Florida/Georgia Personal Injury & Workers Compensation

...1979);2 and claims brought pursuant to the ∗ Hon. Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation. 1 In addition to spouses, Florida law authorizes a loss of consortium claim by dependent, unmarried children. See Fla. Stat. § 768.0415....

...y accomplish the task. [4] If the judiciary allocates a risk in a manner that is contrary to the view of a majority of citizens, the legislature normally has the power to adjust the allocation. Compare Zorzos v. Rosen, 467 So.2d 305 (Fla. 1985) with § 768.0415, Fla....

...of the injured party and that of his or her spouse) or between a claim against a party primarily liable and a claim against a party liable only vicariously {e.g., claims against a party actively negligent and against his employer) or claims under F.S. 768.0415....

...This is particularly true considering the limited damages generally recoverable for the loss of ordinary services rendered by a child under present day standards. Our legislature has recognized that recovery for loss of companionship is necessary to compensate the minor child of a permanently injured parent. § 768.0415, Fla....

...ed child's companionship. Art. I, §§ 2, 21, Fla. Const. However, we believe that recovery for loss of filial consortium should be limited in the same manner in which recovery for the loss of parental consortium has been limited by the legislature. Section 768.0415 limits a child's recovery for the loss of a parent's services, comfort, companionship, and society to those losses caused by a significant injury "resulting in a permanent total disability." § 768.0415. Because the right of recovery we recognize here provides redress for injury to the parent-child relationship, the same relationship addressed by the legislature in section 768.0415, we see no reason why the same standard for recovery should not apply in this context....

...Although this omission may be only an oversight, it strongly suggests that the legislature has deliberately chosen not to create such cause of action. 467 So.2d at 307. Subsequently, the legislature did recognize the claim for loss of parental companionship by the enactment of section 768.0415, Florida Statutes (Supp....

...ting in permanent total disability, your verdict should be for (defendant(s)) on this element of damage. NOTES ON USE FOR 501.2g 1. If issues arise as to the child's marital status, parentage, or dependency, this instruction should be modified. 2. F.S. 768.0415 does not define "significant permanent injury," "dependent" or "permanent total disability." Therefore, the instructions do not attempt to define the terms. 3. F.S. 768.0415 refers only to "negligence." The committee takes no position as to whether the statute is limited to negligence cases or the definition of "negligence" in this statutory context....

...of the injured party and that of his or her spouse) or between a claim against a party primarily liable and a claim against a party liable only vicariously ( e.g., claims against a party actively negligent and against his employer) or claims under F.S. 768.0415....

...Howard has had surgery that he maintains is related to these accidents. Mr. Howard amended his complaint to include claims on behalf of his children, alleging that Mr. Howard's significant permanent injuries resulted in a permanent total disability for which the children are entitled to a monetary recovery. See § 768.0415, Fla....

...[5] Neither parent, however, could recover for loss of consortium resulting from the wrongful injury of a child. [6] A child too could not recover for loss of consortium arising from the wrongful injury of a parent. [7] Several years after this Court upheld the rule against recovery by a child, [8] the Legislature enacted section 768.0415, Florida Statutes (Supp.1988). Section 768.0415 provides that an "unmarried dependent" may recover for loss of parental consortium arising from the wrongful injury of a parent. Unlike the wrongful death statute, which uses the term "minor," the wrongful injury statute requires only that the dependent be an unmarried son or daughter of the parent (and that the injury result in permanent total disability): 768.0415 Liability for injury to parent.—A person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, *219 comfort, companionship, and society. This section shall apply to acts of negligence occurring on or after October 1, 1988. § 768.0415, Fla....

...Dempsey, 635 So.2d 961 (Fla.1994), addressed recovery by a parent and held that under the Equal Protection Clause a parent has a right of recovery that is comparable to that of a child [9] and that the same standard of recovery that applies to a child under section 768.0415 also applies to a parent....

...As explained above, at common law neither a child nor a parent could recover any damages for loss of consortium arising from the wrongful injury of a parent or child, regardless of the age of the child. The common law in this area has been supplanted by both section 768.0415 and Dempsey and neither of these authorities places any age-based restrictions on recovery....

...[11] All natural persons—including dependent adults—are equal before the law. [12] *220 III. CONCLUSION As a rule, policy-based issues such as the present fall within the purview of the Legislature. Had the Legislature not already acted in this area by promulgating section 768.0415 prior to the decision in Dempsey, I would have been chary of departing from the common law in that case....

