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Florida Fourth DCA rules that Florida Wrongful Death Act did not permit a same sex spouse to make consortium claim for injuries the decedent spouse suffered prior to marriage, rejecting argument that given previous unconstitutional ban of same sex marriages, marital status should relate back to time of injury

On May 11, 2022, in Philip Morris USA, Inc., et al. v. Rintoul, No. 4D20-1963, the Florida Fourth DCA ruled in an Engle-progeny tobacco case that the same sex spouse of the deceased smoker was not entitled to make a loss of marital consortium claim because their marriage occurred after the first manifestation of the smoking related illness, which is the key date in determining Engle-class membership. See Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1276 (Fla. 2006). The Fourth DCA cited Kelly v. Georgia-Pacific, LLC, 211 So. 3d 340 (Fla. 4th DCA 2017), and Tremblay v. Carter, 390 So. 2d 816 (Fla. 2d DCA 1980),for the principle that a spouse assumes the risk of premarital injuries upon marriage. The plaintiff argued that although same sex marriages were not recognized in Florida at the time that the illness manifested, the subsequent U.S. Supreme Court decision in Obergefell v. Hodges, 576 U.S. 644 (2015), which in effect compelled states to recognize same sex marriages, operated retroactively to qualify the surviving spouse to make a consortium claim. The Fourth DCA disagreed, noting that the cases cited by the plaintiff from other states providing retroactive recognition of same-sex marriages all involved common law marriages, and were inapplicable to this case because the State of Florida does not recognize common law marriages.

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