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Court of Appeal of Florida, Fourth District
February 22, 2017, Decided
[*342] Levine, J.
The question presented for our review is whether the Florida Wrongful Death Act supersedes the common law requirement that a spouse must be married to the decedent before the date of the decedent's injury to recover damages for loss of consortium. Stated another way, did the legislative enactment, giving the estate's representatives and survivors a remedy not found in the common law, "explicitly," "clearly," and "unequivocally" abrogate the common law requirements to recover [**2] consortium damages when those damages are awarded under the Wrongful Death Act. ] Because there can be no change in the common law unless the statute is "explicit and clear in that regard" and the Wrongful Death Act does not "explicitly," "clearly," and "unequivocally" abrogate the common law rule, we hold that a spouse who was not married to a decedent at the time of the decedent's injury may not recover consortium damages as part of a wrongful death suit. Thus, we find that the trial court did not err in entering an order of dismissal, and subsequently entering a final judgment. We therefore affirm.
John Kelly and his wife, Janis Kelly, filed an action against appellees for negligence, strict liability, and for Janis Kelly's loss of consortium. During the course of the litigation, the husband died, and the wife amended the complaint, dropping her loss of consortium claim and adding a wrongful death claim, which included a demand for loss of consortium damages.
The decedent worked in construction and was exposed to asbestos during the years of 1973 to 1974. The decedent and appellant did not marry until 1976. In 2014, the decedent was diagnosed with mesothelioma and alleged that his exposure [**3] to asbestos caused the disease. The decedent died from mesothelioma in 2015.
Appellees moved to dismiss the wife's wrongful death claim, arguing that a spouse must be married to the injured party at the time of the injury for the spouse to bring a claim for loss of consortium and that the wrongful death claim sought damages for loss of consortium. Appellees argued it was undisputed that appellant was not married to the decedent when the decedent was injured. The trial court granted the motion to dismiss and dismissed that portion of appellant's complaint seeking consortium damages under the Wrongful Death Act. Appellant then voluntarily dismissed the remaining claims for negligence and strict liability. The trial court entered a final judgment, and this appeal ensued.
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211 So. 3d 340 *; 2017 Fla. App. LEXIS 2413 **; 42 Fla. L. Weekly D 453; 2017 WL 697746
JANIS KELLY, as Personal Representative of the Estate of John K. Kelly, Appellant, v. GEORGIA-PACIFIC, LLC, UNION CARBIDE CORP., PREMIX-MARBLETITE MANUFACTURING CO., and IMPERIAL INDUSTRIES, INC., Appellees.
Subsequent History: Review denied by Kelly v. Georgia-Pacific, LLC, 2017 Fla. LEXIS 2097 (Fla., Oct. 23, 2017)
Prior History: [**1] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carol Lisa Phillips, Judge; L.T. Case No. 14-018038 (27).
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Governments, Courts, Judicial Precedent, Torts, Types of Damages, Compensatory Damages, Loss of Consortium, Wrongful Death & Survival Actions, Potential Plaintiffs, Legislation, Statutory Remedies & Rights, Interpretation, Types of Losses, Loss of Consortium, Spouses, Enactment, State & Territorial Governments, Legislatures