...person whose loved one is permanently and totally disabled, I am willing to concur in this decision. Dempsey, 635 So.2d at 967 (Grimes, J., concurring in result only). In light of the fact that the Legislature has acted in this area by promulgating section 768.0415 and has placed no age-based restrictions on recovery by an unmarried dependent, I would reaffirm this Court's holding in Dempsey that the same right of recovery must be accorded to the parent of an unmarried dependent where the dependent has been permanently and totally disabled. Just as the age of the dependent is a nonissue under section 768.0415, so too is it a nonissue under the Dempsey rationale....

...recovery for the loss of parental consortium has been limited by the legislature.... Because the right of recovery we recognize here provides redress for injury to the parent-child relationship, the same relationship addressed by the legislature in section 768.0415, we see no reason why the same standard for recovery should not apply in this context....

...The penultimate paragraph of the release reads, “To procure payment of the consideration referred to herein, I do hereby declare and represent that I have no qualifying disability and qualifying dependents) which would enable a claim to be made by or on behalf of any unmarried dependent, as defined by section 768.0415, Florida Statutes (2007).” (Emphasis added.) Section 768.0415 allows unmarried dependent children to bring loss of consortium claims based in negligence. See Zonzos v. Rosen, 467 So.2d 305, 308 (Fla. 1985) (explaining that children in Florida have no common law right to bring a loss of consortium claim). In pertinent part, section 768.0415 reads, “A person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society.” Allstate’s waiver for loss of consortium claims, when read together with section 768.0415, is ambiguous because it would amount to an outright falsehood. Pursuant to the statutory language, the term “quali *1019 fying dependent(s)” as used in the waiver means an unmarried dependent child, either natural or adopted. § 768.0415....

...possible for the defendant to meet the conditions in the proposal. Here, it would have been impossible for Diecidue to comply with the loss-of-consortium waiver because Diecidue could not honestly represent that he had no qualifying dependents under section 768.0415....

...On remand, the trial court shall reinstate the jury’s verdict and *948 enter a final judgment in accordance with it. Reversed and remanded with directions. WHATLEY and CRENSHAW, JJ., Concur. . Mr. Moore's appellate counsel did not represent him in the trial court. . Mr. Gillett continued to pursue a claim under section 768.0415, Florida Statutes (1999), for the loss of parental consortium on behalf of one of their minor children....

...ve purpose of the presuit process would be undermined. Claims by Arturo and Stephanie require independent liability and damage assessments by the defendants which are different from those of Maria. For example, Stephanie would claim as a minor under section 768.0415....

...ed on her claim. Stephanie, the daughter, could not prevail on her claims unless Maria's injuries were permanent. There is no rule that all spouses and children of injured persons automatically qualify for a loss of consortium award or damages under 768.0415....

...Four judges have now considered this case: the trial judge, and three appellate judges. The decisions so far are two to two. Unfortunately for the appellees, the two whose opinion will determine the outcome agree with the appellant. NOTES [1] The child's claim is based on section 768.0415, Florida Statutes, which establishes a cause of action on behalf of the child to recover damages for permanent loss of services, comfort, companionship, and society from a person who causes significant permanent injury to the child's natural parent....

...or skill.") (citation omitted). Stackhouse v. Emerson, 611 So.2d 1365, 1366 (Fla. 5th DCA 1993) (reiterating that a claim for medical malpractice must be based on "a consensual or otherwise legitimate health care provider/patient relationship"). [1] 768.0415....

...The injured mother sued all three parties, alleging that the driver was negligent and that the owners were vicariously liable under the dangerous instrumentality doctrine. The complaint included two counts that sought derivative damages for the minor children, based on section 768.0415, Florida Statutes (1989). Section 768.0415 provides that A person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in permanent total disability shall be liable to the dependent for damages, inc...

...iples of the common law, and when possible, they should be so construed as to make them harmonize with existing law and not conflict with long settled principles." Vanner v. Goldshein, 216 So.2d 759, 760 (Fla. 3d DCA 1968). Accordingly, we hold that section 768.0415 provides the minor children with a cause of action for derivative damages against both the driver, who is alleged to be the active tortfeasor, and the owners, whose potential liability arises under the dangerous instrumentality doctrine....

...3d DCA 1991), quashed in part, approved in part, 620 So.2d 987 (Fla.1993); see contra Philon v. Reid, 602 So.2d 648 (Fla. 2d DCA 1992), review granted, 614 So.2d 503 (Fla. 1993); case dismissed, 620 So.2d 762 (Fla. 1993). e. Unmarried dependent's claim under Fla. Stat. § 768.0415: If you find for the (defendant)(s), you will not consider the claim of (unmarried dependent)....

...You shall consider the following elements of damage: NOTE ON USE ON 6.1e This instruction is intended for use with instruction 6.2f. If issues arise as to the child's marital status, parentage or dependency, this instruction should be modified. Comments on 6.1e 1. Fla. Stat. § 768.0415 does not define "significant permanent injury," "dependent" or "permanent total disability." Therefore, the instructions do not attempt to define the terms. 2. Fla. Stat. § 768.0415 refers only to "negligence." The committee takes no position as to whether the statute is limited to negligence cases or the definition of "negligence" in this statutory context....

