Kelly v. Georgia-Pacific, LLC
2017 Fla. App. LEXIS 2413
Fla. Dist. Ct. App.2017Background
- John and Janis Kelly: John worked with asbestos in 1973–1974, they married in 1976, John was diagnosed with mesothelioma in 2014 and died in 2015.
- Janis originally sued for husband’s personal injury (including loss of consortium); after John’s death she amended to a wrongful death claim seeking consortium-type damages under the Florida Wrongful Death Act.
- Defendants moved to dismiss Janis’s wrongful death consortium claim because she was not married to John at the time of the initial injury (asbestos exposure).
- Trial court dismissed the consortium portion of the wrongful death claim; Janis voluntarily dismissed remaining claims and appealed.
- The principal legal question: whether the Wrongful Death Act abrogates the common-law rule that a spouse must be married to the injured party at the time of injury to recover loss-of-consortium damages.
Issues
| Issue | Plaintiff's Argument (Kelly) | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Wrongful Death Act supersedes the common-law "marriage-before-injury" requirement for consortium damages | Wrongful Death Act creates an independent statutory cause of action and allows survivors to recover consortium-type damages regardless of marriage date | Common-law rule survives; statute does not explicitly abrogate marriage-before-injury requirement so it remains applicable | Held for defendants: Act does not explicitly, clearly, and unequivocally abrogate the common-law rule; spouse must have been married before injury to recover consortium damages under wrongful death statute |
| Whether latent injuries alter the marriage-before-injury rule | Latent-injury cases remove risk of "marrying into" a cause of action, so the rule should not apply | Common law applies regardless of latency unless legislature changes rule | Held: Latency does not avoid the common-law rule; courts must follow common law absent clear legislative change |
| Proper method of statutory interpretation when statute is remedial and affects common law | Kelly: remedial statutory language and definition of "survivor" show the legislature intended survivors (spouses) to recover consortium damages without the common-law timing limitation | Defendants: remedial status does not permit courts to override common-law limits unless statute explicitly does so; statutes in derogation of common law are narrowly read when changing common law requires clear legislative intent | Held: Even though Act is remedial, the presumption against changing common law controls absent explicit legislative language; the Act’s text does not expressly eliminate the timing requirement |
| Whether applying the common-law rule to wrongful-death consortium claims produces absurd results warranting judicial change | Kelly/dissent: applying the rule to long marriages with latent injury (decades) is absurd and unfair; statute’s plain language supports recovery | Defendants/majority: allowing recovery would produce results contrary to statutory language and permit "marrying into a cause of action"; such change must come from legislature | Held: Courts must avoid rewriting statute; any policy-driven change must come from legislature, so the rule stands |
Key Cases Cited
- Nissan Motor Co. v. Phlieger, 508 So.2d 713 (recognizing wrongful death as a statutory cause of action)
- Thornber v. City of Fort Walton Beach, 568 So.2d 914 (presumption no change in common law absent explicit statutory language)
- ACandS, Inc. v. Redd, 703 So.2d 492 (wrongful death damages include consortium-type recovery)
- Gates v. Foley, 247 So.2d 40 (definition and scope of loss of consortium at common law)
- Tremblay v. Carter, 390 So.2d 816 (Florida rule: spouse must be married at time of injury to recover consortium)
- St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071 (statutory interpretation; plain meaning rule)
- BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287 (remedial statute interpretation caveat)
- Fullerton v. Hospital Corp. of America, 660 So.2d 389 (applying marriage-before-injury rule in latent-injury context)
- Lovett v. Garvin, 208 S.E.2d 838 (contrasting view: wrongful-death recovery measured from death; marriage-at-death sufficient)