Ripple v. CBS Corp.

• Decision Date: 30 March 2022
• Docket Number: 4D20-1939
• Citation: 337 So.3d 45
• Parties: Jennifer RIPPLE, as personal representative of the Estate of Richard D. Counter, deceased, Appellant, v. CBS CORPORATION, General Electric Company, The Goodyear Tire & Rubber Company, John Crane Inc., and Warren Pumps, LLC, Appellees.
• Court: Florida District Court of Appeals

337 So.3d 45

Jennifer RIPPLE, as personal representative of the Estate of Richard D. Counter, deceased, Appellant,

v.CBS CORPORATION, General Electric Company, The Goodyear Tire & Rubber Company, John Crane Inc., and Warren Pumps, LLC, Appellees.

No. 4D20-1939

District Court of Appeal of Florida, Fourth District.

[March 30, 2022]

Mathew D. Gutierrez and Juan P. Bauta, II, of The Ferraro Law Firm, P.A., Miami, for appellant.

Matthew J. Conigliaro of Carlton Fields, P.A., Tampa, for appellees.

Per Curiam.

In this case involving Florida's Wrongful Death Act, the decedent's estate appeals from the circuit court's final judgment in the defendants’ favor. The final judgment was based on the circuit court's orders granting the defendants’: (1) motion for judgment on the pleadings as to the decedent's wife's damages claim; and (2) motion for summary judgment as to the decedent's adult children's alternative damages claim.

On appeal, the estate raises a primary argument and an alternative argument. The estate's primary argument is that this court, in Kelly v. Georgia-Pacific, LLC , 211 So. 3d 340 (Fla. 4th DCA 2017), erred in holding that a spouse who had married a person after the person was injured, and the injured person later dies, is barred from recovering "for loss of the decedent's companionship and protection and for mental pain and suffering" under section 768.21(2) of the Wrongful Death Act.

The estate's alternative argument is that, if a spouse who had married the decedent after the decedent's injury is barred from recovering damages under section 768.21(2) of the Wrongful Death Act (per Kelly ), then the decedent's surviving adult children may recover "for lost parental companionship, instruction, and guidance and for mental pain and suffering" under section 768.21(3) of the Wrongful Death Act.

On the estate's primary argument, we affirm based on Kelly , though we certify conflict between Kelly and Domino's Pizza, LLC v. Wiederhold , 248 So. 3d 212 (Fla. 5th DCA 2018). In Domino's , the Fifth District expressly disagreed with Kelly and instead held that a spouse who had married a person after the person was injured, and the person later dies, is not barred from recovering "for loss of the decedent's companionship and protection and for mental pain and suffering" under section 768.21(2) of the Wrongful Death Act.

However, on the estate's alternative argument, which comes to us as an issue of first impression, we agree with the estate that, if a spouse who had married the decedent after the decedent's injury is barred from recovering damages under section 768.21(2) of the Wrongful Death Act (per Kelly ), then the decedent's surviving adult children may recover "for lost parental companionship, instruction, and guidance and for mental pain and suffering damages" under section 768.21(3) of the Wrongful Death Act.

We present this opinion in five parts:

I. The decedent's pre-death personal injury complaint;

II. The estate's wrongful death amended complaint;

III. The defendants’ motion for judgment on the pleadings;

IV. The defendants’ motion for summary judgment; and

V. Our review.

I. The Decedent's Pre-Death Personal Injury Complaint

In 2015, the decedent filed his original personal injury complaint, the allegations of which we are required to accept as true. See Miller v. Finizio & Finizio, P.A. , 226 So. 3d 979, 982 (Fla. 4th DCA 2017) ("Where a defendant moves for judgment on the pleadings, a court must take as true all of the material allegations in the plaintiff's complaint and must disregard all of the denials in the defendant's answer.").

According to the complaint, from the 1950s through the 1990s, the decedent was exposed to asbestos, which is a toxic substance that may cause mesothelioma

. The decedent allegedly inhaled asbestos while at sea during military service, while working at various industrial plants, and at his own home.

On May 22, 2015, the decedent was diagnosed with mesothelioma

. Less than two months later, on July 4, 2015, the decedent married the woman with whom he had lived for decades ("the wife"). On July 23, 2015, the decedent filed his original personal injury complaint. His complaint alleged common law negligence and strict liability actions against multiple defendants, and sought damages for his injuries.

