Florida/Georgia Personal Injury & Workers Compensation

...vive the decedent's demise). Damages are limited to the survivor's loss of support and services, companionship, and his or her own pain and suffering. The estate may also recover loss of earnings of the deceased and medical and funeral expenses. See § 768.21, Fla....

...satory character of wrongful death actions has been diluted significantly as the states have begun to permit recovery for non-economic aspects of wrongful death, such as loss of companionship and survivors’ mental anguish. See, e.g., Fla.Stat.Ann. § 768.21 (West 1986)....

...We have for review Meeks v. Florida Power & Light Co., 816 So.2d 1125 (Fla. *288 5th DCA 2002), in which the Fifth District Court of Appeal certified the following question as one of great public importance: ARE THE DAMAGES RECOVERABLE BY A MINOR CHILD PURSUANT TO SECTION 768.21(3), FLORIDA STATUTES, LIMITED TO THE PERIOD OF MINORITY? Id....

...We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution. For the reasons stated below, we answer the certified question in the negative. We approve the district court's decision that the damages recoverable by a minor child under section 768.21(3), Florida Statutes (2002), should be calculated based on the joint life expectancies of the minor child and the deceased parent....

...er and a twenty-four-year-old son. Where a decedent has a surviving spouse, Florida's wrongful death statute permits a minor child, but not an adult child, to recover damages for loss of parental companionship and for mental pain and suffering. *289 § 768.21(3), Fla....

...(2002). The statute defines a minor as a person under twenty-five years of age. Id. § 768.18(2). Meeks' survivors filed suit against both FP & L and BellSouth. FP & L settled for $1,300,000. The trial court dismissed the claim of Meeks' daughter for section 768.21(3) damages, [1] because an adult child may not recover these damages under the statute....

...BellSouth filed a motion for summary judgment, arguing the two issues it continues to argue on review in this Court. First, BellSouth argued that FP & L was solely responsible for maintaining and inspecting the pole, so that BellSouth owed no duty of care to Meeks. Second, Bell-South argued that any damages awarded under section 768.21(3) to Kevin Meeks should be calculated only for the time until Kevin reached twenty-five, the statutory age of majority....

...eath were not limited to the period of minority, but should be calculated based on the joint life expectancies of the minor child and the deceased parent. Id. at 1133. The district court certified the question of the correct measure of damages under section 768.21(3) as a question of great public importance....

...City of Gainesville, 768 So.2d 432, 435 (Fla.2000). If the statutory language is unclear, we apply rules of statutory construction and explore legislative history to determine legislative intent. Id.; Weber v. Dobbins, 616 So.2d 956, 958 (Fla.1993). 2. Controlling Statute Section 768.21, Florida Statutes (2002), describes the damages recoverable in a wrongful death action, including the following: (1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to her or his...

...y also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.... (4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. § 768.21, Fla. Stat. (2002). The dispute in this case centers on the measure of damages recoverable by a minor child under section 768.21(3). Section 768.21(3) provides no express guidance regarding the length of time for which a minor child may recover damages....

...Therefore, if there is a surviving spouse, BellSouth argues that a child's recovery must be cut off when the child is no longer a minor. We agree with the district court that this is not a proper interpretation of the measure of damages to be awarded a minor child under section 768.21(3). Contrary to BellSouth's interpretation, Meeks argues that section 768.21(3) does not limit a minor child's damages to the period of minority....

...he survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed. § 768.17, Fla. Stat. (2002) (emphasis added). With this rule of liberal construction in mind, we examine the specific provisions of section 768.21(3)....

...; Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (stating that, "[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another"). Section 768.21 contains four parallel provisions awarding wrongful death damages to survivors. To determine the appropriate measure of damages under section 768.21(3), we look to the *291 three surrounding subsections. We conclude that harmony among all of these provisions is achieved by permitting a minor child to recover damages under subsection (3) based on the joint life expectancies of the child and deceased parent. a. Section 768.21(1) A generally accepted canon of construction provides that when the legislature includes a provision in one section of a statute but excludes it in another, courts will deem the difference intentional and will assign meaning to the omission. INS v. Cardoza-Fonseca, 480 U.S. 421, 432, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). In Florida's wrongful death statute, the Legislature provided in section 768.21(1) for a discretionary limitation of a minor's damages in light of the period of minority, but excluded this discretionary limitation from section 768.21(3). Section 768.21(1) gives minor children damages for lost parental support and services....

...[2] Subsection (1) provides that a minor child's recovery may be limited to the period of minority, in the factfinder's discretion. See id. (stating that the period of minority is a factor that "may be considered" in computing the duration of future losses). Section 768.21(3) gives minor children damages for lost parental companionship and for mental pain and suffering. In contrast to subsection (1), subsection (3) contains no limitation of damages in light of the period of minority. If the Legislature had intended a minor's damages under section 768.21(3) to be limited to the period of minority, this limitation could have been expressly added to subsection (3), either as an absolute limitation or as a discretionary factor as provided in subsection (1). Instead, the Legislature excluded the limitation from subsection (3). This indicates that the Legislature did not intend a minor child's damages under section 768.21(3) to be limited to the period of minority. b. Section 768.21(2) A second parallel provision to section 768.21(3) is section 768.21(2), which grants a surviving spouse damages for the loss of the decedent's companionship and for the surviving spouse's pain and suffering. § 768.21(2), Fla. Stat. (2002). As noted by the district court below, the measure of damages under this section is not limited to any time period. When the damages provisions of section 768.21 were first enacted in 1972, subsection (3) precisely mirrored subsection (2), giving minor children the same damages as a surviving spouse....

...However, the amendment limited an adult child's damages under subsection (3) only to cases where there is no surviving spouse. BellSouth argues that this amendment should also apply to limit a minor child's damages if there is a surviving spouse. We disagree. We find nothing in the language of section 768.21(3) or in the legislative history of the 1990 amendment to indicate that the Legislature intended the existence of a surviving spouse to affect the preexisting recovery rights of minor children. c. Section 768.21 (4) Section 768.21(4), the final parallel provision to section 768.21(3), gives damages to parents for their pain and suffering based on the death of a minor child. Like the district court below, we are persuaded by the reasoning of the Second District Court of Appeal in calculating the appropriate measure of damages for bereaved *292 parents under section 768.21(4)....

...ormal life expectancy. This is, in fact, the measure of damages indicated by the district court below. In summary, our review of the four parallel subsections granting wrongful death damages to survivors indicates that a minor child's recovery under section 768.21(3) should be measured by the joint life expectancy of the child and the deceased parent....

...hree subsections awarding damages to survivors for lost companionship and for pain and suffering. 5. Standard Jury Instruction Finally, we note that the interpretation we affirm today comports with the accepted judicial construction of damages under section 768.21(3), as reflected by the standard jury instructions published by this Court. Standard jury instructions are not binding precedent; however, the instructions are published under this Court's authority and are presumed to be correct. Freeman v. State, 761 So.2d 1055, 1071 (Fla.2000). The standard jury instruction for section 768.21(3) indicates that damages are to be based on the life expectancies of the minor child and deceased parent....

...the prevailing judicial understanding regarding a surviving minor child's damages in a wrongful death action. In the present case, we find no persuasive reason to depart from this understanding of the Legislature's intended measure of damages under section 768.21(3). *293 We therefore hold that the damages recoverable by a minor child under section 768.21(3) are not limited to the period of minority, but should be calculated based on the joint life expectancies of the minor child and the deceased parent....

...It is so ordered. WELLS, PARIENTE, LEWIS and QUINCE, JJ., concur. ANSTEAD, C.J., concurs specially with an opinion. CANTERO, J., recused. ANSTEAD, C.J., specially concurring. While I concur in the majority's determination that a minor child's recovery of section 768.21(3) damages are not limited to the period of minority, I write briefly only to note that neither the statutory language nor the legislative history adequately answers all of the troubling questions raised by this case....

...When all is said and done, however, we are still left with a result that allows one adult child to recover for lifetime pain and suffering for the loss of a parent, while another adult child only a few years older is entitled to no recovery at all. NOTES [1] Section 768.21(3) gives damages for lost parental companionship and mental pain and suffering based on the wrongful death of a parent. A parallel provision, section 768.21(1), gives damages for lost support and services due to a parent's death. Dependent adult children may recover these damages. Section 768.21(1) damages are not at issue in this appeal. [2] Section 768.21(1) gives these damages to "survivors." Survivors include minor children....

...68.01. Section 768.20, which is substantially different from the predecessor statute, establishes who may bring the action and the manner in which it is brought. This provision is set forth and analyzed in a subsequent part of this opinion. Finally, Section 768.21, here set forth in full, specifies the items of damage recoverable under the new Act: "768.21 Damages....

..."(c) Evidence of remarriage of the decedent's spouse is admissible. "(7) All awards for the decedent's estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims." In summary, the items of damage recoverable under new Section 768.21 allow each specified survivor to recover for (1) loss of past and future support and services; (2) loss of companionship and protection; and (3) his or her own mental pain and suffering from the date of the injury....

...Constitutionality of the New Wrongful Death Act; Pain and Suffering Damages The title of the new Wrongful Death Act, Chapter 72-35, Laws of Florida 1972, is as follows: " An Act relating to wrongful death action; amending chapter 768, Florida Statutes, by adding sections 768.16, ... 768.20, 768.21 ...; providing for a right of action on behalf of the survivors and the estate by the personal representative of a decedent whose death is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person; repeal...

