Florida Supreme Court Grants Review of Common Law Marriage-Before-Injury Rule on Loss of Consortium Recovery | Husch Blackwell LLP

The Florida Fourth Circuit Court of Appeals recently ruled that a surviving spouse must be married to the deceased at the time of the injury — not the time of death — to compensate for the loss of a syndicate under the Florida Wrongful Death Act. In this holding, the Fourth District, in Ripple vs. CBS Corp., 337 So. 3d 45, 48 (Fla. Dist. Ct. App. 2022), review grantedNo. SC22-597, 2022 WL 3226332 (Fla. 9 Aug. 2022), formulated its opinion alongside the Fifth Circuit’s opinion Domino’s Pizza, LLC Vs, 248 So. 3d 212, 217 (Fla. Dist. Ct. App. 2018) which attest to a conflict between the two decisions. As a matter of first impression, the Fourth Circuit also ruled that if a spouse was barred from compensation because he married the decedent after the injury, the decedent’s adult children could receive syndicated-type damages.


Richard Counter was diagnosed with mesothelioma approximately sixty years after being exposed to asbestos. Shortly after his diagnosis, he married his longtime girlfriend and subsequently filed common law negligence and strict liability claims against several defendants. Counter died of mesothelioma months after filing. His estate amended his personal injury suit to a wrongful death suit to seek redress on behalf of his newlywed widow and adult children.

In Florida, wrongful death claims are governed by the Florida Wrongful Death Act. Fla.Stat. §§ 768.16 – 768.26. The law defines survivors simply as “spouse, children of the deceased” and some others. Fla.Ann. Statistics § 768.18. Compensation is available to each survivor for “lost support and services from the date of the deceased’s injury until death”; but indemnities for loss of “companionship and protection and for emotional pain and suffering from the date of injury” are only available to a surviving spouse, while similar indemnities are available for the non-minor children of the deceased only “if there is no surviving spouse gives….” Fla.Ann. Statistics § 768.21.

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Fourth Circuit Court of Appeals Decision

The Fourth Circuit upheld a lower court decision granting summary judgment against the deceased’s surviving spouse, who was barred from recovery by his decision Kelly v. Georgia-Pac., LLC, 211 So. 3d 340 (Fla. Dist. Ct. App. 2017). The testator a Kelly was diagnosed with mesothelioma four decades after his asbestos exposure, but married just a few years after his asbestos exposure. That Kelly The court framed the question as to whether the Florida Wrongful Death Act overrode the common law that barred compensation for loss of consortium unless the plaintiff was married to his or her spouse at the time of the violation, and upheld an injunction, with which the plaintiff’s claim for the loss of the consortium was dismissed.

in the rippleThe Fourth Circuit explained its position in Kelly. It found that the statute contained the pre-common-law rule of marriage because the statute did not expressly and unequivocally amend the common law or was not “so contrary to the common law that the two cannot coexist”. To the Fourth Circuit, the common law rule limited only the circumstances for recovery, and the phrase “from the date of injury” clearly indicated the legislature’s expectation of an existing marriage before the injury. Death, in the court’s view, was not a distinction permitting a restoration under law that was precluded by common law.

That ripple The court rejected the Fifth Circuit’s dominoes Opinion. in the dominoes, the deceased was injured in a car accident, became instantly paraplegic, filed a lawsuit, married, and died—all within about a year of his injury. There, the Fifth Circuit relied on the common meaning of survivors rather than the pre-common-law violation rule of marriage. For this, a survivor was designated at the time of death, and the language “from the date of injury” did not determine who could be recovered, but what could be recovered – loss of consortium damage measured from the date of injury.

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On another issue, the Fourth Circuit ruled that forfeiture prevents a party from asserting a particular argument at one stage of the proceeding only to present a conflicting argument at another stage. The court rejected the notion that a spouse could be disqualified from being a surviving spouse under section 768.21(2) merely to be classified as a surviving spouse under section 768.21(3) allowing a syndicated recovery for adult children only in In the absence of a surviving spouse.


The Florida Supreme Court is poised to rule the matter. It will no doubt try to avoid political considerations when deciding how to interpret laws. If the statute does not directly conflict with common law in providing syndicated-like indemnities to surviving spouses “from the date of injury,” then it is found that the legislation lacks a clearly stated intent to override the rule of pre-infringement marriage to put. When the language is ambiguous, the Florida Supreme Court will look to legislative history and other tools of law construction to decide whether the meaning of the statute can coexist with the common law.

There are strong arguments on both sides of the problem. The simple and ordinary meaning of surviving spouse seems to be well accepted and language providing recovery from a date simply suggests from that point forward. Furthermore, the wording of the statute can simply state that consortial-type damages begin on the date of injury and not on the date of death, the only other point in time mentioned in the statute. Alternatively, it may be stated that the Florida Wrongful Death Act accounts for latent violations not addressed by the common law, which largely predates the American Toxic Tort Law and its associated latent violations.

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Attorneys in the United States should take note of the upcoming Florida Supreme Court ruling on the rule of marriage against common law violations, particularly in states with similar wrongful death laws. Furthermore, ripple serves as a reminder for carefully crafted arguments that are consistent at different stages of litigation.

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