A recent ruling by the Fifth Florida Appellate Court on Friday allows surviving spouses to claim loss of consortium separately from others claims after the spouse dies.
The surviving spouse Margaret Randall filed the case, Randall v. Walt Disney World Co., in 2006 after her husband Barry Randall allegedly suffered injuries to his head and neck from riding a roller coaster. Besides personal injuries, Ms. Randall also claims loss of consortium. Loss of consortium is the inability of one spouse to have normal martial relations. Judges will sometimes award the surviving spouse damages for his or her loss of intimacy with their spouse.
The issue here was could Mrs. Randall claim loss of consortium after her husband died. Mr. Randall died shortly after the lawsuit was filed, which Mrs. Randall claims was a result from the rollercoaster injury. In Florida, the rules of civil procedure requires that when a party in a lawsuit dies a personal representative of the deceased's estate must be substituted within 90 days. This is a rather harsh rule that must be performed on time or else the deceased party will be dismissed from the lawsuit.
In this case, Mrs. Randall did not make a timely substitution and thus the court dismissed her spouse's personal injury claim. The trial court dismissed Mrs. Randall's loss of consortium claim, reasoning the claim was derivative of the same personal injury claim it had just dismissed. However, the appellate court reversed and allowed the loss of consortium claim to survive.
This court had previously held in another case that a wife's cause of action for loss of consortium, while derived from the personal injury to the husband, survives the death of her husband. When making this decision, the court looked to Gates v. Foley. The court in that case held that, "deprivation to the wife of the husband's companionship, affection and sexual relation (or consortium...) constitutes a real injury to the marital relationship and one which should be compensable at law due to the negligence of another."
In Ryter, the first district court in Florida held a wife's loss of consortium claim is actionable regardless of the status of the husband's claims. The court reasoned a, "wife owns the cause of action [and that] it is her property right in her own name." Finally, the court in Orange Cnty. V. Piper, held loss of consortium to be a "separate cause of action belonging to the spouse of the injured married partner, and... it is a direct injury to the spouse who has lost the consortium."
The appellate court of the third district reasoned a loss of consortium claim should not continue past death because the Legislature made recovery for a surviving spouse a part of the Wrongful Death Act. However, the Fifth District found this hold to be too limiting to the surviving spouse's rights because the act only allows recovery in specific situations. This court felt the Legislature did not intend to limit a spouse's right to claim loss of consortium, and thus reaffirmed its view that a loss of consortium claim survives a dead spouse.
Another appellate court disagreed with this conclusion, and thus the Florida Supreme Court may soon decide because of the circuit split. For more information regarding the surviving rights of a married spouse in Florida, contact Jacksonville attorney David Goldman at 904-685-1200.