“In all, statutes must be construed as to avoid an unreasonable or absurd result.”
How later courts described this case
- “In all, statutes must be construed as to avoid an unreasonable or absurd result.”
- standard of appellate review 17 applicable to grant of summary judgment is de novo
- “[J]udicial estoppel[] generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.”
- “We are not at liberty to add words to statutes that were not placed there by the Legislature.”
Written by the judges who cited it.
The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JENNIFER RIPPLE, as personal representative of the
ESTATE OF RICHARD D. COUNTER, deceased,
Appellant,
v.
CBS CORPORATION, GENERAL ELECTRIC COMPANY,
THE GOODYEAR TIRE & RUBBER COMPANY,
JOHN CRANE INC., and WARREN PUMPS, LLC,
Appellees.
No. 4D20-1939
[March 30, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No. CACE15-012497.
Mathew D. Gutierrez and Juan P. Bauta, II, of The Ferraro Law Firm,
P.A., Miami, for appellant.
Matthew J. Conigliaro of Carlton Fields, P.A., Tampa, for appellees.
PER CURIAM.
In this case involving Florida’s Wrongful Death Act, the decedent’s
estate appeals from the circuit court’s final judgment in the defendants’
favor. The final judgment was based on the circuit court’s orders granting
the defendants’: (1) motion for judgment on the pleadings as to the
decedent’s wife’s damages claim; and (2) motion for summary judgment as
to the decedent’s adult children’s alternative damages claim.
On appeal, the estate raises a primary argument and an alternative
argument. The estate’s primary argument is that this court, in Kelly v.
Georgia-Pacific, LLC, 211 So. 3d 340 (Fla. 4th DCA 2017), erred in holding
that a spouse who had married a person after the person was injured, and
the injured person later dies, is barred from recovering “for loss of the
decedent’s companionship and protection and for mental pain and
suffering” under section 768.21(2) of the Wrongful Death Act.
The estate’s alternative argument is that, if a spouse who had married
the decedent after the decedent’s injury is barred from recovering damages
under section 768.21(2) of the Wrongful Death Act (per Kelly), then the
decedent’s surviving adult children may recover “for lost parental
companionship, instruction, and guidance and for mental pain and
suffering” under section 768.21(3) of the Wrongful Death Act.
On the estate’s primary argument, we affirm based on Kelly, though we
certify conflict between Kelly and Domino’s Pizza, LLC v. Wiederhold, 248
So. 3d 212 (Fla. 5th DCA 2018). In Domino’s, the Fifth District expressly
disagreed with Kelly and instead held that a spouse who had married a
person after the person was injured, and the person later dies, is not
barred from recovering “for loss of the decedent’s companionship and
protection and for mental pain and suffering” under section 768.21(2) of
the Wrongful Death Act.
However, on the estate’s alternative argument, which comes to us as
an issue of first impression, we agree with the estate that, if a spouse who
had married the decedent after the decedent’s injury is barred from
recovering damages under section 768.21(2) of the Wrongful Death Act
(per Kelly), then the decedent’s surviving adult children may recover “for
lost parental companionship, instruction, and guidance and for mental
pain and suffering damages” under section 768.21(3) of the Wrongful
Death Act.
We present this opinion in five parts:
I. The decedent’s pre-death personal injury complaint;
II. The estate’s wrongful death amended complaint;
III. The defendants’ motion for judgment on the pleadings;
IV. The defendants’ motion for summary judgment; and
V. Our review.
I. The Decedent’s Pre-Death Personal Injury Complaint
In 2015, the decedent filed his original personal injury complaint, the
allegations of which we are required to accept as true. See Miller v. Finizio
& Finizio, P.A., 226 So. 3d 979, 982 (Fla. 4th DCA 2017) (“Where a
defendant moves for judgment on the pleadings, a court must take as true
all of the material allegations in the plaintiff’s complaint and must
disregard all of the denials in the defendant’s answer.”).
According to the complaint, from the 1950s through the 1990s, the
decedent was exposed to asbestos, which is a toxic substance that may
2
cause mesothelioma. The decedent allegedly inhaled asbestos while at
sea during military service, while working at various industrial plants, and
at his own home.
On May 22, 2015, the decedent was diagnosed with mesothelioma.
Less than two months later, on July 4, 2015, the decedent married the
woman with whom he had lived for decades (“the wife”). On July 23, 2015,
the decedent filed his original personal injury complaint. His complaint
alleged common law negligence and strict liability actions against multiple
defendants, and sought damages for his injuries.
Less than four months later, on November 1, 2015, the decedent died
from mesothelioma. He was survived by the wife and two adult children
from a prior marriage.
II. The Estate’s Wrongful Death Amended Complaint
The wife—in her capacity as the decedent’s estate’s personal
representative—immediately and successfully sought leave to amend the
complaint. The amended complaint replaced the decedent’s common law
personal injury claims with the estate’s claim to recover damages for the
wife under section 768.21(2) of the Wrongful Death Act or, in the
alternative, damages for the decedent’s adult children under section
768.21(3) of the Wrongful Death Act.
The Wrongful Death Act authorizes a decedent’s personal
representative to “recover for the benefit of the decedent’s survivors … all
damages, as specified in [the] act, caused by the injury resulting in
death.” § 768.20, Fla. Stat. (2015) (emphases added).