...Recognizing the rule that punitive damages are recoverable only where actual damages are shown, McLain v. Pensacola Coach Corporation, 152 Fla. 876, 13 So.2d 221 (1943), we hold that punitive damages may be claimed when one or more of the elements of compensatory damages recoverable under Section 768.21 of the new Wrongful Death Act are established....

...stinguishable from this case, as Blalock involved a thumb injury to a child on a Disney World ride, not a wrongful death suit where the loss of companionship of the husband and father was relevant in establishing damages to the claimants. See, e.g., § 768.21, Fla....

...smokers, wrongful death claims filed by “survivors” of smokers who were still living, cases filed as a result of “clerical errors,” multiple cases filed for the same filed by the personal representative of the decedent’s estate. See Fla. Stat. § 768.21; Capone v. Philip Morris USA, Inc., 116 So....

...A wrongful death claim focuses on the loss suffered by the survivors or the estate, not the decedent—allowing recovery for, e.g., the survivors’ loss of support services and loss of consortium, survivors’ pain and suffering, and medical bills or funeral expenses borne by survivors or the estate. See Fla. Stat. § 768.21; Martin, 314 So....

...Medical Malpractice Act or the Wrongful Death Act. St. Mary's, Franzen, and the Florida Defense Lawyers Association argue that when medical negligence results in death, rather than personal injury, the elements of damages recoverable are limited by section 768.21, Florida Statutes (1995), of the Wrongful Death Act....

...mages provision is replicated under section 766.209, which applies when a claimant rejects an offer to arbitrate. Unlike the Medical Malpractice Act, the Wrongful Death Act does not provide claimants with such a full range of economic damages. Under section 768.21(1) of the Wrongful Death Act, each survivor may recover the value of lost support and services from the date of the decedent's injury, and under section 768.21(6), the estate may recover the decedent's loss of earnings, loss of prospective net accumulations, and medical and funeral expenses....

...is death, with interest, and future loss of support and services from the date of death reduced to present value," and damages "for lost parental companionship, instruction and guidance and for mental pain and suffering from the date of the injury." Section 768.21(2)(3) (emphasis supplied)....

...It is a principle whose time has long since arrived. For these reasons, I dissent. ADKINS, J., concurs. NOTES [*] The cause of action, if adopted, would approximately parallel the children's right to damages for loss of consortium created by the Wrongful Death Act, section 768.21(3), Florida Statutes (1979)....

...1949); Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213, 220 (1945). This realization is exemplified by statutory provision, where damages recoverable by the beneficiaries are tailored solely to their losses and are unrelated to damages sustained by the decedent. § 768.21, Fla....

...In this instance, the two parties most likely to recover damages are the estate and parents of the decedent. A review of the Wrongful Death Act indicates that the decedent's parents may not maintain a cause of action for the wrongful death of their son. Section 768.21(4), Florida Statutes (1983) allows the parents of a minor child to recover damages for mental pain and suffering, but the victim in this case was not a minor child as defined in section 768.18(2), Florida Statutes (1983). Similarly, the decedent's parents are precluded from recovering damages for lost support and services pursuant to section 768.21(1), Florida Statutes (1983), because they were not wholly or partly dependent upon their son for support and services....

...left as part of his estate if he had lived his normal life expectancy. § 768.18(5), Fla. Stat. (1983). First, the estate of a decedent may recover loss of prospective net accumulations if the decedent is survived by a spouse or lineal descendants. § 768.21(6)(a)1, Fla....

...Second, the estate of an adult decedent may recover loss of prospective net accumulations if the decedent was survived by a distant blood relative who was not dependent upon the decedent for support and services or if the decedent was not survived by spouse, minor children or parents. § 768.21(6)(a)2, Fla....

...by parents who were not dependent upon him for support or services, and who are not otherwise entitled to recover damages for his death in their own right. We answer the question in the affirmative. The current dispute centers around the wording of section 768.21(6)(a)2, Florida Statutes (1983), which allows the estate of a decedent to recover net accumulations "if the decedent is not a minor child as defined in s....

...efined in section 768.18(2) at the time of death, he did have survivors as defined in section 768.18(1) because parents are included in the class of people defined as "survivors" under section *1049 768.18(1). Thus, under a strict literal reading of section 768.21(6)(a)2 as urged by appellees, Steven Allen Paul's estate would be precluded from recovering prospective net accumulations....

...We refuse to read the statute in such a manner. Legislative intent must be given effect even though it may contradict the strict letter of the statute. State v. Webb, 398 So.2d 820 (Fla. 1981). In order to correctly discern the intent of the legislature, it is necessary to trace the history of section 768.21(6)(a), Florida Statutes (1983). Prior to 1981, section 768.21(6)(a) provided that an estate could recover net accumulations only if the decedent's survivors included a surviving spouse or lineal descendants. In 1981, the legislature amended section 768.21(6)(a) to also allow the estate of a decedent to recover net accumulations: If the decedent is not a minor child as defined in s....

...Although not controlling in this case, we take this opportunity to note that the legislature has since removed any potential questions regarding its intent to allow the estate of an adult decedent who is survived only by non-dependent parents to recover prospective net accumulations by amending section 768.21(6)(a) to provide that the estate of a decedent may recover net accumulations: 2. If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under *1050 subsection (1), and there is a surviving parent. Ch. 85-260, Laws of Fla. Appellees argue that we should construe section 768.21(6)(a)2, Florida Statutes (1983) in a strict and literal manner....

...1983), appeal dismissed, 446 U.S. 901, 104 S.Ct. 1673, 80 L.Ed.2d 149 (1984); Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla. 1981); Leeman v. State, 357 So.2d 703 (Fla. 1978). As noted previously, a strict literal interpretation of section 768.21(6)(a)2 would create an irrational classification in violation of the equal protection clause. Another reasonable construction of section 768.21(6)(a)2 exists....

...ion 768.18(1), the term "survivors" means those survivors who can invoke other available remedies authorized by the other provisions of the Wrongful Death Act. This construction is supported by reading section 768.18(1) in pari materia with sections 768.21(1) through (5). Every class of persons defined as "survivors" in section 768.18(1) is afforded a remedy for wrongful death somewhere in section 768.21(1) through (5)....

...suffering because the deceased was a minor child or parents who could recover because they were dependent upon the child for support or services. Thus, non-dependent parents of an adult child are not survivors under section 768.18, as referred to in 768.21(6)(a)2, because they are not entitled to recover under the other provisions of the Wrongful Death Act....

...[15] III Because, in contrast, the fundamental error doctrine does apply to the damages recovered by the boys' estates, we reverse those awards. As the jury was instructed, the estates were awarded damages for their "loss of net accumulations." Under the clear terms of Section 768.21(6)(a), Florida Statutes (1977), however, such losses are recoverable only when, as was not true in this case in which the boys were survived by their parents, the decedent leaves a spouse or lineal descendants....

...In conclusion, we find merit in appellant's contention that the trial court erred in admitting certain testimony relating to appellee's damage claims. The economic loss theory advanced by appellee's expert witness to determine the extent of the damages was not in conformity with the requirements of Section 768.21 of the Florida Wrongful Death Act....

...n accordance with its motion for a directed verdict in its favor. It filed a notice of appeal the next day, January 18. On February 2, 1979, the personal representative of Anthony's estate filed a separate wrongful death action against Variety under Section 768.21, Fla....

...16 This statute plainly requires that the United States be granted the setoff it requests. Both the United States and the state court defendants were sued for the same wrongful death. Both suits sought to recover those damages that the Florida legislature has authorized in Fla.Stat. Sec. 768.21 (1985)....

...lt of the wrongful death (pain and suffering, lost support or services, and lost companionship); and (2) compensation for injuries suffered by the decedent's estate as a result of the wrongful death (medical and funeral expenses). See Fla.Stat. Sec. 768.21 (1985)....

...full extent authorized under the Wrongful Death Act. In light of the record before us, we must assume that the state court settlement and the federal court judgment each independently comprehended every item of recovery enumerated in Fla.Stat. Sec. 768.21 (1985)....

...For example, in evaluating loss of support, "the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered." Fla.Stat. Sec. 768.21(1) (1985)....

...ost support and services, lost companionship, and pain and suffering. Additionally, the decedent's estate may recover lost earnings of the deceased from the date of injury to the date of death, as well as medical and funeral expenses. Fla.Stat. Sec. 768.21 (1985) 3 The majority contends that the decedent's administrative filing suffices because the wrongful death claim is based on the same injuries that gave rise to the personal injury claim....

...The action was brought solely on behalf of Devin, Alanna, and Samantha, Anderson's three minor children. Carrie did not bring a claim. The estate, on behalf of the children, sought compensation solely for "lost parental companionship, instruction, and guidance and for mental pain and suffering," pursuant to section 768.21(3)....

...to show that Carrie had married (or remarried if her Georgia common-law marriage to Anderson was valid) less than a year after Anderson's death, and that her present husband, Tim Davidson, had assumed a parental role with regard to Devin and Alanna. Section 768.21(6)(c) provides that "evidence of remarriage of the decedent's spouse is admissible" in a wrongful death action....

