Marrying Into A Wrongful Death ClaimWrongful Death
In the case of Jennifer Ripple v. CBS Corporation, Case Number 4D20-1939 (Fla. 4th DCA March 30, 2022), Florida’s Fourth DCA held that a plaintiff who married the decedent after exposure to asbestos was barred from damages as the surviving spouse and certified a conflict with Dominos v. Wiederhold.
Facts of the Case
The decedent was alive when he filed his original complaint in 2015 for asbestos exposure from the 1950s through the 1990s in the military. Shortly after filing the lawsuit, the decedent married the woman with whom he had lived for several decades. Upon death, the wife sought to amend the lawsuit to include a claim for herself as the decedent’s surviving spouse.
The defense argued that the wife was not married at the time of the injury (1950s through 1990s) and should be barred from recovery using the following argument:
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.
However, in 2018, Florida’s Fifth DCA decided Dominos v. Wiederhold, 248 So. 3dd 212 (Fla. 5th DCA 2018). In Wiederhold, the decedent was seriously injured in a car accident. Within one month of the accident, the decedent filed suit and then married a few months after filing suit. The decedent passed away approximately one year after the injury. The Wiederhold court concluded that the term “surviving spouse” is determined on the date of death rather than the date of injury. The plaintiff in Wiederhold was also sympathetic in the sense that there was a long pre-existing nonmarital relationship prior to the injury. This case permits marrying into a wrongful death claim at least to some degree, although I suspect that results may very well be different in the event where a substantial pre-injury relationship was absent.
The Fourth DCA certified a conflict with Wiederhold to be resolved by the Florida Supreme Court.
In any event, this case ends with the result that the wife was barred from being a wrongful death survivor due to the late marriage, however, the decedent’s adult children were not barred as survivors due to the very same fact of a late marriage occurring after the injury. However, this determination was not without its fireworks.
The defense argued on one hand that the wife should be barred from a claim because she was not married at the time of her husband’s injury but, on the other hand, also argued that the decedent’s adult children were also barred from pain and suffering damages due to the fact that their father was married at the time of his death. This is a typical “heads they win, tails you lose” argument.
Fortunately, the Fourth DCA saw this for what it is and allowed the adult children to make their survivor claims under the wrongful death statute.
Be Aware of Where Your Case Is
The takeaways from this case are 1) you may or may not be able to marry into a wrongful death claim as a survivor depending on where your case is located (pending resolution by the FL Supreme Court) and 2) the parties should not expect to have it both ways. In this case, it was going to be either the spouse or the adult children who had recognized claims. The argument that neither should have claims was just disingenuous.
Lakeland Wrongful Death Attorney
If you or someone you know needs help following the death of a loved one, please know that Russo Law is available to help. I study these cases as they come out and write on them for the benefit of the public but I also use the knowledge gained to help my clients. Consultations are free. Contact a Lakeland wrongful death attorney today to talk about your case.