Pertinent here, the Wrongful Death Act defines “survivors” as “the
decedent’s spouse, [and] children.” § 768.18(1), Fla. Stat. (2015). The
Wrongful Death Act’s “damages” provision pertinently provides:
(1) Each survivor may recover the value of lost support and
services from the date of the decedent’s injury to her or his
death, with interest, and future loss of support and services
from the date of death and reduced to present value. In
evaluating loss of support and services, the survivor’s
relationship to the decedent, the amount of the decedent’s
probable net income available for distribution to the particular
survivor, and the replacement value of the decedent’s services
to the survivor may be considered. In computing the duration
of future losses, the joint life expectancies of the survivor and
3
the decedent and the period of minority, in the case of healthy
minor children, may be considered.
(2) The surviving spouse may also recover for loss of the
decedent’s companionship and protection and for mental pain
and suffering from the date of injury.
(3) Minor children of the decedent, and all children of the
decedent if there is no surviving spouse, may also recover
for lost parental companionship, instruction, and guidance
and for mental pain and suffering from the date of injury. …
§ 768.21(1)-(3), Fla. Stat. (2015) (emphases added).
The defendants filed their respective answers denying the amended
complaint’s material allegations, including the wife’s damages claim and
the adult children’s alternative damages claim.
III. The Defendants’ Motion for Judgment on the Pleadings
The defendants then filed a motion for judgment on the pleadings as to
both the wife’s damages claim and the adult children’s alternative damages
claim.
As to the wife’s damages claim, the defendants argued she was barred
from recovering “for loss of the decedent’s companionship and protection
and for mental pain and suffering” under section 768.21(2) of the Wrongful
Death Act because she “and [the decedent] were not married at the time of
[the decedent’s] alleged exposure to asbestos,” and thus she did not qualify
as the decedent’s “surviving spouse” as that term is used in section
768.21(2). More specifically, the defendants argued:
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
4
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. Id.
As to the adult children’s alternative damages claim, the defendants
argued the adult children were barred from recovering “for lost parental
companionship, instruction, and guidance and for mental pain and
suffering” under section 768.21(3) of the Wrongful Death Act because the
wife qualified as a “surviving spouse” as that term is used in section
768.21(3).
The estate filed a response arguing this court, in Kelly, erred in holding
that a spouse, who had married the decedent after the decedent’s injury,
is barred from recovering “for loss of the decedent’s companionship and
protection and for mental pain and suffering” under section 768.21(2) of
the Wrongful Death Act. Instead, the estate argued, the Fifth District, in
Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018),
properly held that a spouse who had married the decedent after the
decedent’s injury is not barred from recovering “for loss of the decedent’s
companionship and protection and for mental pain and suffering” under
section 768.21(2) of the Wrongful Death Act. More specifically, the estate
argued:
[I]n Domino’s …, the Fifth District adopted the “common
and ordinary” meaning of the term “surviving spouse,” which,
as the [Fifth District] noted, is “a married person who outlives
his or her husband or wife,” irrespective of whether the
marriage commenced before or after the decedent-spouse’s
exposure to asbestos. [248 So. 3d at 219]. Under [Domino’s],
because [the wife there] outlived her husband, she [was]
eligible to recover [under the Act] as [the decedent’s]
[“]surviving spouse.[”]
Accordingly, [the estate] respectfully requests that [the]
[circuit] [c]ourt [here] deny [the defendants’] [m]otion [for
judgment on the pleadings] based on the [Fifth District’s]
ruling in [Domino’s].
In the alternative, if the [circuit] [c]ourt [here] declines to
follow Domino’s, and proceeds to analyze the [defendants’]
[m]otion [for judgment on the pleadings] under Kelly, the
[m]otion should be granted as to [the wife], but denied as to
[the decedent’s] adult children, for the reasons that follow.
5
[The defendants’] [m]otion [for judgment on the pleadings]
is an irreconcilable contradiction. [The defendants] first
assert[] that [the wife] is not eligible under [section 768.21(2)
of] the Act to recover [damages] as [the decedent’s] “surviving
spouse,” because she married [the decedent] after he was
exposed to asbestos. As explained above, under Kelly, [the
defendants] [are], in fact, correct on this point. However, in
the same breath, [the defendants] then contend[] that [the
wife] is [the decedent’s] “surviving spouse[]” [under section
768.21(3) of the Act,] and that her status as such precludes
[the decedent’s] adult children from recovering [damages]
under [section 768.21(3)] of the Act. [The defendants’] two
positions cannot be harmonized. …
(internal footnote omitted).
After a hearing, the circuit court entered an order granting in part and
denying in part the defendants’ motion for judgment on the pleadings. In
the order, the circuit court, citing Kelly, granted the motion as it pertained
to the wife’s damages claim under section 768.21(2) of the Act “as she was
not married to decedent at the time of the exposure.” However, the circuit
court, without detail, denied the motion as to the adult children’s damages
claim under section 768.21(3) of the Act.
IV. The Defendants’ Motion for Summary Judgment
Later, the defendants filed a motion for summary judgment as to the
adult children’s damages claim under section 768.21(3) of the Act. The
defendants argued:
Under Florida’s Wrongful Death Act, adult children may
only recover for “lost parental companionship, instruction,
and guidance and for mental pain and suffering from the date
of injury” “if there is no surviving spouse.” Fla. Stat. §
768.21(3) ….
