Zorzos v. Rosen By and Through Rosen

• Decision Date: 04 April 1985
• Docket Number: No. 65239,A-C,65239
• Citation: 467 So.2d 305,10 Fla. L. Weekly 190
• Parties: 10 Fla. L. Weekly 190 Michael ZORZOS, Royal Insurance Company of Canada, a foreign corporation, Champion Services, Inc. d/b/a Budget Rent-ar of Clearwater, Florida and National Union Fire Insurance Company Pittsburg, a New York corporation, Petitioners, v. Stephen Joel ROSEN, a minor By and Through his father and next friend, Michael ROSEN and Barbara Beth Rosen, a minor, By and Through her father and friend, Michael Rosen, Respondents.
• Court: Florida Supreme Court

Page 305

467 So.2d 305

10 Fla. L. Weekly 190

Michael ZORZOS, Royal Insurance Company of Canada, a foreign corporation, Champion Services, Inc. d/b/a Budget Rent-A-Car of Clearwater, Florida and National Union Fire Insurance Company Pittsburg, a New York corporation, Petitioners, v. Stephen Joel ROSEN, a minor By and Through his father and next friend, Michael ROSEN and Barbara Beth Rosen, a minor, By and Through her father and friend, Michael Rosen, Respondents.

No. 65239.

Supreme Court of Florida.

April 4, 1985.

James A. Murman of Barr, Murman and Tonelli, Tampa, for Michael Zorzos and Royal Ins. Co. of Canada.

Chris W. Altenbernd and George A. Vaka of Fowler, White, Gillen, Boggs, Villareal and Banker, Tampa, for Champion Services, Inc., d/b/a Budget Rent-A-Car of Clearwater and Nat. Union Fire Ins. Co.

Walton B. Hallowes, Jr. of Wells, Gattis, Hallowes and Carpenter, Orlando, for respondents.

Marjorie Gadarian Graham of Jones and Foster, West Palm Beach, Florida and Professor Michael L. Richmond of Nova University Center for the Study of Law, Fort Lauderdale, amicus curiae for The Florida Defense Lawyers' Ass'n.

Richard A. Kupfer of Cone, Wagner, Nugent, Johnson, Hazouri and Roth, West Palm Beach, and Davis S. Schrager as President of ATLA, Philadelphia, amici curiae for The Ass'n of Trial Lawyers of America and The Academy of Florida Trial Lawyers.

SHAW, Justice.

This case is before the Court because of certified direct conflict between the decision below, Rosen v. Zorzos, 449 So.2d 359 (Fla. 5th DCA 1984), and various decisions of other district courts. We have jurisdiction. Art. V, § 3(b) and 4, Fla. Const.

Michael and Gail Rosen, in one automobile, collided with an automobile driven by petitioner Zorzos. As a result, Gail Rosen died and Michael Rosen was injured. Stephen and Barbara Rosen, plaintiffs below, are the minor children of Michael and Gail Rosen. In an earlier action Michael, as personal representative of Gail's estate, won a wrongful death action against petitioners. In addition, Michael recovered a substantial settlement in a personal injury action against petitioners Champion Services, Inc. and National Union Fire Insurance Company of Pittsburg. Both of those actions were filed in the Thirteenth Judicial Circuit. Thereafter, on behalf of Stephen and Barbara, Michael filed the present suits in the Ninth Judicial Circuit seeking damages for the lost care, comfort, society, parental companionship, instruction and guidance of their injured father, Michael. The trial court dismissed for failure to state a cause of action, but the district court reversed and certified direct conflict to this Court.

The issue we are asked to decide is whether Florida should recognize a cause of action for loss of parental consortium resulting from injuries negligently caused by a third party to a parent where death does not occur. ^* The district court and the parties recognize that Florida has not heretofore recognized this cause of action and that a majority of other jurisdictions which have addressed the issue have also rejected the action. See Zorzos and holding and citations in Clark v. Suncoast Hospital, Inc., 338 So.2d 1117 (Fla. 2d DCA 1976). See also Fayden v. Guerrero, 420 So.2d 656 (Fla. 3d DCA 1982), review denied, 430 So.2d 450 (Fla.1983), and Ramirez v. Commercial Union Insurance Co., 369 So.2d 360 (Fla. 3d DCA 1979), wherein the third district court of appeal adopted the Suncoast Hospital position.

The conflicting views of the Second and Fifth District Courts of Appeal are fully set forth in Suncoast Hospital and Zorzos, respectively. It is true, as the Fifth District Court held in Zorzos, that we are not precluded from recognizing this cause of action simply because the legislature has not acted to create such a right. Nor do we read Suncoast Hospital as being grounded on the court's inability to do so. Instead, we read Suncoast Hospital as being grounded on the need to properly circumscribe the cause of action so as to guard against the numerous considerations weighing against recognizing such actions. We agree with Suncoast Hospital that if the action is to be created, it is wiser to leave it to the legislative branch with its greater ability to study and circumscribe the cause. In addition, we are influenced by the fact that the legislature has recognized a child's loss of parental consortium in a wrongful death action but has not created a companion action for such loss when the parent is injured but not killed. Although this omission may be only an oversight, it strongly suggests that the legislature has deliberately chosen not to create such cause of action.

We approve Suncoast Hospital, disapprove and quash the decision here, and remand for further proceedings consistent with this opinion.

It is so ordered.

BOYD, C.J., and OVERTON, ALDERMAN and McDONALD, JJ., concur.

EHRLICH, J., dissents with opinion with which ADKINS, J., concurs.

EHRLICH, Justice, dissenting.

I would approve the decision of the Fifth District Court of Appeal.

The majority says that they are "influenced by the fact that the legislature has recognized a child's loss of parental consortium in a wrongful death action but has not created a companion action for such loss when the parent is injured but not killed." I am also influenced by what the legislature has done in this regard, but am unmoved by what the legislature did not do, and in my opinion, this is the proper and appropriate analysis.

The wrongful death statute, alluded to in the Court's opinion, was enacted in 1972. Its predecessor statute which had been in effect for 89 years ¹ limited the right of action to specific family members--to the widow or husband, as the case may be, and where there is neither, then to the surviving child or children, and where there be none of the foregoing, the action could be maintained by any person dependent on such person killed for support, etc. In short, a minor had no cause of action for the death of a parent if there were a surviving parent.

This statutory scheme had many shortcomings which oft times caused unjust results and brought about many hardships. The general overhauling of the wrongful death statute in 1972 was the result of many years of in-fighting between forces with opposing points of view. The defense bar was generally satisfied with the status quo. The plaintiff's bar wanted to broaden the list of those who could recover for the death of a family member and to extend the elements of damage for each person entitled to recover. Although not the proper subject of...