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Florida Fourth DCA rules that since surviving spouse in wrongful death case was barred from recovering mental pain and suffering damages because she married decedent after the incident that caused his death, surviving adult children were statutorily entitled to recover damages

On March 30, 2022, in Ripple v. CBS Corporation, et al., No. 4d20-1939, the Florida Fourth DCA affirmed, in part and per curiam, the trial court’s judgment for the defendants in a wrongful death case which was based on the trial court’s determination that the surviving spouse of the decedent was barred from recovering damages for loss of the decedent’s companionship and protection and for mental pain and suffering” under section 768.21(2) of the Wrongful Death Act. The Fourth DCA concluded that this result was compelled by the Court precedent, Kelly v. Georgia-Pacific, LLC, 211 So. 3d 340 (Fla. 4th DCA 2017), in which the Court held that such damages were not recoverable by a spouse who married the decedent after the occurrence of the injury that caused the decedent’s subsequent death. The Court certified conflict on this issue with the Fifth DCA in Kelly and Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018). However, the Fourth DCA reversed the trial court’s decision rejecting the plaintiff estate’s alternative argument that if the surviving spouse could not claim such damages, the decedent’s adult surviving children should be able to recover “for lost parental companionship, instruction, and guidance and for mental pain and suffering” under section 768.21(3) of the Wrongful Death Act. The Fourth DCA concluded that there was an “irreconcilable contradiction” in the argument that the decedent’s wife was not his “surviving spouse” under section 768.21(2) of the Act, but that the decedent’s wife was his “surviving spouse” under section 768.21(3) of the Act, thus precluding the decedent’s adult children from recovering damages under section 768.21(3) of the Act.

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