It is undisputed that [the wife] is the [“]surviving spouse[”]
of the [d]ecedent. …
The estate filed a response, asserting:
[T]he … [d]efendants [previously] moved for … judgment
[on the pleadings] as to [the wife’s] loss of consortium claim
6
pursuant to the [Fourth] DCA’s poorly reasoned opinion in
Kelly …. [The] [circuit] [c]ourt granted the [m]otion ….
The poor reasoning found in Kelly is now being expanded
by the instant [m]otion. As the [Fifth District] in Domino’s …
correctly observed, … Kelly … runs “contrary to established
precedent”, “contrary to the legislative intent”, and is
“unconvincing.” [248 So. 3d] at 221. In fact, what the instant
[m]otion [for summary judgment] attempts is exactly what the
Wrongful Death Act intended to remedy. The [Fifth District]
stated:
It also would be contrary to the legislative intent
expressed in section 768.17, Florida Statutes (2012),
which states, “It is the public policy of the state to shift
the losses resulting when wrongful death occurs from
the survivors of the decedent to the wrongdoer.
Sections 768.16-768.26 are remedial and shall be
liberally construed.” See also Wagner, Vaughan,
McLaughlin & Brennan, P.A. v. Kennedy Law Grp., 64
So. 3d 1187, 1191 (Fla. 2011) (noting that [the] Act is
“designed to substitute the financial resources of the
wrongdoer for the resources of the decedent, in an
attempt to meet the financial obligations of the
decedent, ... and to prevent a tortfeasor from evading
liability for his or her misconduct when such
misconduct results in death”).
[Domino’s, 248 So. 3d] at 220.
After a hearing, the circuit court entered an order granting the
defendants’ summary judgment motion. In the order, the circuit court
reasoned:
[S]ection 768.21(3), provides that damages are awardable
under the Wrongful Death statute for “all children of the
decedent if there is no [‘]surviving spouse[’] ....” As there is a
surviving spouse here, the defendant contends that the adult
children are barred from recovery. While the decedent has a
surviving spouse, this [c]ourt previously ruled that the spouse
cannot recover under the Wrongful Death Act based upon the
Fourth District’s decision in Kelly …. As a result, the [estate]
contends that application of the statute would completely cut
off recovery under the Wrongful Death statute for the
7
decedent’s family, other than for funeral expenses. Such a
result, the [estate] argues, would “turn back the legal clock to
a time when a tortfeasor could delay justice until the injured
person died and thereby avoid all liability for their
wrongdoing.” Notwithstanding the significant practical effect
of the requested ruling, this [circuit] court is bound by Kelly
and the plain language of the statute. Therefore, as there is a
surviving spouse, albeit a spouse who is herself barred from
recovery pursuant to Kelly, an adult child is barred from
recovery pursuant to the plain language of section 768.21(3)
of the Wrongful Death Act.
After the circuit court’s summary judgment order, the estate still had
several economic damages claims pending under the Wrongful Death Act,
including lost support and services damages, as well as damages for
medical expenses, funeral expenses, and net accumulations. However, the
estate declined to pursue those damages claims and instead filed a notice
voluntarily dismissing without prejudice “all claims remaining in this
action.”
The estate then asked the circuit court to enter final judgment in the
defendants’ favor so that the estate could appeal the order granting the
defendants’ motion for judgment on the pleadings and the defendants’
summary judgment motion. The circuit court did so. This appeal followed.
V. Our Review
A. The Wife’s Claim
On the circuit court’s order granting the defendants’ motion for
judgment on the pleadings as to the wife’s damages claim, our review is de
novo. See Mercantil Bank, N.A. v. Pazmino, 262 So. 3d 826, 828 (Fla. 4th
DCA 2019) (“We review a judgment on the pleadings de novo.”); Headley v.
City of Miami, 215 So. 3d 1, 5 (Fla. 2017) (“Issues of statutory
interpretation are subject to de novo review.”).
Applying de novo review, we affirm the judgment on the pleadings
pursuant to Kelly v. Georgia-Pacific, LLC, 211 So. 3d 340 (Fla. 4th DCA
2017). Kelly presented the same legal issue, though under slightly
different facts involving a marriage which long pre-dated the injury’s
diagnosis.
8
We shall discuss Kelly in greater detail, before contrasting it with the
Fifth District’s later-issued conflicting decision in Domino’s Pizza, LLC v.
Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018).
1. Kelly v. Georgia-Pacific, LLC
In Kelly, the decedent was exposed to asbestos from 1973 to 1974. 211
So. 3d at 342. The decedent got married in 1976. Id. Nearly forty years
later, in 2014, the decedent was diagnosed with mesothelioma and sued
various defendants, alleging they were responsible for the asbestos which
caused the disease. Id. The decedent died from mesothelioma in 2015.
Id.
The decedent’s estate converted the action into a wrongful death claim.
Id. The claim sought the wife’s damages for loss of consortium under
section 768.21(2) of the Wrongful Death Act. Id. The defendants filed a
motion to dismiss, relying on common law to argue that a spouse must be
married to the injured person at the time of the injury for the spouse to
bring a loss of consortium claim, and no dispute existed that the wife was
not married to the decedent when he was injured. Id. The circuit court
entered an order granting the motion to dismiss. Id. The estate appealed.
