Thomas PERKINS, As Personal Representative of the Estate of Anthony Perkins, a Deceased Minor, Appellant, v. VARIETY CHILDREN‘S HOSPITAL, Appellee.
No. 80-1671
District Court of Appeal of Florida, Third District
January 12, 1982
Rehearing Denied May 18, 1982
413 So. 2d 760
Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.
Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
FERGUSON, Judge.
The main issue in this appeal is whether a judgment recovered by a child for personal injuries during his lifetime bars a subsequent wrongful death action by his personal representative where the death is caused by the same injuries. We reverse the trial court and hold that the prior judgment is no bar.
Plaintiff Thomas Perkins, as the personal representative of the estate of the deceased minor son Anthony Perkins, filed a wrongful death action against defendant Variety Children‘s Hospital seeking damages for mental pain and anguish suffered by him and his wife as parents of the deceased minor and for the funeral expenses of the child. The defendant hospital answered the complaint affirmatively alleging that the plaintiff father had no right of action for the wrongful death because (1) the minor had already sued for the injury and had received a judgment which had been satisfied, (2) the statute of limitations for a personal injury action had expired prior to the time of the minor‘s death. The facts alleged in the affirmative defenses were admitted. The trial court denied plaintiff‘s motion to strike these defenses on the grounds that they were valid defenses, then entered a Final Summary Judgment for the hospital.
The parties agree that resolution of the main issue pivots on the interpretation to be given certain language in the Florida Wrongful Death Act,
When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, ... and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person ... that would have been liable for damages ... shall be liable for damages as specified in this act notwithstanding the death of the person injured... (emphasis added).
The crucial language from the statute is emphasized above. The threshhold question is whether, as advanced by appellee, the right of the parents to maintain a wrongful death action depends upon the child‘s right to sue for his personal injuries at the time of his death. In light of well-established Florida law, we must reject appellee‘s argument. A proper analysis of the questioned statutory language begins with a focus upon the event, i.e., whether the event causing injury is one which would have entitled the decedent to bring an action for personal injury. See, e.g., Epps v. Railway Express Agency, Inc., 40 So. 2d 131 (Fla. 1949); Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 266 A.2d 569 (N.J. 1970) and cases compiled therein. See also W. Prosser, Law of Torts, § 127 (4th ed. 1971) (“The more reasonable interpretation would seem to be that [similar clauses in wrongful death statutes] are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather then to subsequent changes in the situation affecting only the interest of the decedent“).
The Florida Supreme Court has consistently found that
Florida‘s Wrongful Death Act creates an independent cause of action without regard to whether the injured person or his personal representative have ever initiated suit on the original cause of action.
This conclusion is the logical consequence of a finding that the statutory wrongful death action is not wholly derivative upon the decedent‘s right to sue for his own injuries at the time of his death. Accord Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974). In Gaudet, the Court held that a widow of a longshoreman could maintain an action for the wrongful death of her husband after the decedent recovered damages in his lifetime for his injuries. Central to the Court‘s findings were the determinations that (1) the wrongful death statute — as do most — created an independent cause of action in favor of the decedent‘s dependents, Gaudet, 414 U.S. at 578, 94 S. Ct. at 811, 39 L. Ed. at 17, n. 5, and (2) that recovery was not barred by res judicata or public policy, id., U.S. at 579, 94 S. Ct. at 811, 39 L. Ed. 2d at 18, including the problem of double liability, id., U.S. at 583-95, 94 S. Ct. at 814-20, 39 L. Ed. 2d at 20-26. See also Alfone v. Sarno, 87 N.J. 99, 432 A.2d 857 (N.J. 1981), affirming, 168 N.J. Super. 315, 403 A.2d 9 (N.J. App. 1979). Appellant is correct in arguing that under Florida law, the statutory language refers to the qualifying nature of the “event,” and not to whether the decedent ever sued in his lifetime. Epps v. Railway Express Agency, supra.
In Warren v. Cohen, 363 So. 2d 129 (Fla. 3d DCA 1978), the Third District Court of Appeal agreed that
Nor is the specter of double recovery a compelling public policy argument for blocking a subsequent wrongful death action. It cannot be ignored that a judgment for personal injury by the decedent in his lifetime may be grossly inadequate to compensate for the subsequent death which is a result of the same injury especially where death was not contemplated. Though we have not found any Florida cases specifically discussing the policy considerations of avoiding double recovery and of achieving finality of litigation, existing cases, as well as the Florida negligence statute which particularly delineates recoverable damages, suggest that Florida recognizes those safeguards against double recovery which are discussed in Gaudet, and Alfone, both supra.
In the personal injury action the jury returned a verdict of $1,000,000.00 for the minor decedent and $200,000.00 to his parents for medical care. A portion of the award was for future losses and care. The child, who was only four-months old at the time of the injury, died a few months after the judgment was entered.