...ve hemorrhaging. Mrs. Angrand died as a result of the rupture. Roland Angrand, as personal representative of his deceased wife, brought a malpractice action for wrongful death against the Foxes and Dr. Key [1] in order to recover damages pursuant to section 768.21, Florida Statutes (1985), for himself as surviving spouse, the decedent's son, and the decedent's estate....

...Based on our review of the record, we conclude that the trial judge, acting properly within his discretion, could have concluded that Dr. Platt's testimony added nothing to the jurors' knowledge in this case. In a wrongful death action such as this, section 768.21 does not designate "grief" as a recoverable damage. Rather, a surviving spouse may recover for "loss of the decedent's companionship and protection and for mental pain and suffering." § 768.21(2), Fla. Stat. (1985). A minor child may recover for "lost parental companionship, instruction, and guidance and for mental pain and suffering." § 768.21(3), Fla....

...For the reasons expressed, we find that a new trial is proper in this cause. The decision of the district court is quashed with directions to remand for a new trial in accordance with this opinion. It is so ordered. *827 ADKINS, EHRLICH and SHAW, JJ., concur. ALDERMAN, C.J., and BOYD and McDONALD, JJ., dissent. NOTES [*] Section 768.21(5) and (6)(b), Florida Statutes (1981).

...gence. The Commonwealth of the Bahamas has enacted the "Fatal Accidents Act" and the "Survival of Action Act," which together permit recovery of damages similar to those available under Florida's Wrongful Death Act. See J.M. Bethell Dec., ¶¶ 6—8; § 768.21, Fla....

...dian could be set off against the jury verdict awarded to the estate would create a windfall. A windfall would exist because a portion of the damages awarded to the estate in a wrongful death action is contingent upon the survival of minor children, section 768.21(2), (3) and (6)(a)1, Florida Statutes (1985), and, the estate of the deceased may recover on behalf of surviving minor children for the pain and suffering of the surviving minor children. § 768.21(3)....

...Unlike the typical wrongful death case, damages sought by the parents are not the pecuniary loss sustained by their being deprived of contributions to them by their son. Rather it is a claim by his estate of the accumulations which the decedent would have generated had he continued to live. It comes about by § 768.21 of the Florida Wrongful Death Act 1 and the statutory definition of “net accumulations.” 2 *381 The jury returned a verdict of $1 million in favor of Ageloffs 3 estate....

...But all is set at naught by the Supreme Court’s decision in Crawford Fitting Company, et al. v. J.T. Gibbons, Inc., 479 U.S. 1080 , 107 S.Ct. 2494 , 96 L.Ed.2d 385 (1987). We reverse the allowance of these expert witness fees. AFFIRMED IN PART. REVERSED IN PART. AND QUESTIONS CERTIFIED. 1 . Section 768.21(6) provides: [t]he decedent’s personal representative may recover for the decedent’s estate the ......

...transfer. After weighing the above factors, the Court finds that the motion for transfer should be denied. II. MOTION TO DISMISS Defendant seeks to dismiss for failure to state a cause of action in that the complaint is brought under Florida Statute § 768.21....

...Silva, we think, at the very least, that reasonable persons could differ concerning the propriety of the trial court's ruling, and the trial court therefore did not abuse its broad discretion in excluding the impeachment evidence upon the collateral matter. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). [12] Under Section 768.21(6)(c), Florida Statutes (1983), "evidence of remarriage of the decedent's spouse is admissible." It has been held that this evidence is admissible "for the sole reason of allowing the truth to be known and to keep the court from having to participate in a fraud upon the jury" but not to mitigate damages....

...We further held that the title of the act provided sufficient constitutional notice to consolidate the survival and wrongful death actions into one action. In the instant case we have a different constitutional contention. It is here asserted that the new wrongful death act is unconstitutional because Section 768.21 precludes two sisters of the decedent from recovering through the administratrix of the estate for "loss of net accumulations beyond death." The applicable portion of Section 768.21 reads as follows: "(6) The decedent's personal representative may recover for the decedent's estate the following: "(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest....

..."Under the new Wrongful Death Act recovery for `loss of prospective estate' *577 is not allowed for nor is it specifically prohibited. However, a counterpart or somewhat similar item of damage entitled `loss of net accumulations' is allowed under specified conditions under Section 768.21(6)(a) of the new act which provides: "`......

...If the decedent's survivors included a surviving spouse or lineal descendents, loss of net accumulations beyond death and reduced to present value may also be recovered.' (emphasis added) "When the definition of `survivors' set forth in Section 768.18 is read in conjunction with the above-quoted portion of 768.21(6)(a), it appears that the new act purports to allow recovery for loss of `net accumulations' beyond death only if the decedent is survived by a surviving spouse or minor children....

...n this act, caused by the injury resulting in death. When a personal injury to the decedent results in death, no action for the personal injury shall survive and any such action pending at the time of death shall abate. § 768.20, Fla. Stat. (1997). Section 768.21, Florida Statutes (1997), contains a list of damages that are recoverable in a wrongful death action....

...son was not survived by anyone. As Plaintiff alleges Davis was survived by two minor children, the Hospital contends Plaintiff may not recover damages. The Hospital would be correct if Davis was an "adult" at the time of his death. See Fla.Stat.Ann. § 768.21(4)....

...McCarson, 467 So.2d 277, 278-79 (Fla.1985) (quoting Restatement (Second) of Torts § 46 (1965)). We note that parents generally have no common law or statutory right to recover damages for pain and suffering, grief, or emotional loss in the event that their married, adult daughter is the victim of a wrongful death. See § 768.21(4), Fla....

...The personal representative must bring a single action to recover damages for all beneficiaries. Funchess v. Gulf Stream Apartments of Broward County, Inc., 611 So.2d 43, 45 (Fla. 4th DCA 1992). Damages are to be awarded to the survivors and to the estate in accordance with the parameters of recovery set by section 768.21....

...] [her] normal life expectancy. NOTE ON USE FOR 502.2b The estate may recover lost accumulations when the sole survivor is a parent without a cause of action in his or her own right, as well as when survivors include a spouse or lineal descendant. F.S. 768.21(6)(a) (1985); Vildibill v....

...In determining the duration of the losses, you may consider the [joint life expectancy of (decedent) and (surviving spouse)] [life expectancy of (surviving spouse)] together with the other evidence in the case. NOTES ON USE FOR 502.2d 1. F.S. 768.18 and 768.21 (1990), applicable to causes of action accruing after October 1, 1990, expand eligible survivor claimants in wrongful death actions by surviving parents and children, but are not applicable to claims for medical malpractice as defined by F.S....

...] [her] estate if [he] [she] had lived [his] [her] normal life expectancy. NOTE ON USE FOR 502.4c When it is shown that decedent had no survivors as defined in F.S. 768.18(1), lost accumulations are recoverable only if decedent was age 25 or over. F.S. 768.21(6)(a) (1985)....

...ul marriage. Gates, 247 So.2d at 43. Similarly, the Florida Wrongful Death Act provides that "[t]he surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury." § 768.21(2), Fla....

...Further, the Act provides that "[e]ach survivor *495 [including the decedent's spouse [1] ] may recover the value of lost support [2] and services [3] from the date of the decedent's injury to his death, with interest, and future loss of support and services from the date of death and reduced to present value." § 768.21(1), Fla....

...damages, as specified in this act, caused by the injury resulting in death.” Fla. Stat. § 768.20. Children of a decedent may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. Fla. Stat. § 768.21(3). 3 The personal representative of an estate is merely a nominal party to a wrongful death action brought on behalf of a decedent; the estate and the decedent’s survivors are the real parties in interest....

...l representative can recover for the decedent’s estate only “medical or funeral expenses due to the decedent’s injury or death that have become a charge against her or his estate or that were paid by or on behalf of the decedent.” Fla. Stat. § 768.21(6)(b). (Emphasis added). A survivor, on the other hand, may recover only “[m]edical or funeral expenses due to the decedent’s injury or death that the survivor has paid.” Fla. Stat. § 768.21(5)....

...As previously stated, under Florida law, in a recovery for wrongful death action, children of the decedent may recover for lost parental companionship, instruction, 8 and guidance and for mental pain and suffering from the date of injury. Fla. Stat. § 768.21(3)....

...care costs by transforming Medicare from the primary payer to the secondary payer, with a right of reimbursement. See United States v. Baxter Int’l, Inc., 345 F.3d 866, 874 (11th Cir. 2003). The MSP “makes Medicare the secondary payer 10 Under Fla. Stat. § 768.21(6)(b), the personal representative may recover for the decedent’s estate medical expenses due to the decedent’s injury or death that have become a charge against his estate or that were paid by or on behalf of decedent....

...The negligence action is in favor of the person injured; the wrongful death action is in favor of the decedent's estate and statutorily designated survivors. The measure of damages in a personal injury negligence action is different from the damages provided by section 768.21, Florida Statutes, for a wrongful death....

PER CURIAM: This case involves a review of damages awarded by the district court under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346 (b), 2401(b), 2674, 2675(b) (1982), and Florida’s Wrongful Death Act, Fla.Stat. § 768.21 (1985)....

...the district court’s subject matter jurisdiction was limited to a total of $100,-000. On May 9, 1985, the district court ruled that the United States was liable to each surviving child of Eva Dix pursuant to 28 U.S.C. § 2674 (1982) and Fla.Stat. § 768.21 (1985) in the amount of $100,000....