Id.
We affirmed. We framed the issue on appeal as “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.” Id. “Stated another
way,” we addressed whether “the legislative enactment, giving the estate’s
representatives and survivors a remedy not found in the common law,
‘explicitly,’ ‘clearly,’ and ‘unequivocally’ abrogate[d] the common law
requirements to recover consortium damages when those damages are
awarded under the Wrongful Death Act.” Id. Concluding that the Act did
not abrogate the common law, we held:
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, …. 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.
Id.
9
In support of that holding, we explained the common law “marriage
before injury” rule and its application to the case:
[U]nder the common law of loss of consortium, the parties
must have been married to one another at the time of the
injury to recover damages for loss of consortium. Tremblay v.
Carter, 390 So. 2d 816, 817 (Fla. 2d DCA 1980). As the court
in Tremblay explained, the rationale for the common law rule
is that
[s]ince a cause of action for personal injury and the
derivative rights flowing therefrom ordinarily accrue
when the tort is committed, the courts concluded that
to permit an unmarried person to claim loss of
consortium upon … marriage to an injured spouse
would have the effect of allowing [the person] to marry
into the cause of action.
Id.
In the present case, the decedent’s injury occurred when
he was exposed to asbestos. See Am. Optical Corp. v. Spiewak,
73 So. 3d 120, 129 (Fla. 2011) (“Here, a foreign substance—
asbestos fibers—were inhaled and became embedded in the
lungs of the plaintiffs without their knowledge or consent.
This … constitutes an actual injury that has been inflicted
upon the bodies of the plaintiffs.”). Thus, because the
decedent was injured before [the wife] married him, for [the
wife] to prevail in her claim, we must find that the Wrongful
Death Act specifically supersedes the common law of loss of
consortium.
Id. at 344.
We then explained why the Wrongful Death Act did not specifically
supersede the common law of loss of consortium:
Whether the legislature intended for the Wrongful Death
Act to supersede the common law of loss of consortium
“depends upon the legislative intent as manifested in the
language of the statute.” Thornber v. City of Fort Walton
Beach, 568 So. 2d 914, 918 (Fla. 1990). “The presumption is
that no change in the common law is intended unless the
statute is explicit and clear in that regard.” Id. Thus, “[u]nless
10
a statute unequivocally states that it changes the common
law, or is so repugnant to the common law that the two cannot
coexist, the statute will not be held to have changed the
common law.” Id.
…
Applying the principles of Thornber to the present case
leads us to the conclusion that the statutory language of the
Wrongful Death Act does not, directly or indirectly, abrogate
or supersede the common law requirement that the spouse
must be married to the injured party at the time of the injury
to recover for loss of consortium. Here, the plain language of
the statute shows that the legislature clearly intended that the
Wrongful Death Act allow for a surviving spouse to recover
“consortium-type” damages. … The legislature is presumed
to know of the common law limitation for recovering loss of
consortium damages. Williams v. Jones, 326 So. 2d 425, 435
(Fla. 1975) (“[T]he Legislature is presumed to know the
existing law when it enacts a statute ....”). However, despite
the clear intention that the Wrongful Death Act allow for the
recovery of consortium damages after the decedent’s death,
nothing in the statute abrogates the common law marriage
before injury rule. Therefore, because the legislature did not
explicitly and clearly overrule the common law limitation on
loss of consortium when enacting the Wrongful Death Act, the
common law marriage before injury rule was incorporated into
the Act. …
Further, there appears to be no reason why the common
law requirement—that the injured spouse and the surviving
spouse be married prior to the date of injury—cannot coexist
with the Wrongful Death Act. Nothing in the Wrongful Death
Act is “so repugnant to the common law that the two cannot
coexist.” Thornber, 568 So. 2d at 918. The common law rule
merely limits the circumstances for when the surviving spouse
may recover “consortium-type” damages under the wrongful
death statute for the “decedent’s companionship and
protection and for mental pain and suffering from the date of
injury.” § 768.21(2), Fla. Stat. (2015).
Additionally, we note that the plain language of the
Wrongful Death Act indicates that the legislature did not
intend for a surviving spouse to recover consortium damages
11
if the surviving spouse was not married to the decedent prior
to the date of the decedent’s injury. The definition of
“survivor” in the statute is limited to familial relationships
only, and both subsections (1) and (2) of section 768.21 clearly
provide that damages are recoverable from the date of “injury.”
§§ 768.18(1), 768.21(1)–(2), Fla. Stat. (2015). Thus, the plain
language of the statute indicates that the legislature
anticipated that the surviving spouse would have been
married to the decedent prior to the date of injury.
…
Finally, it would make no sense to allow a spouse to recover
consortium damages under the Wrongful Death Act simply
because his or her spouse has died when that same spouse
would be prohibited from recovering the same damage under
a loss of consortium claim had his or her spouse survived. We
are required to interpret the Wrongful Death Act to avoid
absurd results such as this. Allstate Ins. Co. v. Rush, 777 So.
2d 1027, 1032 (Fla. 4th DCA 2000) (“In all, statutes must be
construed as to avoid an unreasonable or absurd result.”).