Future losses pose the greatest danger of double recovery — the chief concern of those in favor of barring a subsequent action. But wrongful death benefits are a supplement not a duplication of damages awarded to the decedent and prevention of double recovery is capable of management by the court on a case-by-case basis.
On the facts of this case fairness and equity require that those amounts awarded
As a second issue on appeal it is contended that the statute of limitations could not bar the wrongful death action. Again we agree.
The question of liability having been decided in the personal injury action, Variety Children‘s Hospital, Inc. v. Perkins, 382 So. 2d 331 (Fla. 3d DCA 1980) only the issue of damages pursuant to the wrongful death section remains to be litigated. A prior decision of liability will preclude litigation of that issue under the wrongful death statute.4 See Collins v. Hall, supra (judgment against husband estopped wife from recovery under wrongful death statute). See, e.g., Epps v. Railway Express Agency, supra (adverse final judgment entered in prior wrongful death suit by wife operated as collateral estoppel and barred recovery in subsequent suit by wife as administrator). Cf. Seaboard Coast Line Railroad Co. v. Cox, 338 So. 2d 190 (Fla. 1976) (applying estoppel by judgment); Allstate Insurance Co. v. A.D.H., Inc., 397 So. 2d 928 (Fla. 3d DCA 1981) (estoppel as to liability issue). See Restatement (Second) of Judgments, § 92.1(3) (Tent. Draft No. 3, 1976) (issues determined by judgment for or against person in action based on act later causing death are conclusive in subsequent action for wrongful death).5
Thomas PERKINS, As Personal Representative of the Estate of Anthony Perkins, a Deceased Minor, Appellant, v. VARIETY CHILDREN‘S HOSPITAL, Appellee.
No. 80-1671
District Court of Appeal of Florida, Third District
January 12, 1982
Rehearing Denied May 18, 1982
413 So. 2d 760
PEARSON, TILLMAN (Ret.), Associate Judge, dissenting.
The holding in the majority opinion is that a right of action in Florida for wrongful death is not conditioned upon the ability of the deceased to sue for the tort which caused his death. As authority for the proposition that this state has adopted such an interpretation of the Florida Wrongful Death Act,
It is agreed that this issue must be determined through an interpretation of the Act.
When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony. [Emphasis supplied.]
Upon the basis of the crucial language of the statute (emphasized above), a majority of jurisdictions have adopted the view that a right of action for wrongful death is dependent upon a right of action of the deceased at the time of his death. Consequently, if prior to his death, the deceased‘s personal injury action had been reduced to judgment and he could not, therefore, maintain an action for his injuries at the time of his death, his survivors would have no right of action for damages suffered by them as a result of the death. See the various authorities for this majority view cited by us in Warren v. Cohen, 363 So. 2d 129, 131 n. 1 (Fla. 3d DCA 1978).
The question presented in Warren was whether a release executed by an injured person barred a subsequent wrongful death action for the same injury. In accordance with the majority view, we held that the subsequent wrongful death action was barred by the prior release. It would be difficult to distinguish that holding from the holding of the trial court in the present case. This is especially true because in Warren we cited authority for the principle that an existing judgment will bar a subsequent wrongful death action. See Roberts v. Union Carbide Corporation, 415 F.2d 474 (3d Cir.1969); see also Schlavick v. Manhattan Brewing Co., 103 F. Supp. 744 (N.D. Ill. 1952).
We are told, however, that the courts of this state have adopted the minority view. In the case of Shiver v. Sessions, 80 So. 2d 905 (Fla. 1955), the inter-spousal immunity doctrine was held by the Florida Supreme Court not to prevent the surviving children of a deceased mother from maintaining a wrongful death action against the estate of their stepfather, even though a personal injury action by their mother against the stepfather could not have been maintained during the mother‘s lifetime. The Court stated:
[I]t is clear that the Legislature intended that the right of action created by the Wrongful Death Act in favor of the named beneficiaries must be predicated upon operative facts which would have constituted a tort against their decedent under established legal principles — in other words, they must state a “cause of action” for tort against the tortfeasor, subject to the defenses of contributory negligence and the like which the tortfeasor could have pleaded in a suit against him by the decedent during his or her lifetime, and this court has so held in many cases. But we think it is unreasonable
to imply that the Legislature intended to bar the “right of action” created by the Act on account of a disability to sue which is personal to a party having an entirely separate and distinct “right of action” and which does not inhere in the tort — or “cause of action” — upon which each separate right of action is based.