...The District Court’s Award of Damages We review a district court’s award of damages under a clearly erroneous standard. Taylor Rental Corp. v. J.I. Case Co., 749 F.2d 1526, 1530 (11th Cir.1985). We find such here. The children of Eva Dix claimed damages under Florida’s Wrongful Death Act. See Fla.Stat. § 768.21 (1985)....

...minority, in the case of healthy minor children, may be considered. (3) Minor children of the decedent may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. Fla.Stat. §§ 768.21(1), (3) (1985)....

...At the outset of trial, appellees waived any claim for lost support and services. Appellees limited their claim to a recovery under subsection three for the pain and suffering sustained by the children of the deceased. The district court, however, awarded damages to the surviving children pursuant to § 768.21(1) for the value of lost support and services....

...5 In light of the acknowledgement by appellees that there was simply no basis for such, we do not understand why the district court awarded these damages. Moreover, even in the event appellees had not waived their claim for lost support and services, section 768.21 would require the district court, in its computation of any damages, to consider such elements as the relationship between the surviving children and the decedent and the varying ages of the children....

...omprising the proportionate award to each surviving child of the decedent. VACATED and REMANDED. 1 . The district court ruled that Roosevelt Dix, Sr. was not entitled to damages as a “surviving spouse" as defined in Florida Statute §§ 768.18 and 768.21(2) (1985) since he did not live with the decedent, Eva Dix, and therefore did not rely or depend on her support or services....

...ages pursuant to Title 28, United States Code, Section 2674 and for the value of lost support and services, lost parental companionship, instruction and guidance and from mental pain and suffering, to the minor children pursuant to Florida Statutes, Section 768.21....

...ice for the plaintiff and against the defendant. and we would have reversed for a new trial on the issue of damages to the estate. The verdict granted the estate was excessive and not in accord with the proven tangible elements of damage. Fla. Stat. § 768.21(1), (3) (1973)....

...A defense that would bar or reduce a survivor’s recovery if she or he were the plaintiff may be asserted against the *759 survivor, but shall not affect the recovery of any other survivor. § 768.20, Fla. Stat. (2008). The Act also provides for damages that may be recovered by the survivors, see § 768.21, Fla....

...tive damages. Id. If the action alleges that negligence or a violation of the resident’s rights caused the resident’s death, the claimant is “required to elect either survival damages pursuant to s. 46.021 or wrongful death damages pursuant to s. 768.21.” Id. 2 Section 46.021 provides that “[n]o cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.” § 46.021, Fla. Stat. (2008). Section 768.21 is part of Florida’s Wrongful Death Act and provides for the damages that may be claimed by the decedent’s estate and statutory heirs. § 768.21, Fla....

...s needed. The inference to me that he knows a life, such as Anthony's, was worth three million dollars." * * * Parents of a deceased minor child may recover for loss of support, loss of services, and mental pain and suffering from the date of death. Section 768.21, Florida Statutes (1981)....

...She sought compensatory damages under Florida’s Wrongful Death Act, Fla. Stat. §§ 768.16–768.26, which in relevant part allows a decedent’s surviving spouse to recover for the “loss of the decedent’s companionship and protection” and “mental pain and suffering from the date of injury.” § 768.21(2). A After a four-day trial, the jury found Phillip Morris comparatively liable for Mr....

...Any funds Melissa might receive from the proceeds of the settlement of the wrongful death action would not be for the personal injuries she received in the accident. Instead, any funds allocated to Melissa from the wrongful death recovery would be awarded as compensation for her losses as a survivor of the Decedent. § 768.21, Fla....

...In order to insure the availability of such relief, the plaintiff has moved this Court to apply the federal common law of survivorship instead of the relevant Florida statute. The defendants have strenuously argued the applicability of the Florida Wrongful Death Act, see § 768.16 et seq. Specifically, § 768.21 [1] sets forth the compensable damages awardable to the survivors depending upon their relationship to the deceased....

...The wrongdoer's personal representative shall be the defendant if the wrongdoer dies before or pending the action. A defense that would bar or reduce a survivor's recovery if he were the plaintiff may be asserted against him, but shall not affect the recovery of any other survivor." § 768.21, as mentioned previously, delineates the specifically compensable losses suffered by the decedent and his devisees and distributees....

...n pursuit of formalistic symmetry. Considerations of deterrence and federal supremacy, as well as justice, require us to grant plaintiff's motion. Hereafter, the federal common law will govern any future assessment of damages in this case. NOTES [1] § 768.21 DAMAGES All potential beneficiaries of a recovery for wrongful death, including the decedents estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged....

...However, if a wrongful act causes death, the Wrongful Death Act allows the estate to recover damages only for prospective loss of earnings of the decedent and for the decedent's medical and funeral expenses which were not recovered by the survivor. § 768.21(6)....

...The certified question reads: Whether the executrix of an estate is entitled to recover the loss of income received from a trust, pursuant to the definition of "net accumulations" contained in section 768.118(5), Fla. Stat. (1983), when said income has not resulted from the skill or effort of the decedent. Id. at 5. Under section 768.21(6)(a), Florida Statutes (1983), the personal representative in this suit was entitled to claim the "[l]oss of the prospective net accumulations ......

...The wrongful death statute provides for recovery by the decedent's survivors for their sentimental losses ( i.e., loss of the decedent's companionship and protection and for the survivors' mental pain and suffering) and for their economic losses ( i.e., their loss of support and services). Section 768.21, Fla....

...Tampa Bay Downs, Inc., 948 So.2d 599, 606 (Fla.2006)). With these principles in mind, we turn to the statutes at issue. Discussion The statutes at issue are found in the "Florida Wrongful Death Act," which is codified in sections 768.16-768.26, Florida Statutes (2005). Section 768.21(1), Florida Statutes, provides that in a wrongful death action, "[e]ach survivor may recover the value of lost support and services from the date of the decedent's injury to her or his death, with interest, and the future loss of support and services." § 768.21(1), Fla. Stat. (2005). Minor children "may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of the injury." § 768.21(3), Fla....

...14, 2010); see also B.B. v. P.J.M., 933 So.2d 57, 59 n. 3 (Fla. 1st DCA 2006) ("Some examples of court proceedings that could establish the identity of a child's father would include: a father or a child's right to recover civil damages under the wrongful death statute, section 768.21(4), Florida Statutes....

...t be Honor's "survivor" pursuant to section 768.18(1), because she was born during the marriage between Achumba and Beckford, and Beckford is listed on Smoot's birth certificate as her father. [3] Achumba asserts that Smoot is a survivor pursuant to section 768.21(1), because she was born "out of wedlock of the father," and Honor recognized a responsibility for her support....

..."). Accordingly, the trial court did not abuse its discretion in excluding the opinion evidence of the law enforcement authorities. Conclusion The judgment against FINR is therefore affirmed. Affirmed. NORTHCUTT and KELLY, JJ., Concur. NOTES [1] See § 768.21(4), Fla....

...wnership. The defendants' motion to dismiss count VI is denied. COUNT X Count X of plaintiffs' complaint alleges a cause of action for hedonic damages. Hedonic damages attempt to compensate the survivors of the decedent for lost pleasures. Fla.Stat. § 768.21 controls what damages may be awarded in a wrongful death action. Hedonic damages are not made a part of Fla.Stat. § 768.21....

..." in Florida. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The court is of the opinion that there is no cause of action for hedonic damages in Florida. The court must follow the guidelines established by Fla.Stat. § 768.21 and Florida case law until such time as the Supreme Court or the Florida legislature decides differently....

...Upjohn Co., 409 F.Supp. 453 (1976). Defendants correctly contend that the claim for loss of future earnings of the minor and net accumulations to the estate of the minor are not recoverable under Florida law absent specific authorization by Fla.Stat. § 768.21. According to § 768.21(6)(a)(1), only the decedent's surviving spouse or lineal descendants may recover these damages. Bassett v. Merlin, Inc., 335 So.2d 273 (Fla.1976). On the other hand, each survivor may recover the value of future lost support and services from the date of the decedent's death reduced to present value. Fla.Stat. § 768.21(1)....

...The funeral expenses were paid by the survivors of the decedent. As this court has dismissed all claims of David and Nancy Brown as the survivors of the decedent, the court strikes the claim for funeral expenses. The right to recover funeral expenses is vested in the personal representative. Section 768.21(5) and (6)(b), Fla.Stat....

...They also filed motions for partial summary judgment arguing that Lucy Thomas could not recover damages for mental and emotional pain and suffering or lost companionship, guidance, and advice on the medical malpractice claims because all of Mildred Thomas's surviving children were adults who were precluded under section 768.21(8), Florida Statutes (1997), from seeking such damages in a wrongful death suit....

...As to all of the claims, the trial court dismissed the prayer for damages relating to mental and emotional pain and suffering and lost companionship, guidance, and advice. In granting the motions for partial summary judgment on the medical malpractice claims, the trial court held that pursuant to section 768.21(8), Lucy Thomas could not recover nonpecuniary damages on behalf of the estate....

...DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000). This court conducts a de novo review of a trial court's order granting partial final summary judgment. Roth v. Bank of Am., N.A., 23 So.3d 765, 766 (Fla. 2d DCA 2009). IV. Neither Section 768.21(8) Nor the Impact Rule Applies to Bar Prayers for Nonpecuniary Damages in Claims for Intentional Misrepresentation....