Id. at 344-46.
Based on the foregoing reasoning, we concluded:
[W]e affirm … and hold that the Florida Wrongful Death Act
does not clearly or explicitly abrogate or overturn the common
law requirement that the decedent and surviving spouse be
married prior to the date of injury to recover consortium
damages. Although there may be persuasive policy reasons
for superseding this common law rule, especially in the
present case where the injury is latent, such a change may
come only from the legislature by statutory enactment.
Id. at 347 (internal footnote omitted).
Our holding and reasoning in Kelly applies equally to the instant case.
2. Domino’s Pizza, LLC v. Wiederhold
In Domino’s, the Fifth District also addressed whether a surviving
spouse who married the decedent after the decedent’s injury occurred is
12
barred from recovering loss of consortium damages under the Wrongful
Death Act. 248 So. 3d at 216.
In Domino’s, the decedent was involved in a two-car accident. Id. The
accident immediately rendered the decedent a quadriplegic. Id. One
month after the accident, the decedent filed a negligence action against
the other driver and related defendants. Id. at 217. Some months later,
the decedent got married. Id. Then, over a year after the injury occurred,
the decedent died. Id. The decedent’s estate was substituted as the
plaintiff. Id. The estate then filed an amended complaint to allege the
wife’s wrongful death damages claim. Id.
The defendants filed various motions arguing the wife was barred from
recovering damages pursuant to the “marriage before injury” rule because
she married the decedent after he was injured. Id. The trial court denied
the defendants’ motions, and the estate ultimately prevailed at trial on the
wife’s damages claim. Id. at 217-18.
On appeal, the Fifth District specifically analyzed whether, under the
Wrongful Death Act, a person’s status as a “surviving spouse” is
determined on the date of injury, and thus whether the wife qualified as a
“surviving spouse” under the Act. Id. at 218-21. Concluding that the wife
qualified as a “surviving spouse” under the Act, the Fifth District reasoned:
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. Univ. of Fla. Bd. of Trs. v. Andrew,
961 So. 2d 375, 376 (Fla. 1st DCA 2007); see State v. Nichols,
892 So. 2d 1221, 1227 (Fla. 1st DCA 2005) (holding failure of
statute to define term does not necessarily render statute
ambiguous). The common and ordinary meaning of the term
“survivor” is “esp. a person remaining alive after an event in
which others have died.” Survivor, The Oxford American
College Dictionary (2002 ed.). Black’s Law Dictionary defines
“survivor” even more succinctly as “[o]ne who outlives
another.” Survivor, Black’s Law Dictionary (9th ed. 2009). By
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, we conclude the term “surviving spouse” is necessarily
determined on the date of the other spouse’s death because
one cannot be a survivor before that date. Accord King v. Font
13
Corp., 612 So. 2d 662, 664 (Fla. 2d DCA 1993) (“[I]t seems
clear that the definition of ‘survivors’ in section 768.18,
Florida Statutes (Supp. 1990), determines survivorship at the
moment of the wrongful death.”); see Snyder v. Alamo Rent-A-
Car, Inc., 790 So. 2d 1262, 1262 (Fla. 5th DCA 2001) (Sharp,
J., concurring specially) (noting that this Court’s affirmance
was based on King); Thomas D. Sawaya, 6 Fla. Prac., Personal
Injury & Wrongful Death Actions § 20:1 (2017-18 ed.) (“The
definition of survivor in this statute determines survivorship
at the time of the decedent’s death.” (citing King, 612 So. 2d
at 664)).
This conclusion is consistent with cases recognizing that
wrongful death actions accrue on the date of the decedent’s
death. See, e.g., Love v. Hannah, 72 So. 2d 39, 41 (Fla. 1954)
(“The plaintiffs’ right of action under the wrongful death
statute must be determined by the facts existing at the time
of the death of decedent.”); Phlieger v. Nissan Motor Co., 487
So. 2d 1096, 1098 (Fla. 5th DCA 1986) (reiterating that
supreme court held, in Love, that plaintiff’s right of action
under wrongful death statute must be determined by facts
existing at time of decedent’s death); Bruce v. Byer, 423 So. 2d
413, 414-15 (Fla. 5th DCA 1982) (“The general rule is that a
cause of action for wrongful death accrues upon the date of
the decedent’s death.”).
248 So. 3d at 219 (emphasis added).
The Fifth District, recognizing that its holding conflicted with Kelly,
addressed Kelly as follows:
We agree that although the definition of “survivors” is
limited to familial relationships, nothing in that definition
limits those terms to familial relationships existing at the
time of injury. As the Kelly dissent observed, “The statute
defines ‘survivors’ as including ‘the decedent’s spouse’
without any other limitation.” Id. at 348 (Taylor, J.,
dissenting). Thus, “[i]t would be inappropriate for this Court
to read any more into [the statutory definition] than what is
plainly there.” Streeter, 509 So. 2d at 272. “Even where a
court is convinced that the legislature really meant and
intended something not expressed in the phraseology of the
act, it will not deem itself authorized to depart from the plain
meaning of the language which is free from ambiguity.”
14
Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.
2d 452, 454 (Fla. 1992) (quoting Van Pelt v. Hilliard, 75 Fla.