...A loss of filial consortium claim may require separate interrogatories on the verdict form on the issues of whether the child sustained a significant injury resulting in permanent total disability, and the amount of damages on such a claim. h. f. Unmarried dependent's damages under Fla. Stat. § 768.0415: (Formerly 6.2h) Any loss by reason of (claimant parent's) injury of (claimant parent's) services, comfort, companionship and society in the past and in the future....

...rmanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society. § 768.0415, Fla....

...child) and Whitefield v. Kainer, 369 So.2d 684 (Fla. 4th DCA 1979) (a posthumous illegitimate child is not a "survivor" under the wrongful death act unless the father has recognized responsibility for the child's support). Id. at 828-29. Similarly, section 768.0415 is remedial in nature, providing a remedy for a wrong that causes injury to a child born alive through the loss of his mother's companionship and parental guidance....

...The well-established law supports Braden's claim that he is entitled to seek compensation for his injury and damage as the result of the injuries to his mother. Consistent with precedent, we hold that a *721 child born alive is entitled to claim loss of consortium damages under section 768.0415 for permanent injuries sustained by his or her parent that result in a permanent total disability as prescribed by statute, notwithstanding that the child was only a fetus at the time of injury to the parent....

...Brian concedes this point. Therefore, we reverse and remand Brian's award for loss of filial consortium for remittitur to Braden's years of minority, or a new trial. Braden's claim for loss of his mother's consortium, however, is not common law, making Cruz inapplicable. Section 768.0415 speaks only to who may bring the claim, not to the extent of damages. The statute specifically includes "damages for permanent loss of services, comfort, companionship, and society." § 768.0415 (emphasis added)....

...Therefore, we find that Honeywell satisfied Fabre, and was entitled to have the non-parties listed on the verdict form for apportionment purposes. The third issue involves a question of statutory interpretation of a child’s right to parental consortium pursuant to section 768.0415, Florida Statutes (2006). Section 768.0415 provides that: a person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society. This section shall apply to acts of negligence occurring on or after October 1, 1988. Since section 768.0415 allows for a cause of action against a person only for “acts of negligence occurring on or after” the statute’s effective date, we initially focus on the meaning of the term “acts of negligence” as used in the statute....

...’s Law Dictionary 28 (9th ed. 2009). Therefore, here, the relevant negligent act is Guilder’s last known exposure to asbestos. Further, based on our review of the statute’s legislative history, we find that the Legislature specifically limited section 768.0415’s application to negligent acts occurring on or after October 1,1988....

...The Florida Supreme Court Committee on Standard Jury Instructions in Civil Cases (the Committee) recommends that The Florida Bar be authorized to publish the addition to the Florida Standard Jury Instructions (Civil) of instructions 6.1(e), “Unmarried dependent’s claim under Fla. Stat. § 768.0415 ,” and 6.2(h) “Unmarried dependent’s damages under Fla....

...al correctness. The revised instructions will be effective on the date this opinion is filed. It is so ordered. HARDING, C.J., and SHAW, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. APPENDIX 6.1 e. Unmarried dependent’s claim under Fla. Stat. § 768.0415 : If you find for the (defendant)(s), you will not consider the claim of (unmarried dependent)....

...r] by the incident in question. You shall consider the following elements of damage: NOTE ON USE ON 6.1e If issues arise as to the child’s marital status, parentage or dependency, this instruction should be modified. Comments on 6.1e 1. Fla. Stat. § 768.0415 does not define “significant permanent injury,” “dependent” or “permanent total disability.” Therefore, the instructions do not attempt to define the terms. 2. Fla. Stat. § 768.0415 refers only to “negligence.” The committee takes no position as to whether the statute is limited to negligence cases or the definition of “negligence” in this statutory context. For example, see Fla. Stat. § 768.81 (4)(a), defining “negligence cases.” 6.2 h. Unmarried dependent’s damages under Fla. Stat. § 768.0415 : Any loss by reason of (claimant parent’s) injury of (claimant parent’s) services, comfort, companionship and society in the past and in the future....

...njured party and that of his or her spouse) or between a claim against a party primarily liable and a claim against a party liable only vicariously (e.g., claims against a party actively negligent and against his employer) or claims under Fla. Stat. § 768.0415 .

...rivative claims should be brought separately as required by section 627.7403, Florida Statutes (1991). Contrary to the finding of the trial court, the joinder requirement for derivative claims in that statute was not negated by the 1988 enactment of section 768.0415 allowing recovery by dependent children for injuries to a parent....