In the case of Dominos Pizza, LLC v. Wiederhold, 5D16-2794 (Fla. 5th DCA 2018), an injured person got married after becoming injured but before his death. After his death, his surviving spouse sued the driver (and Dominos Pizza for vicarious liability) for causing the accident and she claimed damages as a wrongful death survivor.
Injured Person Was Not Married On The Date Of The Initial Injury
Dominos Pizza appealed arguing that a multi-million dollar jury verdict was improper because the surviving spouse was not married to the injured person on the date of the injury (and because of improper closing arguments made by counsel).
The Fifth DCA upheld the trial judge’s ruling that a surviving spouse need only be married at the time of death and does not have to be married at the time of the injury in order to claim damages under Florida’s wrongful death statute.
Facts Of The Case
In 2011, Wiederhold sustained serious injuries resulting in quadriplegia following a car accident where a pizza delivery driver employed by a Dominos Pizza franchise pulled out directly in front of Wiederhold. At the time of the accident, Wiederhold was not married to his girlfriend.
Wiederhold married his girlfriend before passing away in 2012. Her claims as a surviving spouse were challenged by Dominos Pizza.
The jury found that “Mrs. Wiederhold’s damages for ‘loss of her husband’s companionship and protection and for her mental pain and suffering as a result of [Mr. Wiederhold’s] injury and death’ totaled $10 million.”
An Existing Marriage At The Time Of Injury Is Normally Required For Consortium Claims In Florida
Generally speaking, most lawyers understand that a loss of marital consortium requires that the injured person be married at the time of their injury in order to have a claim. However, this case is unique in that Mr. Wiederhold still had mental capacity after his injury.
The public policy consideration involved with this issue is that an person with a potential injury claim might get married just to keep their claim viable after their death (particularly if they had no spouse or children at the time of their injury).
This is why it is shocking that the Fifth DCA said that:
…while the statute defines who survivors are, it does not answer the question presented in this case of when their status as a survivor is determined. Although the Act does not specify whether a “surviving spouse” must be married at the time of injury or the time of death, that alone does not render the term unclear or ambiguous if the common and ordinary meaning leads to clear and unambiguous results.
The Florida Supreme Court may write an opinion regarding this subject upon further appeal. The Fifth DCA quoted Black’s Law Dictionary as definition “survivor” as “[o]ne who outlives another.” Further, The Fifth DCA stated that “[b]y extension, the common and ordinary meaning of a “surviving spouse” is a married person who outlives his or her husband or wife.”
Consequently, applying the plain meaning of these terms, the Fifth DCA concluded that the term “surviving spouse” is determined on the date of the other spouse’s death because one cannot be a survivor before that date.
While true, a person injured in an accident who does not die before the expiration of limitations (but got married after their injury) would not have a spouse with a collectible consortium claim.
In other words, a person who sustains an injury, then gets married, but dies the day after the statute of limitation (4 years for an injury in Florida) would not have a surviving spouse with a claim. Meanwhile, a person with the same situation who dies one day sooner has a spouse with a viable legal claim as a surviving spouse under Florida’s wrongful death statute.
This case is probably unique in that Wiederhold was dating his girlfriend before his injury and his girlfriend nobly stood by his side until the end. After all, marriage is really just an instrument of law and has nothing to do with whether two people have a functional and loving relationship. This must have been what the jury was rewarding with their verdict.
It is also not clear whether the reasoning of this case extends beyond personal injury cases and extends into other areas of law such as medical malpractice.
Case Also Reversed For Improper Argument Of Counsel
With all of the above being said about whether two people have to married at the time of an injury in order to have a claim for a loss of marital consortium, it seems the primary reason that this case was reversed was the improper arguments by the plaintiff’s attorney. The closing statement made by the plaintiff’s attorney referenced a “greedy charade” and expressed personal opinions of the lawyer.
The Fifth DCA clearly did not approve of the conduct of the attorney at trial despite the verdict. However, the arguments raised seem to follow the same theme of other pizza delivery car accident cases.
Getting Help With Your Case
If you have been injured in a car accident as a result of another person’s negligence, you will often be in for the fight of your life with the insurance company for the other person or the company that they work for. You will need the help of an attorney to help you play by the rules even if the other does pushes the boundaries of what is acceptable. Further, it is even harder when the injured person passes away and the surviving family has to bring a wrongful death claim.
Contact a Lakeland personal injury and wrongful death attorney for a free consultation today.