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Loss of Consortium Claim Survives Death of Spouse

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Important ruling preserves right of surviving spouses to proceed with loss of consortium claim after death of spouse.  Randall v. Walt Disney, (Fla. 5th DCA 2014).

Mrs. Randall and her husband were on a roller coaster at Walt Disney World, where allegedly Mr. Randall sustained head and neck injuries on the roller coaster. Mr. Randall filed a personal injury claim against Walt Disney, and Mrs. Randall filed a loss of consortium claim against Walt Disney.  Mr. Randall then died, and it is claimed that he died as a result of the roller coaster injury. 

Florida Rule of Civil Procedure 1.260 requires that, when a party in a lawsuit dies, there is 90 days from the filing of a suggestion of death to substitute into the personal representative of the deceased’s estate.  If the substitution is not done on time, in the absence of very good cause, the deceased party is dismissed from the lawsuit.  This can be a very harsh rule and a trap for the unwary – the substitution must be done on time.  The trial court then dismissed the personal injury case because of the lack of timely substitution, and the appellate court affirmed the dismissal. 

The trial court also dismissed the surviving spouse’s loss of consortium claim, under the theory that the claim was derivative and cannot survive on its own.  The dismissal of the underlying personal injury claim required the dismissal of the loss of consortium claim.  

The appellate court reversed, holding that the surviving spouse’s loss of consortium claim survived. Another appellate court (the Third District) came to the opposite conclusion regarding the survival of the loss of consortium claim.  This court explained is disagreement as follows:

The Third District implicitly concluded that because the surviving spouse can recover from the date of injury, the loss of consortium from the date of injury merges with the continuing injury suffered after death, and the surviving spouse therefore recovers. We find this analysis problematic because it considers only a situation where a wrongful death action can be maintained. Indeed, under the third district’s interpretation, where the injured spouse dies from an injury unrelated to the personal injury action, the surviving spouse who suffered a loss of consortium would not be able to maintain a wrongful death action. Therefore, the surviving spouse would lose a vested right to recover for a loss of consortium from the date of injury to the date of death. This cannot be the result the Legislature intended and, here, that would be the effect.

The Florida Supreme Court will eventually have to determine which appellate court has it right.  I the meantime, the disparate treatment will continue. 

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