Less than four months later, on November 1, 2015, the decedent died from mesothelioma

. He was survived by the wife and two adult children from a prior marriage.

II. The Estate's Wrongful Death Amended Complaint

The wife—in her capacity as the decedent's estate's personal representative—immediately and successfully sought leave to amend the complaint. The amended complaint replaced the decedent's common law personal injury claims with the estate's claim to recover damages for the wife under section 768.21(2) of the Wrongful Death Act or, in the alternative, damages for the decedent's adult children under section 768.21(3) of the Wrongful Death Act.

The Wrongful Death Act authorizes a decedent's personal representative to "recover for the benefit of the decedent's survivors ... all damages , as specified in [the] act, caused by the injury resulting in death." § 768.20, Fla. Stat. (2015) (emphases added).

Pertinent here, the Wrongful Death Act defines "survivors" as "the decedent's spouse, [and] children." § 768.18(1), Fla. Stat. (2015). The Wrongful Death Act's "damages" provision pertinently 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.

(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse , may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. ...

§ 768.21(1) - (3), Fla. Stat. (2015) (emphases added).

The defendants filed their respective answers denying the amended complaint's material allegations, including the wife's damages claim and the adult children's alternative damages claim.

III. The Defendants’ Motion for Judgment on the Pleadings

The defendants then filed a motion for judgment on the pleadings as to both the wife's damages claim and the adult children's alternative damages claim.

As to the wife's damages claim, the defendants argued she was barred from recovering "for loss of the decedent's companionship and protection and for mental pain and suffering" under section 768.21(2) of the Wrongful Death Act because she "and [the decedent] were not married at the time of [the decedent's] alleged exposure to asbestos," and thus she did not qualify as the decedent's "surviving spouse" as that term is used in section 768.21(2). More specifically, the defendants argued:

Florida follows the common-law rule that "a party must have been legally married to the injured person at the time of the injury in order to assert a claim for loss of consortium." Fullerton v. Hosp[.] Corp[.] of Am[.] , 660 So. 2d 389, 390 (Fla. 5th DCA 1995) (citing Tremblay v. Carter , 390 So. 2d 816, 817 (Fla. 2d DCA 1980) (holding that when an accident occurs prior to the existence of a relationship of husband and wife, a person cannot acquire the right to claim a loss of consortium when a person subsequently marries the injured party)); Kelly v. Georgia-Pacific, LLC , 211 So. 3d 340 (Fla. 4th DCA 2017) (holding that when the decedent was exposed to asbestos in 1973-74 and married his wife in 1976, the decedent's wife may not recover loss of consortium damages in a wrongful death asbestos suit). The rationale behind this rule is that a person may not marry into a cause of action and that a line must be drawn somewhere as to liability. Id.

As to the adult children's alternative damages claim, the defendants argued the adult children were barred from recovering "for lost parental companionship, instruction, and guidance and for mental pain and suffering" under section 768.21(3) of the Wrongful Death Act because the wife qualified as a "surviving spouse" as that term is used in section 768.21(3).

The estate filed a response arguing this court, in Kelly , erred in holding that a spouse, who had married the decedent after the decedent's injury, is barred from recovering "for loss of the decedent's companionship and protection and for mental pain and suffering" under section 768.21(2) of the Wrongful Death Act. Instead, the estate argued, the Fifth District, in Domino's Pizza, LLC v. Wiederhold , 248 So. 3d 212 (Fla. 5th DCA 2018), properly held that a spouse who had married the decedent after the decedent's injury is not barred from recovering "for loss of the decedent's companionship and protection and for mental pain and suffering" under section 768.21(2) of the Wrongful Death Act. More specifically, the estate argued:

[I]n Domino's ..., the Fifth District adopted the "common and ordinary" meaning of the term "surviving spouse," which, as the [Fifth District] noted, is "a married person who outlives his or her husband or wife," irrespective of whether the marriage commenced before or after the decedent-spouse's exposure to asbestos. . Under [ Domino's ], because [the wife there] outlived her husband, she [was] eligible to recover [under the Act] as [the decedent's] ["]surviving spouse.["]

Acco

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