Choose a Topic

View Our Case Results
Kelley/Uustal Practice Areas

Margaret Randall v. Walt Disney World Co., et al., Case No. 5D12-4353 (5th DCA)

In Randall, the plaintiff in the underlying suit appealed a trial court order dismissing the plaintiff’s late husband’s claim against Walt Disney World Co. and dismissing with prejudice her loss of consortium claim. On appeal, the Fifth DCA addressed whether a surviving spouse’s loss-of-consortium claim can survive the death of the deceased spouse.

In 2006, the plaintiff and her husband visited a Walt Disney theme park, where the plaintiff’s husband was injured. The plaintiff and her husband later filed a personal injury suit against Walt Disney World Co. While suit was pending, the plaintiff’s husband passed away. The plaintiff filed a suggestion of death, but failed to move under Rule 1.260 to substitute herself as personal representative within ninety days after filing the suggestion of death to maintain her husband’s personal injury action. The trial court then dismissed the personal injury action and the loss-of-consortium claim.

The Fifth DCA noted that it in Taylor v. Orlando Clinic, 555 So. 2d 876 (Fla. 5th DCA 1989), it held that “[t]he wife’s cause of action for loss-of-consortium, while derived from the personal injury to the husband, survives the death of her husband-patient, whose own personal injury action did not survive his death.” The Third DCA certified conflict with Taylor in ACandS, Inc. v. Redd, 703 So. 2d 492 (Fla. 3d DCA 1997). Last year, though, the Florida Supreme Court entered an opinion in Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013), in which the Court disapproved Taylor to the extent it was inconsistent with Capone.

The Fifth DCA began by reconciling Capone with Taylor. In Capone, the Florida Supreme Court held that the Florida’s Wrongful Death Act does not require dismissal of a pending personal injury action after a party plaintiff’s death. Rather, the Act requires that the pending case be suspended until the estate’s personal representative was added as a party and given the opportunity to amend the complaint. The Capone Court then noted that it disapproved Taylor to the extent it was inconsistent with the opinion. In Taylor, the Fifth DCA made two rulings: (1) affirming the order dismissing the deceased husband’s abated personal injury claim; and (2) reversing the order dismissing the wife’s loss-of-consortium claim and separately filed wrongful death action. The Fifth DCA stated that, importantly, the Florida Supreme Court neither addressed whether a loss-of-consortium claim survives death nor mentioned the conflict between the Third and Fifth Districts.

As such, the Fifth DCA found that Capone disapproved Taylor on grounds unrelated to whether the wife’s loss-of-consortium claim survives the death of the personal injury husband. Therefore, in the Fifth District, Taylor remains good precedent, and a surviving spouse’s loss-of-consortium claim survives the death of the injured spouse.

The Fifth DCA then re-addressed its conflict with the Third District. The Fifth DCA reiterated its prior rationale, that “Florida case law recognizes that loss-of-consortium is a separate cause of action belonging to the spouse of the injured married partner, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium.” The Fifth DCA therefore reaffirmed its ruling in Taylor that a loss-of-consortium claim survives the death of a deceased spouse.

Recognized as One of the Nation's Best Law Firms

Don't just take our word for it. See it for yourself.

Client Reviews & Testimonials
  • AV Peer Review Rated
  • Florida Super Lawyers
  • South Florida Top Rated Lawyers
  • Best Law Firms
  • The Best Lawyers in America
  • The National Trial Lawyers - Top 100 Trial Lawyers
  • South Florida Business Journal - 2017  Best Places to Work
  • Sun Sentinel - 2017 Top Work Places
© 2014 All Rights Reserved The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.