792, 78 So. 693, 694 (1918)).
Moreover, if, as posited by the Kelly majority, survivorship
is determined at the time of injury, then children born or
adopted by the decedent after the date of injury would not be
considered survivors. Likewise, a spouse who divorces a
decedent after the date of injury would be considered a
survivor. This would be contrary to established precedent
holding that such determinations are made at the time of the
decedent’s death. See, e.g., Powell v. Gessner, 231 So. 2d 50,
51 (Fla. 4th DCA) (“[T]he status of a child in respect to its right
to sue for the wrongful death of a parent is determined at the
time of the death of the parent.”), opinion adopted, 238 So. 2d
101 (Fla. 1970). It also would be contrary to the legislative
intent expressed in section 768.17, Florida Statutes (2012),
which states, “It is the public policy of the state to shift the
losses resulting when wrongful death occurs from the
survivors of the decedent to the wrongdoer. Sections 768.16-
768.26 are remedial and shall be liberally construed.” See
also Wagner, Vaughan, McLaughlin & Brennan, P.A. v.
Kennedy Law Grp., 64 So. 3d 1187, 1191 (Fla. 2011) (noting
that Act is “designed to substitute the financial resources of
the wrongdoer for the resources of the decedent, in an attempt
to meet the financial obligations of the decedent, ... and to
prevent a tortfeasor from evading liability for his or her
misconduct when such misconduct results in death”).
The Kelly majority’s reliance on the Act’s damage
provisions to limit the definition of survivors is unconvincing.
It concluded that the phrase “from the date of injury,”
repeatedly used in the damages section, “indicates that the
legislature anticipated that the surviving spouse would have
been married to the decedent prior to the date of injury.” 211
So. 3d at 345. While it is appropriate to read all sections of
the Act together to determine the meaning of its terms, see,
e.g., BellSouth Telecommunications, Inc. v. Meeks, 863 So. 2d
287, 290 (Fla. 2003) (“To ascertain the meaning of a specific
statutory section, the section should be read in the context of
its surrounding sections.”), we agree with the Kelly dissent
that the damages provisions do not limit who may recover,
but rather, only limits what a survivor may recover. See Kelly,
211 So. 3d at 349 (Taylor, J., dissenting). In fact, the
15
legislature’s frequent differentiation between the “date of
injury” and the “date of death” in section 768.21 demonstrates
its awareness that these may be two different dates in a given
case. Given this recognition, it is illogical to conclude that the
legislature would not also have recognized that a decedent’s
legal relationships and obligations may change between the
date of injury and date of death. Yet, the Kelly majority’s
conclusion limits such relationships and obligations to those
present on the date of injury. If the legislature intended to
limit survivors to those existing on the date of injury, it could
have done so. …
Even if such a limitation is read into the statute based on
the damages language, it would, at best, create an ambiguity
as to whether survivors are determined on the date of injury
or the date of death. …
…
For these reasons, we affirm the trial court’s ruling
allowing [the wife] to recover as a [“]surviving spouse[”] [under
the Act]. We certify express and direct conflict with Kelly on
this issue.
Id. at 220-21.
3. Why We Favor Our Reasoning Over the Fifth District’s Reasoning
We favor our reasoning in Kelly over the Fifth District’s reasoning in
Domino’s, because in Domino’s, the Fifth District neither mentioned
Thornber nor conducted the required Thornber analysis.
Thornber requires a court to examine whether a legislative enactment
either unequivocally states that it changes the common law “or is so
repugnant to the common law that the two cannot coexist ….” 568 So. 2d
at 918. As we held in Kelly:
[T]here appears to be no reason why the common law
requirement—that the injured spouse and the surviving
spouse be married prior to the date of injury—cannot coexist
with the Wrongful Death Act. Nothing in the Wrongful Death
Act is “so repugnant to the common law that the two cannot
coexist.” Thornber, 568 So. 2d at 918. The common law rule
merely limits the circumstances for when the surviving spouse
16
may recover “consortium-type” damages under the wrongful
death statute for the “decedent’s companionship and
protection and for mental pain and suffering from the date of
injury.” § 768.21(2), Fla. Stat. (2015).
211 So. 3d at 345.
In Domino’s, however, the Fifth District examined the Wrongful Death
Act without ever mentioning, much less analyzing, Thornber. Instead, the
Fifth District read the Act in isolation. That approach overlooked the
principle, which we referenced in Kelly, that statutes in derogation of the
common law “will not be interpreted to displace the common law further
than is clearly necessary.” Kelly, 211 So. 3d at 344 (citing Carlile v. Game
& Fresh Water Fish Comm’n, 354 So. 2d 362, 364 (Fla. 1977)).
We also understand Domino’s as permitting the “absurd result” of
which we forewarned in Kelly:
[I]t would make no sense to allow a spouse to recover
consortium damages under the Wrongful Death Act simply
because his or her spouse has died when that same spouse
would be prohibited from recovering the same damage under
a loss of consortium claim had his or her spouse survived. We
are required to interpret the Wrongful Death Act to avoid
absurd results such as this. Allstate Ins. Co. v. Rush, 777 So.
2d 1027, 1032 (Fla. 4th DCA 2000) (“In all, statutes must be
construed as to avoid an unreasonable or absurd result.”).
