Undoubtedly, the spouse of an injured person has felt the effects an injury can have on a family. From taking the injured spouse to doctor appointments to the lack of intimacy between the couple, an injury can have dramatic effects on a marriage.
In this article, you will understand what a loss of consortium claim is and whether it survives the death of a spouse in Florida.
Loss of Consortium Claim – Understanding the Concept
A loss of consortium is the loss associated with the deprivation of benefits that the relationship with a spouse offers, including companionship, affection, love, comfort, and sexual intimacy. When someone is injured, that person’s spouse may no longer be able to benefit from these intimacies with the victim.
In such cases, the spouse may have the right to file a personal claim seeking to compensate for a lost relationship. If a loss of consortium claim is based on legal grounds, the court may recognize these damages and provide the injured person’s spouse the right to recover monetary compensation from the party responsible for the injury – either it is an individual or an entity.
Does a Loss of Consortium Claim Survive the Death of the Spouse in Florida? – A Realistic Overview
Florida case law demonstrates that the right of surviving spouse to proceed with a loss of consortium claim after the death of an injured spouse is still uncertain. To understand why, it is important to look at the precedent set by the case Randall v. Walt Disney, (Fla. 5th DCA 2014).
The action was filed by Mr. Randall and his wife based on head and neck injuries sustained on a roller coaster at Walt Disney World. Mr. Randall personally filed an injury claim against Disney, while Mrs. Randall filed a loss of consortium claim.
However, Mr. Randall eventually died. Florida Rule of Civil Procedure 1.260 (a)(1) provides that “if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.”
If the substitution is not done within the 90-day statutory deadline, the deceased party is dismissed from the lawsuit. As a personal representative of Mr. Randall’s estate did not substitute timely, the trial court dismissed the personal injury case.
Additionally, the court also dismissed the loss of consortium claim filed by Mrs. Randall, stating that the claim would not survive on its own as it was a “derivative” of the deceased’s personal injury claim.
The case went to the Appellate Court, which determine that the surviving spouse’s loss of consortium claim survived the death of Mr. Randall. When the case went to a second appellate court (Third District Appellate Court), they came to the opposite conclusion.
Under the Third District Appellate Court’s interpretation, the injured spouse died from an injury unrelated to the personal injury action.
Hence, “the surviving spouse who suffered a loss of consortium would not be able to maintain a wrongful death action.” Now, the Florida Supreme Court must determine which appellate court’s decision was right.