Florida Appeals Courts Disagree Over Loss of Consortium Claims

The impact of a personal injury reaches far beyond the physical suffering of the victim. Family members and spouses often find that their relationships with an injured person suffer greatly. Florida courts have long recognized a claim termed “loss of consortium,” which is defined as the inability experienced by an injured person to engage in the marital relations, familial support, or companionship of which they once were capable. The injured person does not bring a claim for loss of consortium. Instead, the uninjured spouse or family member asserts the claim and joins in the injured spouse’s personal injury suit.

As is unfortunately the case sometimes, injuries caused by another’s negligence may ultimately result in the death of the injured party. In these cases, the survivors may bring a wrongful death suit. However, there has been controversy in Florida courts as to whether a loss of consortium claim can also survive the death of a spouse or family member. Recently in Margaret Randall, et al. v. Walt Disney World Co., et al., the District Court of Appeal for the Fifth District held that a loss of consortium claim does, in fact, survive the death of a spouse.

In that case, a husband and wife visited a theme park owned by Defendant. The husband purportedly suffered from injuries to his head and neck as a result of riding on one of the amusement rides at the park. The husband filed a personal injury claim against Defendant, and his wife also asserted a claim for loss of consortium. However, approximately two years into the litigation process, the victim passed away. According to the laws of Florida, after a claimant passes away, the representative of the estate must substitute himself or herself as a party in the lawsuit in order for the suit to continue. In this case, the wife failed to do so, and the trial court accordingly dismissed her wrongful death claim.

The trial court also dismissed the wife’s claim for loss of consortium, and she appealed the decision. The Fifth District Court of Appeal noted that it had previously held that a party’s loss of consortium claim could survive the death of an injured spouse, even when the personal injury claim did not survive.   However, the court noted that its previous holding was in conflict with a case decided in the Third District Court of Appeal. The Third District decision held that a loss of consortium cause of action did not survive the death of a spouse.

In the Randall case, the appellate court reaffirmed its conviction in its previous ruling and disagreed with its sister district’s analysis. In doing so, the court noted that there are situations in which a wrongful death action may not be brought after a claimant’s death. For example, if an individual with a pending personal injury claim dies from an unrelated cause, there can be no action for wrongful death against the original defendant. Therefore, the Fifth District held that a loss of consortium claim may be the only relief available for a surviving spouse under those circumstances. The Randall court reversed the trial court’s dismissal of the wife’s loss of consortium claim and also maintained its conflict with the Third District Court of Appeals. It may be possible that the Florida Supreme Court will settle the controversy sometime in the future.

If you or someone you love has a spouse that has been injured as a result of someone else’s negligence, you may have a claim for loss of consortium. The Southwest Florida injury attorneys at Lusk, Drasites & Tolisano can discuss your case and work quickly to assert your legal rights. You deserve compensation for the suffering you have endured. Contact us online or call toll-free at (800) 238-7442.

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