211 So. 3d at 346.
Based on the foregoing, we reject the estate’s argument to recede from
Kelly, and therefore affirm the circuit court’s order granting the
defendants’ motion for judgment on the pleadings as to the wife’s claim
“for loss of the decedent’s companionship and protection and for mental
pain and suffering” under section 768.21(2) of the Wrongful Death Act.
However, we certify conflict between Kelly and Domino’s.
B. The Adult Children’s Claim
On the circuit court’s order granting the defendants’ motion for
summary judgment as to the adult children’s alternative damages claim,
our review is de novo. See Volusia County v. Aberdeen at Ormond Beach,
L.P., 760 So. 2d 126, 130 (Fla. 2000) (standard of appellate review
17
applicable to grant of summary judgment is de novo); Headley, 215 So. 3d
at 5 (“Issues of statutory interpretation are subject to de novo review.”).
Applying de novo review, we reverse the summary judgment. We begin
our analysis by recognizing the circuit court apparently found that the
decedent’s adult children were barred from recovery because the
decedent’s wife was his “surviving spouse” under section 768.21(3) of the
Wrongful Death Act. See § 768.21(3), Fla. Stat. (2015) (“Minor children of
the decedent, and all children of the decedent if there is no surviving
spouse, may also recover for lost parental companionship, instruction,
and guidance and for mental pain and suffering from the date of injury.”)
(emphases added).
However, the circuit court failed to properly account for the fact that
the defendants’ motion for judgment on the pleadings already had
successfully argued that the decedent’s wife was not his “surviving spouse”
under section 768.21(2) of the Wrongful Death Act. See § 768.21(2), Fla.
Stat. (2015) (“The surviving spouse may also recover for loss of the
decedent’s companionship and protection and for mental pain and
suffering from the date of injury.”) (emphases added).
At the defendants’ urging, the circuit court attempted to reconcile its
inconsistent findings under sections 768.21(2) and 768.21(3) by
describing the decedent’s wife as his “surviving spouse, albeit a spouse
who is herself barred from recovery pursuant to Kelly.”
However, we conclude this was error. As the estate argued to the circuit
court, the defendants engaged in an “irreconcilable contradiction” in
arguing that the decedent’s wife was not his “surviving spouse” under
section 768.21(2) of the Act, while in the same breath, contending that the
decedent’s wife was his “surviving spouse” under section 768.21(3) of the
Act, thus precluding the decedent’s adult children from recovering
damages under section 768.21(3) of the Act. As the estate further argued,
the defendants’ contradicting positions “cannot be harmonized.”
In legal terms, we can best describe this situation as being most similar
to the doctrine of judicial estoppel. “Judicial estoppel is an equitable
doctrine that is used to prevent litigants from taking totally inconsistent
positions in separate judicial … proceedings.” Blumberg v. USAA Cas. Ins.
Co., 790 So. 2d 1061, 1066 (Fla. 2001) (citation omitted). Under Florida’s
judicial estoppel doctrine:
A claim made or position taken in a former action or
judicial proceeding will, in general, estop the party to make an
18
inconsistent claim or to take a conflicting position in a
subsequent action or judicial proceeding to the prejudice of
the adverse party.
In order to work an estoppel, the position assumed in the
former trial must have been successfully maintained. In
proceedings terminating in a judgment, the positions must be
clearly inconsistent, the parties must be the same and the
same questions must be involved.
Id. (citation omitted).
We recognize this case does not fit squarely within the Florida Supreme
Court’s description of judicial estoppel, because here the defendants took
inconsistent positions in two dispositive motions within a single action or
proceeding, rather than in separate actions or proceedings. But see New
Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 1814, 149 L. Ed.
2d 968 (2001) (“[J]udicial estoppel[] generally prevents a party from
prevailing in one phase of a case on an argument and then relying on a
contradictory argument to prevail in another phase.”) (emphases added;
citations omitted); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice
and Procedure § 4477, p. 782 (1981) (“[A]bsent any good explanation, a
party should not be allowed to gain an advantage by litigation on one
theory, and then seek an inconsistent advantage by pursuing an
incompatible theory.”).
However, we consider that distinction to be insignificant in this case,
because the prejudicial effect is the same. Here, in the defendants’ earlier-
filed motion for judgment on the pleadings on the decedent’s wife’s
damages claim, the defendants successfully took the position that the
decedent’s wife was not his “surviving spouse” under section 768.21(2) of
the Wrongful Death Act, due to “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.” Thus, the defendants
successfully maintained that the decedent’s wife was not entitled to
recover damages under section 768.21(2) of the Act.
Yet in the defendants’ later-filed motion for summary judgment on the
decedent’s adult children’s damages claim, the defendants took the totally
inconsistent position that the decedent’s wife was his “surviving spouse”
under section 768.21(3) of the Wrongful Death Act. This inconsistent
position allowed the defendants to successfully maintain that the
decedent’s adult children were not entitled to recover damages under
section 768.21(3) of the Act either.