...complaint arose only after Mildred Thomas died as a result of alleged medical malpractice, and (2) the claim failed to meet the requirements of the impact rule. Neither of these grounds support the trial court's decision. First, we acknowledge that section 768.21(8) specifically prohibits adult children from recovering damages for mental and emotional pain and suffering and for loss of parental companionship, instruction, and guidance in wrongful death actions arising out of medical malpractice....

...Rather, the third claim is based on events which occurred after Mildred Thomas's demise, specifically, the purported cover-up of the real cause of her death and the provision of false information to her family. Thus, to the extent *253 that the trial court relied upon section 768.21(8) to enter partial final summary judgment, such reliance was erroneous....

...the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor. [4] A wrongful death action concerns the right of statutory beneficiaries to recover for loss of support, companionship, lost earnings and other damages. § 768.21, Fla....

...Meeks a duty of care because a bailment relationship existed between BellSouth and FPL concerning the pole, thereby relieving BellSouth of any liability. The trial court also ruled that any damages that may have been recoverable on behalf of Mr. Meeks' minor son under section 768.21(3), Florida Statutes (1997), are measured up to the time the child reaches the age of 25....

...Jur.2d Bailments § 31 (2000) (stating that whether a bailment has been created is a question of fact for the trier of fact). Therefore, the trial court erred in entering summary judgment in favor of BellSouth on the bailment theory. [5] See Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001). Damages Under Section 768.21(3) We are presented with the issue whether Florida's Wrongful Death Act (the Act) limits the recovery of a minor child's claim of lost parental companionship and mental pain and suffering for the wrongful death of a parent to that peri...

...e falls within the definition "minor children," which requires the child to be "under 25 years of age, notwithstanding the age of majority." § 768.18(2), Fla. Stat. (1997). The specific category of damages we are here concerned with is addressed in section 768.21(3), Florida Statutes (1997), which provides: Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury....

...damages for pain and suffering to the surviving children computed over the joint life expectancies of the children and their father; it is urged that such damages are statutorily allowable if computed over the children's period of minority only. See § 768.21(3), Fla....

...d] [each of the surviving children]] together with the other evidence in the case. Fla. Std. Jury Instr. (Civ.) 6.6(g). The committee notes state that "the Committee revised 6.6g in 1987 to recognize that `joint life expectancy' is not prescribed by § 768.21(3), F.S., as the only measure of a child's future loss" and that "[t]he evidence may support a finding of a longer or a shorter duration." Certainly, while not binding precedent, the Florida Supreme Court, in adopting this jury instruction, and the court in Helms indicated a preference for the view that a minor child's recovery under section 768.21(3) is not limited by the period of minority and may extend over the life expectancy of the child....

...[6] Another requires that we interpret *1132 this statute in order to avoid an unreasonable or absurd result. [7] Thus in our search for the legislative intent and in keeping with these general rules of statutory construction, we will examine the other subsections of section 768.21 that have provisions similar to subsection (3). We begin our analysis with the integral provisions of subsection (3). We note that section 768.21(3) allows recovery by adult children—age 25 and over—of lost parental companionship and mental anguish, provided the decedent was the last surviving spouse....

...See Rush; Pavolini. We also find persuasive the interpretation the courts have given subsection (4) which provides in pertinent part that "[e]ach parent of a deceased minor child may also recover for mental pain and suffering from the date of injury." § 768.21(4), Fla....

...See Roberts v. Holloway, 581 So.2d 619 (Fla. 4th DCA 1991). We believe that a minor child suffers and grieves no less for the loss of a mother or father and, therefore, should be treated no differently than an adult child or spouse. *1133 Additionally, section 768.21(2) similarly provides that "[t]he surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury." Obviously, the measure of damages under this section is not limited by any time periods such as minority. Our analysis of all of the provisions of section 768.21 leads us to only one logical conclusion, which is that a minor child's recovery should be measured by the joint life expectancy of the child and the deceased parent. This interpretation brings symmetry to all of the provisions of the statute. Moreover, with respect to purely economic damages including support and services, section 768.21(1) specifically provides that the period of minority of a healthy minor child is a relevant factor to be considered by the trier of fact in determining the amount of damages, but it is only one of several factors. If the Legislature intended that a minor child's claim for lost parental consortium, after it vested, would end at a particular point, it could have easily inserted a limiting period in section 768.21(3), as it did in section 768.21(1). Since it did not, the obvious intent of the Legislature is that no such limitations period should be applied to section 768.21(3) claims....

...We find nothing in the record or in the law to indicate that the broken heart of a minor child caused by the grievous loss of a parent heals any faster than the broken heart of an adult child, or of a spouse who mourns the loss of a husband or wife. Moreover, we find no basis in the provisions of section 768.21(3) that requires disparate treatment of minor children, adult children, or spouses who seek damages for mental pain and suffering for the loss of a loved one. We conclude, therefore, that damages recovered by a minor child pursuant to section 768.21(3) should be calculated based on the joint life expectancy of both the deceased parent and the child....

...of their life experiences the full measure of recompense due a son for the loss of his father. We certify to the Florida Supreme Court the following question as one of great public importance: ARE THE DAMAGES RECOVERABLE BY A MINOR CHILD PURSUANT TO SECTION 768.21(3), FLORIDA STATUTES, LIMITED TO THE PERIOD OF MINORITY? REVERSED and REMANDED for further proceedings; QUESTION CERTIFIED....

...Gidman, 440 So.2d 1277, 1281 (Fla.1983)); Pavolini v. Bird, 769 So.2d 410 (Fla. 5th DCA 2000), rev. denied, 790 So.2d 1102 (Fla.2001). [8] We recognize the perceived unfairness of establishing an age limitation that prohibits an adult from recovering under section 768.21(3) when there is a surviving spouse, but allows a minor the right of recovery....

...Florida Medical Association, and The Association of Community Hospitals and Health Systems of Florida, Amicus Curiae. PER CURIAM. We have for review two decisions that pass upon the following question certified to be of great public importance: DOES SECTION 768.21(8), FLORIDA STATUTES (1995), WHICH IS PART OF FLORIDA'S WRONGFUL DEATH ACT, VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FLORIDA AND FEDERAL CONSTITUTIONS, IN THAT IT PRECLUDES RECOVERY OF NONPECUNIARY DAMAGES BY A DECEDENT'S ADULT CHILD...

...of the appellees. The appellants brought a wrongful death suit against the appellees —North Miami Medical Center and various physicians who had treated the decedent. The trial court granted summary judgment for the hospital and physicians, based on section 768.21, Florida Statutes (1995)—part of Florida's Wrongful Death Act[.] 712 So.2d at 827....

...She seeks damages for mental pain and *1042 suffering and for loss of support and services in her individual capacity, and for the net accumulations on behalf of her mother's estate. Based on these facts, the trial court entered summary judgment for the respondents pursuant to section 768.21(8)....

...On appeal, the Third District affirmed the trial court's order and certified the same question of great public importance as certified in Mizrahi. The First District Court of Appeal recently addressed the same issue in Stewart v. Price, 718 So.2d 205 (Fla. 1st DCA 1998), wherein the court rejected the argument that section 768.21(8) denies the federal and state constitutional guarantee of equal protection under the law....

...t, was not entitled to recover damages for the wrongful death of a parent. U.S. v. Durrance, 101 F.2d 109 (5th Cir.1939); Louisville & N.R. Co. v. Jones, 45 Fla. 407, 34 So. 246 (1903). Prior to the enactment of chapter 90-14, Laws of Florida, under section 768.21(3) only minor children could recover damages for their pain and suffering upon the wrongful death of a parent. See Weimer v. Wolf, 641 So.2d 480 (Fla. 2d DCA 1994). In chapter 90-14, the legislature amended section 768.21(3), among other things, to expand the definition of "survivors" who may recover for the wrongful death of a parent....

...costs. See § 766.201(1), Fla. Stat. (1995)." [1] Id. at 210. [2] In support of this rationale, the Legislature referred to and discussed the medical malpractice crisis and its adverse impact on the accessibility of health care during the passage of section 768.21. [3] Legislators expressly linked the exclusion of adult children of medical malpractice decedents contained in section 768.21(8) to the health care crisis rationale expressed in section *1043 766.201....

...oes not rest on any reasonable basis or that it is arbitrary." Id. All other adult children who lose their parents as a result of other negligent conduct have the right to recover pain and suffering damages if their parent died without a spouse. See § 768.21(8), Fla....

...*362 Turning now to the reasons underlying our decision we first take into consideration the existence of related causes of action under Florida law. In Florida, a married person may maintain an independent cause of action for loss of consortium of an injured spouse. Gates. Florida's wrongful death statute, section 768.21, Florida Statutes (1982), provides for recovery to both a surviving spouse and a minor child for loss of consortium in the event the spouse/parent dies as a result of the negligence of a third party....

...Carson, Edward J. Atkins and George W. Chesrow of Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for appellees. OVERTON, Chief Justice. This is an appeal from an order of the circuit court that initially and directly passed on the constitutionality of Section 768.21(6)(a), Florida Statutes....

