Before his death, Richard Counter filed a personal injury complaint against multiple defendants. Counter alleged common law negligence and strict liability actions and claimed that Defendants exposed him to asbestos from the 1950s through the 1990s.
On May 22, 2015, Counter was diagnosed with mesothelioma. Less than two months later, on July 4, 2015, Counter married the woman with whom he had lived for decades (Jennifer Ripple). On July 23, 2015, Counter filed his original personal injury complaint. Less than four months later, on November 1, 2015, Counter died from mesothelioma.
Ripple, as personal representative of Counter’s estate, amended the personal injury complaint, thereby replacing
Counter’s common law personal injury claims with the estate’s wrongful death claims for damages under Florida’s Wrongful Death Act. The estate sought damages for Ripple under section 768.21(2), which provides that “[t]he surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.”
Defendants moved for judgment on the pleadings as to both Ripple’s damages claim and the adult children’s alternative damages claim. Defendants argued that Ripple could not recover damages under section 768.21(2) because she was not married to Counter at the time of his alleged asbestos exposure. Defendants based their argument on Florida’s common law rule that “a party must have been legally married to the injured person at the time of the injury in order to assert a claim for loss of consortium.” Defendants further argued that Counter’s adult children could not recover under section 768.21(3) because Ripple qualified as a “surviving spouse” under that subsection.
The trial court granted Defendants’ motion for judgment on the pleadings as to Ripple’s damages claim but denied the motion as to the adult children’s claim. Subsequently, the trial court granted Defendants’ motion for summary
judgment as to the adult children’s claim, concluding that “as there is a surviving spouse, albeit a spouse who is herself barred from recovery pursuant to Kelly, an adult child is barred from recovery pursuant to the plain language of section 768.21(3) of the Wrongful Death Act.”
The Supreme Court of Florida stated in its Per Curiam opinion dated May 9, 2024: “we must determine whether a spouse who married the decedent after the onset of the injury that caused the decedent’s death is a “surviving spouse” under section 768.21(2) of the Act. We hold that such a spouse is a “surviving spouse” under that provision. And, as we explain later, we further hold that the common law “marriage before injury” rule does not bar recovery under 768.21(2) by a surviving spouse who married the decedent after the date of injury,” concluding that “a “surviving spouse” under section 768.21(2) is a spouse at the time of the decedent’s death because the ordinary meaning of “surviving spouse” is a spouse who outlives the other spouse … survivorship under section 768.21(2) is determined at the time of the decedent’s death, which is the time when the spouse outlives the decedent. A spouse who outlives the decedent is a “surviving spouse” under section 768.21(2) who may recover damages under that provision.”
The Supreme Court of Florida further explained: “we do not think that the common law “marriage before injury” rule bars Ripple from recovering damages under section 768.21(2) … under the Act, the surviving spouse does not pursue a
distinct cause of action based on loss of consortium. Instead, the Act contemplates a standalone wrongful death claim in which, under section 768.21(2), the surviving spouse may recover damages “for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” It is not clear that the “marriage before injury” rule, a common law defense to a cause of action based on loss of consortium, can also serve to eliminate an element of statutory damages.”
“We acknowledge Respondents’ argument that our failure to recognize a “marriage before injury” defense in these circumstances creates a partial anomaly. Because Ripple was not married to the decedent at the time of injury, she could not have pursued a common law action for loss of consortium if the decedent had survived the injury. Yet, because of the decedent’s death from that same injury, part of Ripple’s recovery under section 768.21(2) might include damages for “loss of the decedent’s companionship and protection” from the date of injury—including, arguably, the same damages that would have been unavailable to Ripple if the decedent had survived. We think it is up to the Legislature, not the courts, to decide whether this is a problem that needs fixing and, if so, how.”
Nonetheless, “we note that as the finder of fact, a jury may, in considering the evidence, determine whether a spouse’s conduct amounts to an attempt to marry into a section 768.21(2) claim. Nothing in our decision today prevents juries from considering the timing and duration of a couple’s marriage when evaluating a claim for damages under section 768.21(2). Our legal system entrusts the jury with evaluating the evidence to determine a proper award under section 768.21(2).”
The Supreme Court of Florida concluded: “We therefore hold that Ripple is a “surviving spouse” under section 768.21(2). As explained above, a “surviving spouse” is a spouse who outlives the other spouse. Here, Ripple legally married Counter on July 4, 2015, and Counter died on November 1, 2015. Ripple was Counter’s spouse at the time of his death. Because she outlived her husband, Ripple is a “surviving spouse” under section 768.21(2) as a matter of law. Moreover, we further hold that the “marriage before injury” rule does not bar Ripple’s recovery of damages under section 768.21(2).”
Source Ripple v. CBS Corporation, No. SC2022-0597.
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