19
Again, the defendants cannot engage in such an “irreconcilable
contradiction.” Their attempt to have the circuit court reconcile the
contradiction by describing the decedent’s wife as a “surviving spouse,
albeit a spouse who is herself barred from recovery pursuant to Kelly,”
(emphasis added), essentially attempts to impermissibly rewrite section
768.21 by adding those words to the statute. This we cannot do. See
Westphal v. City of St. Petersburg, 194 So. 3d 311, 313-14 (Fla. 2016) (“The
judiciary … is without power to rewrite a plainly written statute ….”);
Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999) (“We are not at liberty to add
words to statutes that were not placed there by the Legislature.”).
Conclusion
Based on the foregoing, we affirm the circuit court’s order granting the
defendants’ motion for judgment on the pleadings as to the decedent’s
wife’s damages claim based on Kelly v. Georgia-Pacific, LLC, 211 So. 3d
340 (Fla. 4th DCA 2017).
However, we reverse the circuit court’s order granting the defendants’
motion for summary judgment as to the decedent’s adult children’s
alternative damages claim. As a matter of first impression, we agree with
the estate that, if a spouse who had married the decedent after the
decedent’s injury is barred from recovering damages under section
768.21(2) of the Wrongful Death Act (per Kelly), then the decedent’s
surviving adult children may recover damages under section 768.21(3) of
the Wrongful Death Act. To rule otherwise would contravene section
768.17, Florida Statutes (2012), providing, “It is the public policy of the
state to shift the losses resulting when wrongful death occurs from the
survivors of the decedent to the wrongdoer.” § 768.17, Fla. Stat. (2015).
We certify conflict between Kelly and Domino’s Pizza, LLC v. Wiederhold,
248 So. 3d 212 (Fla. 5th DCA 2018).
Affirmed in part, reversed in part, conflict certified.
CIKLIN and FORST, JJ., concur.
GERBER, J., concurs specially with an opinion.
GERBER, J., concurring specially.
I fully concur in the majority opinion. Specifically, I agree with our
holding in Kelly v. Georgia-Pacific, LLC, 211 So. 3d 340 (Fla. 4th DCA
2017), that under the principles of Thornber v. City of Fort Walton Beach,
20
568 So. 2d 914 (Fla. 1990), no language within the Wrongful Death Act
abrogates or supersedes the common law prohibition against “marrying
into a cause of action” for loss of consortium. See Thornber, 568 So. 2d at
918 (“Unless a statute unequivocally states that it changes the common
law, or is so repugnant to the common law that the two cannot coexist, the
statute will not be held to have changed the common law.”).
Thus, I disagree with the Fifth District’s holding in Domino’s Pizza, LLC
v. Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018), which interpreted the
Wrongful Death Act without having conducted a Thornber analysis to
determine whether the Wrongful Death Act abrogated or superseded the
common law prohibition against “marrying into a cause of action” for loss
of consortium. Domino’s potentially opens a wide door to a future case in
which a person, not necessarily involved in a relationship of love and
affection with the injured person, is permitted to “marry into a cause of
action” simply by marrying the injured person before the injured person’s
death, and thereby become the decedent’s “surviving spouse” in order to
recover damages under section 768.21(2), Florida Statutes (2015).
I write separately, however, to elaborate that Kelly, though correctly
decided on the law, serves as an unfortunate factual application of the
common law prohibition against “marrying into a cause of action.” In
Kelly, we held, in pertinent part:
[T]he Florida Wrongful Death Act does not clearly or explicitly
abrogate or overturn the common law requirement that the
decedent and surviving spouse be married prior to the date of
injury to recover consortium damages. Although there may
be persuasive policy reasons for superseding this
common law rule, especially in the present case where
the injury is latent, such a change may come only from
the legislature by statutory enactment.
Id. at 347 (emphases added; internal footnote omitted).
I recognize Kelly properly characterized the decedent’s injury in that
case as having occurred at the time of his asbestos exposure in 1973 or
1974. See id. at 344 (citing Am. Optical Corp. v. Spiewak, 73 So. 3d 120,
129 (Fla. 2011) (“Here, a foreign substance—asbestos fibers—were inhaled
and became embedded in the lungs of the plaintiffs without their
knowledge or consent. This … constitutes an actual injury that has
been inflicted upon the bodies of the plaintiffs.”)) (emphases added).
21
Yet, in Kelly, after the decedent got married in 1976, he and his wife
enjoyed a nearly forty-year marriage until, in 2014, he was diagnosed with
mesothelioma and died the following year. 211 So. 3d at 342. Because
the decedent’s injury was latent for decades, nothing within Kelly’s facts
would suggest that the decedent’s wife, nearly forty years earlier, had
“married into a cause of action.” Yet the common law prohibition against
“marrying into a cause of action” – requiring that a spouse be married to
the injured person at the time of the injury for the spouse to bring a loss
of consortium claim – dictated Kelly’s unfortunate consequence.
I doubt the common law prohibition against “marrying into a cause of
action” was developed with the understanding that such an unfortunate
consequence would occur in Kelly or in any other case in which a pre-
marriage latent injury does not manifest itself until long after a marriage
founded on “that affection, solace, comfort, companionship, conjugal life,
fellowship, society and assistance so necessary to a successful marriage”
has been fulfilled. Id. at 344 (quoting Gates v. Foley, 247 So. 2d 40, 43
(Fla. 1971)). However, as we indicated in Kelly, any attempt to avoid such
an unfortunate consequence may come from the legislature only.
* * *
Not final until disposition of timely filed motion for rehearing.
22