...His parents are his only survivors under Florida's wrongful death statute. Section 768.18(1), Florida Statutes. The trial court certified questions to the Third District Court of Appeal asking whether his parents could recover net accumulations under Section 768.21(6)(a), Florida Statutes. The Third District in Bassett v. Merlin, Inc., 304 So.2d 543 (Fla. App.3rd, 1974), correctly answered the question in the negative. Upon remand to the circuit court, the appellant asserted by motion the unconstitutionality of Section 768.21 on the grounds it denied parents of an adult child the right to damages for mental pain and suffering. The circuit court held the statute constitutional. We agree. We previously considered and upheld the constitutionality of Section 768.21, Florida Statutes (1975), in a related factual situation in White v....

...Gulf Stream Apartments at Broward County, Inc., 611 So.2d 43, 45 (Fla. 4th DCA 1992). The statute's designation of the personal representative as the party plaintiff in a wrongful death action does not indicate a legislative intent that the wrongful death act be subsumed by the probate code. Section 768.21 specifies those damages recoverable by survivors and by the estate....

...o part in its decision on how to allocate the proceeds of settlement. When asked to apportion the proceeds of a wrongful death settlement, a court must look to the statute to identify both the "survivors" and recoverable damages. See §§ 768.18(1), 768.21, Fla....

...ions." Canal Ins. Co. v. Giesenschlag, 454 So.2d 88, 89 (Fla. 2d DCA 1984) (citation omitted). The Arnolds argue that the "per person" language portion of the policy does not limit their recovery because under the Florida Wrongful Death Statute, see section 768.21(1), (4), Florida Statute (1995), they have an independent right of recovery for the value of the loss of support and services from Adam and for their own pain and suffering caused by the loss of their minor child....

...further proceedings consistent with this opinion. REVERSED and REMANDED. PETERSON and THOMPSON, JJ., concur. NOTES [1] Although not addressed in the equitable distribution hearing, the Magsipocs might also have recovered funeral and burial expenses. § 768.21(4), Fla....

...We agree, therefore, with the Sheriff, but only to the extent of noting that the $2,500,000 award was excessive and against the manifest weight of the evidence. In Florida, a surviving parent may recover the value of a deceased minor's services *1022 reduced to present value. § 768.21(1), Fla....

...s death to the date on which the child would have reached majority. See Roberts v. Holloway, 581 So.2d 619 (Fla. 4th DCA 1991). The material consideration in an evaluation of lost services is the replacement value of those services to the survivors. § 768.21(1), Fla....

...For purposes of that new trial, we address the second issue raised by the appellants. The trial judge instructed the jury that under Florida's Wrongful Death Act, the parents of a deceased minor child are entitled to recover mental pain and suffering from the date of injury. § 768.21(4), Fla....

...survive, as the jury may assess." § 768.03(1), Fla. Stat. (1963). The present statute provides that damages in a wrongful death action may be awarded to each parent of a deceased minor child "for mental pain and suffering from the date of injury." § 768.21(4), Fla....

...The second issue raised by appellant concerns the propriety of a $46,000 damage verdict to the estate returned by the jury, and the trial court's denial of a motion for remittitur. The appellant argues that under *416 the Florida Wrongful Death Act, section 768.21(6), Florida Statutes (1980), there are three elements of recoverable damages for an estate: (1) loss of earnings, (2) loss of net accumulations, and (3) funeral expenses....

...ath of a parent: Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. § 768.21(3), Fla. Stat. (1993). Section 768.21(4) of the Act provides that a parent may recover for loss of filial consortium arising from the wrongful death of a child, including an adult child: 768.21 Damages.—All potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged....

...Damages may be awarded as follows: . . . . (4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors. § 768.21, Fla....

the Florida Wrongful Death statute, Fla.Stat. § 768.21 (1985). Section 768.20 of the Florida Statutes

...At the time of his death he had four adult children, none of whom were dependent upon him. The personal representative of Mr. Fletcher's estate, appellant S. Hiram Henderson, on behalf of the four children filed suit against appellee, claiming, among others, damages for loss of decedent's net accumulations as provided for in Section 768.21(6)(a), Florida Statutes (1975). The trial court held that, since the children in question were not dependent minors, they were not persons who could recover damages under Section 768.21(6)(a), and the court granted a partial summary judgment for appellee eliminating that element of damages from appellant's claim. Appellant contends that the use of the terms "lineal descendants" in Section 768.21(6)(a) indicates an intention not to restrict the beneficiaries of that section to minor children....

...for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child's support." Section 768.21(6)(a) in pertinent part provides: "(6) The decedent's personal representative may recover for the decedent's estate the following: "(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest....

...oss of net accumulations beyond death and reduced to present value may also be recovered." The adult children of a decedent who are not dependent upon the decedent are not "survivors" under Section 768.18(1); therefore they are not "survivors" under Section 768.21(6)(a). Hence the trial court correctly ruled that the appellant could not recover "net accumulations" (as that term is defined in Section 768.18(5)) on behalf of the decedent's adult children. Appellant's argument attacking the constitutionality of Section 768.21(6)(a) is adequately answered by the Supreme Court's holding in White v....

...A judge may not base an order for a new trial on argument that is both generally and contextually proper as a matter of law. Cf. Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000) (civil litigant may obtain relief based on improper closing argument made by counsel for an opposing party). Section 768.21(2), which governs recoverable damages in wrongful death negligence actions, provides that "[t]he surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date...

...Neil, 457 So.2d 481 (Fla.1984), the record demonstrates that in all events he was satisfied that plaintiff's non-invidious reasons for the subject challenges were genuine. In the end that is the crucial part of an objection under Melbourne v. State, 679 So.2d 759 (Fla.1996). [3] See § 768.21(2), Fla....

...an independent action under the predecessor act. It is equally clear under the 1972 act that the survivor's cause of action remains personal to the survivor even though the action is required to be brought by the decedent's personal representative. Section 768.21(1) provides: "Each survivor may recover ...," and section 768.21(2) provides that "the surviving spouse may also recover...." Lending further credence to the personal nature of the survivor's claims is the provision of section 768.20 which states: "A defense that would bar or reduce a survivor's rec...

...ly be set off by the decedent's settlement of a personal injury claim against a separate tortfeasor." In Martin v. United Security Services, Inc., 314 So.2d 765, 769 (Fla.1975), the court stated: In summary, the items of damage recoverable under new Section 768.21 allow each specified survivor to recover for (1) loss of past and future support and services; (2) loss of companionship and protection; and (3) his or her own mental pain and suffering from the date of the injury....

...In its certiorari petition, OneBeacon first asserts that it was improper to allow the initiation of a section 624.155 bad-faith insurance claim against it prior to the conclusion of the underlying coverage litigation and that a punitive damages claim should not have been permitted without compliance with section 768.21(1), Florida Statutes (2001)....

...Dr. Mohan W. Jersani, alleging the defendant breached the applicable standard of care resulting in Milton's death as a result of a heart attack. By the time the case reached the jury, the only relief sought by Virginia related to that provided under section 768.21(2), Florida Statutes, namely for Virginia's loss of the decedent's companionship and for mental pain and suffering from the date of the injury....

...Stoner refused to opine regarding Milton's life expectancy at the time of his death and Dr. Stoner's concession that Milton may have exceeded his life expectancy resulted in causation evidence so equivocal as to be worthless. Damages Under Wrongful Death Act for Loss of Consortium—evidence of life expectancy Section 768.21, Florida Statutes, entitled "Damages," provides in relevant part: All potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged....

...m. While no Florida case law addresses the evidentiary requirement regarding a decedent's life expectancy under subsection (2), in BellSouth Telecommunications, Inc. v. Meeks, 863 So.2d 287 (Fla. 2003), the supreme court considered the meaning of subsection 768.21(3) which provides for recovery by a decedent's children "for lost parental companionship, instruction and guidance and for mental pain and suffering from the date of injury." The precise issue in Meeks concerned whether the damages rec...

...prevailing judicial understanding regarding a surviving minor child's damages in a wrongful death action. In the present case, we find no persuasive reason to depart from this *495 understanding of the Legislature's intended measure of damages under section 768.21(3)....

...See, e.g., Stanford Fruit Growers, Inc. v. Frazier, 158 Fla. 135, 27 So.2d 906 (1946); Pidcock-Jones Co. v. Watson, 141 Fla. 376, 193 So. 305 (1940). [2] Given that some evidence relevant to joint life expectancies is necessary to a damages claim under section 768.21(2), the remaining inquiry concerns whether substantial competent evidence in this regard was presented by the plaintiff....

...In support of this verdict, the plaintiff cites us to National Railroad Passenger Corporation v. Ahmed, 653 So.2d 1055 (Fla. 4th DCA 1995). We find Ahmed, however, to be distinguishable from this case. In Ahmed, a case which involved wrongful death damages to adult children under section 768.21(3), Florida Statutes (1990), the fourth district affirmed an award of $400,000 to each adult child, even though it recognized that it was "indeed a generous award." Id....

...estate. Recovery for Loss of Children The law of the state where the wrongful death occurred dictates the measure of damages and components in an action under the FTCA. Johnson v. United States, 780 F.2d 902 (11th Cir.1986). In this case, Fla.Stat. § 768.21 controls the damages plaintiff shall receive....

