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Florida Fourth DCA rules that spouse must be married to the decedent before the date of injury to recover damages for loss of consortium under Wrongful Death Act

On February 22, 2017, in Kelly v. Georgia Pacific, No. 4D15-4666, the Florida Fourth District Court of Appeal ruled that the Florida Wrongful Death Act., Fla. Stat 768.16 et seq., does not supersede the common law requirement that a spouse must be married to the decedent before the date of the decedent’s injury to recover damages for loss of consortium. The Court, quoting Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 918 (Fla. 1990), held that whether the legislature intended for the Wrongful Death Act to supersede the common law of loss of consortium “depends upon the legislative intent as manifested in the language of the statute.” “The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard.” Id. Thus, “[u]nless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.” Id.

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