When a spouse is injured or killed as a result of negligence, spouses and in some cases other dependents are granted the opportunity to seek compensation for loss of services from their loved one in the form of a claim for loss of consortium.
Beyond the marital sexual relationship, what is argued is the loss of companionship, help with household responsibilities and sometimes loss of income by the spouse, due to having to care for the injured party.
Our Hollywood personal injury lawyers know that historically, Florida juries haven’t awarded huge sums for loss of consortium. However, there have been exceptions in cases where an argument is fully-developed and presented at trial that the injury resulted in impact to a previously-thriving marriage has been devastating and irreversible.
Typically, loss of consortium claims are brought in concert with an underlying personal injury or wrongful death action. What was at issue in the case of Randall v. Walt Disney World Corp. was whether the loss of consortium claim could survive on its own without having to be refiled as a wrongful death action when the person in the underlying personal injury case dies before the case reaches trial.
The Fifth District Court of Appeal holds that it can, despite a conflicting stance by the Third District Court of Appeal.
In this case, the underlying action stemmed from a 2006 injury suffered by the decedent while riding a roller coaster at a Florida theme park. The plaintiffs alleged the negligence of the park operators led him to suffer head and neck injuries. A lawsuit was filed in 2008, with the wife joining as a plaintiff, adding her own personal claim for loss of consortium.
In 2010, while that action was pending, the husband died. The wife contends it was a result of his injuries sustained at the park, though the defendant disputes those allegations.
The wife filed a suggestion of death, but she failed to substitute herself as the personal representative of the personal injury case within 90 days, as Florida rules of civil procedure require. The trial court subsequently dismissed both the personal injury action and the loss of consortium claim. The wife filed a motion for re-hearing solely on the loss of consortium issue, but the court denied this. She appealed.
Citing the previous case of Taylor v. Orlando Clinic, the appellate court found that a spouse’s cause of action for loss of consortium, while derived from the personal injury suffered by the husband, should proceed in spite of the death of the husband, even when the personal injury action brought by him is dismissed.
A ruling by the Third District Court of Appeal runs contrary to this. When a question regarding these two cases was certified to the Florida Supreme Court, that court disproved Taylor, but only to the extent that a personal injury action could be amended to a wrongful death lawsuit without having to be refiled. It never directly answered the question of whether a loss of consortium claim could survive the dismissal of a personal injury action following the death of the plaintiff.
Therefore, the Fifth District determined, the Taylor ruling still held precedent in this regard. Accordingly, the dismissal of the personal injury action here was upheld, but the dismissal of the loss of consortium claim was reversed.
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Randall v. Walt Disney World Corp., June 20, 2014, Florida’s Fifth District Court of Appeal
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