...at a fair and just award, one in keeping with the trend in similar cases, is $850,000 for the death of each child. The total award for the deaths of the two daughters in $1.7 million. [2] Recovery for Loss of Wife For the loss of his wife, Fla.Stat. § 768.21 allows Mr. Grayson to recover economic damages as well as for loss of companionship, pain, and suffering. He can also recover for future loss of support and services from the date of death reduced to present value and funeral expenses. § 768.21(1), (3)....

...restaurant work, and $335,500 for the full-time household and family services performed, minus consumables and reduced to present value. The court finds that this amount should be reduced, and that a fair award for these economic losses is $250,000. Section 768.21(2) entitles Mr....

...Grayson has also sought to recover for the loss of the net accumulations of his daughters' estates. However, since Ivan is the decedents' father, rather than spouse or lineal descendant, he is ineligible to recover for his daughters' lost accumulations. § 768.21(6)(a)(1).

mental pain and suffering from the date of injury." § 768.21(3), Fla. Stat. (2014). Thus, an adult child twenty-five

...or wrongful death. The decedent's personal representative now brings all suits for the benefit of each of the decedent's survivors and his estate. § 768.20, Fla. Stat. (1977). Section 768.18(1) defines survivors to include a decedent's parents, and Section 768.21(1) lists the elements of damage for which "each survivor" may recover. Finally, Section 768.21(4) provides that "each parent" of a deceased minor child may also recover for mental pain and suffering....

...881 (1935); § 733.708, Fla. Stat. (1991). See also §§ 733.602; 733.609; 733.612(20), (24), (26). Arguments that other proceeds might be forthcoming cannot serve as a basis for omitting the estate from a reasonable share of tendered settlement proceeds. See § 768.20; § 768.21(6)(b), (7), Fla....

...[2] "Remarriage of surviving spouse, or possibility thereof, as affecting action for wrongful death of deceased spouse", 87 ALR 2d 252 (1963). [3] Fla.Session Law, Ch. 72-35 (March 8, 1972): "(c) Evidence of remarriage of the decedent's surviving spouse is admissible." [1] New Fla. Stat. Ch. 72-35, § 768.21(6) (c) expressly permits evidence of remarriage for deaths occurring beginning July 1, 1972 (subsequent to the death in the case at bar).

...If she had lived another two years, her estate would have been entitled to the maximum $192,800 in estate tax credits. The estate representatives contend here that the $71,000 in lost tax credits is an element of damages under the Wrongful Death Act, section 768.21(6)(a), Florida Statutes (1985)....

...section 5-4.3, the amount of recovery for damages, in a wrongful death action, "is measured by the fair and just compensation for the pecuniary injuries resulting from decedent's death to the persons [the distributees] for whose benefit the action is brought." Farrar, 502 N.Y.S.2d at 611. Section 768.21(6)(a) of the Florida Wrongful Death Act, by comparison, appears to measure the loss to the decedent's estate as a consequence of an early death, without consideration for the consequences of federal estate taxes upon what would otherwise have been available for distribution....

...his appeal. [1] The estate alleged (1) deprivation or infringement of a nursing-home resident's rights under section 400.23, Florida Statutes (2000), of the RRA, authorizing the recovery of "actual and punitive damages," and (2) wrongful death under section 768.21, Florida Statutes (2000), permitting awards for medical and funeral expenses, and noneconomic damages for certain designated beneficiaries....

...ges to the familial survivors of nursing-home residents. Addressing the WDA claim, the court ruled that because the jury had found the sole cause of Williams' injuries was Tandem's professional negligence rather than ordinary negligence, and because section 768.21(8) precludes a decedent's adult children from recovering noneconomic damages resulting from medical malpractice, the heirs were not entitled to such damages....

...se of action for the recovery of damages suffered by them—not by the decedent—resulting from the wrongful invasion of legal rights by a tortfeasor. Id. See also Knowles v. Beverly Enters.-Fla., 898 So.2d 1, 4, 2004 WL 2922097 (Fla. Dec. 16, 2004). Section 768.21(3) identifies the types of noneconomic damages recoverable by the adult children if there is no surviving spouse, and they include "lost parental companionship, instruction, and guidance and for mental pain and suffering from the date...

...There was, however, no such right at common law, and nothing in chapter 400 expresses any intent, expressly or remotely, to incorporate the same statutorily created remedies of the WDA within the RRA. The estate next argues the lower court erred in striking the noneconomic damages returned to the heirs under section 768.21(8) of the WDA, based upon the jury's finding that all of the fault of Tandem was attributable to its professional, rather than ordinary, negligence....

...In deciding to give the charge on professional negligence, the lower court pointed out that the estate intended to call expert witnesses for the purpose of testifying about the professional standard of care and duties of Tandem and its nurses, while also maintaining that the medical-malpractice provisions of chapter 766 or 768.21(8) should not apply....

...The difficulty with the estate's argument is that it never brought the statutory exclusion to the lower court's attention. Indeed, in its two motions seeking leave to add the punitive-damages claim, the estate did not distinguish between claims for punitive damages under section 400.023, and those under section 768.21....

...This was added to the recommended act by the legislature. Obviously, the legislature could have inserted the provision providing for evidence of remarriage anywhere in the act. Therefore, the placement of this provision within the act would be of prime importance in determining legislative intent. Section 768.21, Florida Statutes: "Damages....

...ongful Death Act. Damages for wrongful death may not be reduced by amounts received by beneficiaries as compensation from a collateral source. Wadsworth v. Friend, 201 So.2d 641 (Fla.App. 4th, 1967). The placement in the act of subsection (6) (c) of Section 768.21, Florida Statutes, "Evidence of remarriage of the decedent's spouse is admissible", indicates that there are only two purposes for which the evidence could be used: (1) it could mitigate the damages going to the decedent's estate from...

...Although the court erred in giving the instruction which is set forth above, Gaines has not cross-assigned this as error; therefore, a reversal is not required. Section 768.18, Florida Statutes, defines "survivors" as including a decedent's parents. Section 768.21(1), Florida Statutes, states that each survivor may recover the value of lost support and services....

...denied, 262 So.2d 447 (Fla. 1972). AFFIRMED. GLICKSTEIN, J., and BOARDMAN, EDWARD F., Associate Judge (Retired), concur. LETTS, J., concurs in conclusion only. NOTES [1] The parents were joined as plaintiffs under the authority of Florida Statutes Annotated § 768.21 (West Supp....

...es as well as the expenses incurred by the estate. It follows, from the fact that the plaintiff can amend to reflect his capacity as personal representative, that claims for damages which are properly recoverable by the personal representative under section 768.21(6), Florida Statutes (1981), will also relate back....

...Stat. §§ 768.10-768.26, permits survivors to recover the value of lost support and services from the date of injury to the date of death, as well as the future loss of support and services from the date of death reduced to present value. Fla. Stat. § 768.21(1)....

...A minor child of the decedent may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering. Parents of a deceased minor child may recover noneconomic damages for mental pain and suffering, [22] Fla. Stat. § 768.21(4), as well as economic damages for medical or funeral expenses paid, Fla. Stat. § 768.21(5). Finally, as relevant to this case, the estate may recover the loss of prospective net accumulations of the estate reduced to present money value. Fla. Stat. § 768.21(6)(a), (b)....

...oer. BellSouth Tele., Inc. v. Meeks, 863 So.2d 287, 290 (Fla. 2003) (citing Fla. Stat. § 768.17). While the statute provides that the child's loss of support and services from the death of a parent may be limited to the child's minority, Fla. Stat. § 768.21(1), no such limitation is expressed in the statute regarding the child's pain and suffering from the loss of a parent, Fla. Stat. § 768.21(3)....

...due to natural causes during the child's lifetime." BellSouth Tele., 863 So.2d at 292. Likewise, the relevant statute does not limit the pain and suffering incurred by a parent from the loss of a minor child to the child's remaining minority years, § 768.21(4), and that calculation should instead be measured based on the life expectancies of the parents....

...Ballard by the accident, both out of guilt and his own loss, [3] the jury returned a verdict of only $50,000 — the exact amount suggested by "Mr. Ballard's counsel" [4] — in compensation for the plaintiff's mental pain *1020 and suffering caused by Catherine's death. See § 768.21(4), Fla....

...Ballard and Catherine, who was universally described as a fine and lovable child, was particularly close. At the time of Catherine's death, which devastated her, Ms. Ballard was 31 years of age. The award returned by the jury for the mental pain and suffering she sustained after the child's injury but before her death, see § 768.21(4), and for the ensuing 44 years of her projected life expectancy — little more than $1,000 per year — was, in our view, so pitifully small that no reasonable person could have considered it sufficient compensation....

...atutes (1985), or to order a new trial on damages only at which the evidence and argument shall be confined to the issue of Ms. Ballard's damages for the mental pain and suffering she has sustained and will sustain because of the death of her child. § 768.21(4), Fla....

...sufficient to compensate her for the recoverable elements of damages. [5] This is the only element of damages now in issue since Ms. Ballard waived any other personal claim and the defendants have satisfied the judgment for the estate's claims under § 768.21(6)....

...damages for pain and suffering to the surviving children computed over the joint life expectancies of the children and their father; it is urged that such damages are statutorily allowable if computed over the children's period of minority only. See § 768.21(3), Fla....

