this Court being of the opinion that such case is not clear precedent to the issues herein and that there is no other controlling precedent upon which to determine the issues herein . . .' We agree with the trial court and therefore entertain the question as certified.

Prior to the Supreme Court's decision in Gates, this State clearly followed the common law doctrine that a wife did not possess a cause of action for loss of consortium. 2 Just as clearly, however, did Gates abrogate the prior decisions of the Supreme Court and establish a right of action on the part of a wife for loss of consortium. The following statement in Gates creates the lack of controlling precedent as to the instant cause:

'. . . We further hold that her right of action is a derivative right and she may recover only if her husband has a cause of action against the same defendant. This means that the tort-feasor was negligent and the husband was free from contributory negligence.'

Here, the statement of facts reflect that a consent judgment was entered in favor of the husband against the same defendant. The said judgment did not find that the defendant tort-feasor was negligent and the husband was free from contributory negligence. Thus, the ultimate question is: Did the instant...

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16 cases
  • Jaffe v. Accredited Surety and Casualty Co., Inc.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 25, 2002
    ...identical claims. Rather, a derivative claim may fail while the principal claim succeeds. See, e.g., Resmondo v. Int'l Builders of Fla., Inc., 265 So.2d 72, 73-74 (Fla.Dist.Ct.App. 1972). 7. Jaffe contends that the district court should have applied judicial estoppel to bar Accredited from ......
  • ACandS, Inc. v. Redd
    • United States
    • Florida District Court of Appeals
    • December 10, 1997
    ...Ryter v. Brennan, 291 So.2d 55 (Fla. 1st DCA), cert. denied, 297 So.2d 836 (Fla.1974); and Resmondo v. International Builders of Florida, Inc., 265 So.2d 72 (Fla. 1st DCA 1972). We do not read these cases as the Taylor court did. Rather, instead of reading these cases as standing for the pr......
  • Sammons v. Greenfield, Case No. 2D17-755
    • United States
    • Florida District Court of Appeals
    • October 19, 2018
    ...injury. Id. (citing Gates, 247 So. 2d at 41; Ryter v. Brennan, 291 So. 2d 55, 57 (Fla. 1st DCA 1974); Resmondo v. Int'l Builders of Fla., Inc., 265 So. 2d 72, 73 (Fla. 1st DCA 1972)). Finally, the Randall court rejected the Third District's reliance in AC&S on the fact that the legislature ......
  • Metropolitan Dade County v. Reyes
    • United States
    • Florida Supreme Court
    • December 19, 1996
    ...see also Ryter v. Brennan, 291 So.2d 55 (Fla. 1st DCA), cert. denied, 297 So.2d 836 (Fla.1974); Resmondo v. International Builders of Fla., Inc., 265 So.2d 72 (Fla. 1st DCA 1972) (both cases holding that husband's release did not abate wife's cause of action for loss of consortium, which wa......
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