It is true that the Florida Supreme Court did refer to the “right of action” created by the Act as being one that is entirely separate and distinct. I think, however, that the language used did not depart from the law established in prior Florida Supreme Court cases; rather, it explained how the cause of action would not be destroyed despite the artificial bar to the creation of the action by the inter-spousal immunity. The reasoning employed by the Court does not negate that provision of the Act requiring an “... event ... entitl[ing] the person injured to maintain an action and recover damages if death had not ensued ...”1 As pointed out by the Court, the emphasis is on the event and, therefore, it is the “event” which must qualify, and which, in fact, did qualify in Shiver, thereby giving rise to a cause of action. In the present case, however, I would hold that the event should not qualify because full satisfaction has been received by the deceased himself.
The crucial provision was included in that version of Florida‘s wrongful death statute which was in effect in 1894,2 when the Florida Supreme Court decided Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894). That case held that there was no recovery in a wrongful death action where the deceased party would have had no cause of action. See also Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934), where no action could lie because the deceased had sued on the cause and had suffered an adverse judgment. If the Florida Supreme Court had intended in Shiver to recede from its prior decisions, it would have so indicated. However, Shiver did not change the law in Florida and, therefore, I would affirm.
Thomas PERKINS, As Personal Representative of the Estate of Anthony Perkins, a Deceased Minor, Appellant, v. VARIETY CHILDREN‘S HOSPITAL, Appellee.
No. 80-1671
District Court of Appeal of Florida, Third District
January 12, 1982
Rehearing Denied May 18, 1982
413 So. 2d 760
Following the issuance of our opinion of January 12, 1982, timely motions for rehearing, clarification, and certification were filed by the parties. Both parties call attention to the second sentence, third paragraph on page six of the opinion as a misapprehension by the court — that there was no itemized verdict apportioning damages as between past and future damages because the personal injury action was filed prior to July 1, 1976, the effective date of
This set-off should present no difficulty in future cases of this nature as
Section 768.48(2) now requires that a judgment for a patient against a health care provider itemize each category of damages into amounts intended to compensate for losses incurred prior to the verdict and amounts intended to compensate for losses to be incurred in the future.
Except as to this sentence, we adhere to the original opinion and deny the appellant‘s motion for clarification, and appellee‘s motion for rehearing.
On suggestion of appellee we certify the following question to the Supreme Court of the State of Florida as one of great public importance:
Whether a judgment for personal injuries recovered during life-time of an injured person bars a subsequent wrongful death action by the personal representative of the deceased where death is a result of the same injuries.
NOTES
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Notes
In Ryter v. Brennan, 291 So. 2d 55 (Fla. 1st DCA 1974), cert. denied, 297 So. 2d 836 (Fla. 1974), a wife and husband were injured in an automobile accident; the husband eventually died from those injuries. Prior to his death the husband signed a comprehensive release, including release of any claim for wrongful death. The wife subsequently brought an action to recover for her own injuries. The jury was given a broad charge that the wife could recover for any loss caused by the injuries and subsequent death of husband including loss of consortium.
Prior to the court‘s holding in Gates v. Foley, 247 So. 2d 40 (Fla. 1971) the wife had no independent right to sue for loss of consortium and, because the husband had signed the release prior to the Gates decision, the claim would normally be barred. In this case, however, because the Gates decision changed the law after judgment but pending the appeal, the appellate court reversed for a new trial in which the wife could prosecute her individual claims for personal injuries and her loss of consortium. This holding supports the Warren decision and is consistent with Shiver and the other cases holding that the wrongful death action creates an independent right.
In Boole v. Florida Power & Light Company, 147 Fla. 589, 3 So. 2d 335 (1941), the court held that a directed verdict in a wrongful death action was improperly granted decedent. The wife had presented substantial evidence which would void the release signed by her husband prior to his death, i.e., mutual mistakes as to seriousness of injury and not intent that the release cover injuries not then known or contemplated. This also supports the Warren holding that a release bars a subsequent wrongful death action.
In Mellon v. Goodyear, 277 U.S. 335, 48 S. Ct. 541, 72 L. Ed. 906 (1928), the court held that a settlement during his lifetime, by an employee injured in interstate commerce, of his right of action under the Employers’ Liability Act (1908) prevented recovery by his administrator after his death. The Court‘s concern was with the problem of double recovery as it noted that neither the Liability Act nor Lord Campbell‘s Act (model for the wrongful death acts) defined the nature of the damages to be recovered.
In Walrod v. Southern Pacific Co., 447 F.2d 930 (9th Cir.1971) the court held that a prior judgment barred a subsequent wrongful death action brought pursuant to the Federal Employers’ Liability Act (45 U.S.C. § 51). The court cited Mellon and stated that the right was derivative and dependent upon the continuance of the right of the injured employee at the time of his death. This is not nor ever was the law in Florida. Nor can the court‘s reasoning be reconciled with the Supreme Court case of Gaudet, supra, holding that the wrongful death statute created an independent cause of action.
Chapter 3499; statute approved February 28, 1883.