...dent for support or services, any blood relatives and adoptive brothers and sisters.” Id. § 768.18(1). Where the legislature has defined a term, courts are bound to follow that definition. Streeter v. Sullivan, 509 So. 2d 268, 272 (Fla. 1987). Section 768.21 specifies the types of damages that may be awarded to “each survivor” and additional types of damages for certain survivors, including a “surviving spouse.” It states, in pertinent part: All potential benefici...

...if the surviving spouse was not married to the decedent prior to the date of the decedent’s injury. The definition of “survivor” in the statute is limited to familial relationships only, and both subsections (1) and (2) of section 768.21 clearly provide that damages are recoverable from the date of “injury.” §§ 768.18(1), 768.21(1)–(2), Fla....

...mit who may recover, but rather, only limits what a survivor may recover. See Kelly, 211 So. 3d at 349 (Taylor, J., dissenting). In fact, the legislature’s frequent differentiation between the “date of injury” and the “date of death” in section 768.21 demonstrates its awareness that these may be two different dates in a given case....

...We, therefore, reverse the final judgment based on the improper closing argument. 23 On Cross-Appeal On cross-appeal, Mrs. Wiederhold maintains that the estate should have been allowed to introduce all medical expenses paid on Mr. Wiederhold’s behalf pursuant to section 768.21(6), Florida Statutes....

...(b) Medical or funeral expenses due to the decedent’s injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5). § 768.21(6)(b), Fla....

...Domino’s disagrees, arguing that Mr. Wiederhold’s estate is not entitled to windfall for medical expenses that were not owed by the estate and that had been resolved. The estate has a right to claim medical expenses paid by or on Mr. Wiederhold’s behalf. Id. § 768.21(6)(b); Horton v. Channing, 698 So. 2d 865, 869 (Fla. 1st DCA 1997) (determining that $425,824.42 paid by insurance providers constituted medical expenses paid on behalf of decedent, and therefore, constituted damages as provided by section 768.21(6)(b), despite fact that plaintiff and estate had no obligation to repay providers). Further, such damages are not subject to reduction when subrogation or reimbursement right exists....

...The principle behind the collateral source rule is that it is better for the wronged plaintiff to receive a potential windfall than for a tortfeasor to be relieved of responsibility for the wrong. Respess v. Carter, 585 So. 2d 987, 990 (Fla. 5th DCA 1991). Based on the plain wording of section 768.21(6)(b), we conclude the trial court erred in prohibiting Mrs....

...They also filed motions for partial summary judgment arguing that Lucy Thomas could not recover damages for mental and emotional pain and suffering or lost companionship, guidance, and advice on the medical malpractice claims because all of Mildred Thomas’s surviving children were adults who were precluded under section 768.21(8), Florida Statutes (1997), from seeking such damages in a wrongful death suit....

...As to all of the claims, the trial court dismissed the prayer for damages relating to mental and emotional pain and suffering and lost companionship, guidance, and advice. In granting the motions for partial summary judgment on the medical malpractice claims, the trial court held that pursuant to section 768.21(8), Lucy Thomas could not recover nonpecuniary damages on behalf of the estate....

...DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000). This court conducts a de novo review of a trial court’s order granting partial final summary judgment. Roth v. Bank of Am., N.A., 23 So.3d 765, 766 (Fla. 2d DCA 2009). IV. Neither Section 768.21(8) Nor the Impact Rule Applies to Bar Prayers for Nonpecuniary Damages in Claims for Intentional Misrepresentation....

...omplaint arose only after Mildred Thomas died as a result of alleged medical malpractice, and (2) the claim failed to meet the requirements of the impact rule. Neither of these grounds support the trial court’s decision. First, we acknowledge that section 768.21(8) specifically prohibits adult children from recovering damages for mental and emotional pain and suffering and for loss of parental companionship, instruction, and guidance in wrongful death actions arising out of medical malpractice....

...Rather, the third claim is based on events which occurred after Mildred Thomas’s demise, specifically, the purported cover-up of the real cause of her death and the provision of false information to her family. Thus, to the extent *253 that the trial court relied upon section 768.21(8) to enter partial final summary judgment, such reliance was erroneous....

...None of the children were dependent on their mother for support. One of the sons, as administrator of his mother's estate, brought a wrongful death action against the appellants. The complaint included a claim on behalf of the adult children for net accumulations under Section 768.21(6)(a), Florida Statutes (1975)....

...(5) "Net accumulations" means the part of the decedent's expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of his estate if he had lived his normal life expectancy... . 768.21 Damages....

...xcluding contributions in kind, with interest. If the decedent's survivors include a surviving spouse or lineal descendants, loss of net accumulations beyond death and reduced to present value may also be recovered. The appellants contend that under Section 768.21(6)(a) the lineal descendants named in the complaint were not "survivors" as defined by Section 768.18(1). The appellee argues that the reference to survivors in 768.21(6)(a) is nonspecific and not a definitional use of the term....

...ations to minor children it would have used those terms rather than the words "lineal descendants." The appellants respond by asserting that the scheme for damages under the new act is the concept of dependency rather than age. Thus, they argue that Section 768.21(6)(a) is not intended to limit the recovery of net accumulations to estates with only a surviving spouse or minor children as beneficiaries but rather is intended to cover adult lineal descendants if they were at least partially dependent upon the decedent....

...4th DCA 1977), our sister court recently answered this question adversely to the appellee's position: The adult children of a decedent who are not dependent upon the decedent are not "survivors" under Section 768.18(1); therefore they are not "survivors" under Section 768.21(6)(a)......

...dent's "survivors" and estate, and Section 768.22 envisions a verdict in separate amounts for each "survivor" and the estate. We cannot say that the legislature did not intend the word "survivors" to have the definitional meaning when it was used in Section 768.21(6)(a)....

...shard; Wilbur Reshard, minor son of the decedent, 22 years of age and Thomas Reshard, the decedent’s father. All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, must be identified in the complaint, F.S. § 768.21 (1985)....

...surviving spouse a part of the Wrongful Death Act. ACandS, 703 So.2d at 494 (“[T he surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” (quoting § 768.21(2), Fla....

...of the appellees. The appellants brought a wrongful death suit against the appellees—North Miami Medical Center and various physicians who had treated the decedent. The trial court granted summary judgment for the hospital and physicians, based on section 768.21, Florida Statutes (1995)—part of Florida's Wrongful Death Act—which states in pertinent part: (3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental co...

...for any mental pain and suffering from the date of injury. * * * * * * (8) The damages specified in subsection (3) shall not be recoverable by adult children... with respect to claims for medical malpractice.... The appellants contend on appeal that section 768.21(8) is unconstitutional, as violative of the Equal Protection Clause of both the federal and Florida constitutions. We disagree and hereby affirm the summary judgment for the hospital and physicians. [1] We also certify the following question to the Florida Supreme Court as one of great public importance: DOES SECTION 768.21(8), FLORIDA STATUTES (1995), WHICH IS PART OF FLORIDA'S WRONGFUL DEATH ACT, VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FLORIDA AND FEDERAL CONSTITUTIONS, IN THAT IT PRECLUDES RECOVERY OF NONPECUNIARY DAMAGES BY A *828 DECEDENT'S ADULT CHILDREN [2] WHERE THE CAUSE OF DEATH WAS MEDICAL MALPRACTICE WHILE ALLOWING SUCH CHILDREN TO RECOVER WHERE THE DEATH WAS CAUSED BY OTHER FORMS OF NEGLIGENCE? We are not persuaded by appellants' argument that section 768.21(8) violates the equal protection guarantee of the federal and Florida constitutions....

...e in the appellants' position—adult children of a person who wrongfully died as a result of medical malpractice. Since the right to wrongful death damages is not a fundamental right [4] and those in the appellants' position are not a suspect class, section 768.21(8) would be unconstitutional as a violation of equal protection only if the challenged classification bears no rational relationship to a legitimate state interest....

...edical services. § 766.201, Fla. Stat. (1995). In 1990, the legislature again referred to and discussed the medical malpractice crisis—specifically its adverse impact on the accessibility of health care for Florida residents—during the passage of section 768.21 of the Wrongful Death Act....

...y, upon the accessibility of health care to Florida citizens, whereas wrongful deaths caused by other forms of negligence simply do not impact these "crisis" areas. This distinction is precisely the one upon which the legislature's classification in section 768.21(8) is drawn....

...The fact that the legislature, through chapter 90-14, chose to expand avenues of wrongful death recovery to certain classes of survivors does not mean that it was required to open the door to all classes of survivors. The appellants have failed to overcome the presumption of section 768.21(8)'s constitutionality....

...it must uphold the act if it bears a rational relation to a legitimate government purpose"); In re Estate of Greenberg, 390 So.2d 40, 42 (Fla.1980); 10 Fla. Jur.2d Constitutional Law § 413 (1998). For the aforementioned reasons, we agree with the trial court that section 768.21(8) is constitutional....

...NOTES [1] Our original opinion followed the reasoning and authority set forth in Stewart v. Price, 704 So.2d 594 (Fla. 1st DCA 1997). Because Stewart still pends rehearing, we now issue this opinion, acknowledging a debt to the Stewart Court's rationale. [2] Under section 768.21, the adult children of the decedent only recover nonpecuniary damages, if at all, in instances where the decedent had no surviving spouse. [3] As appellants did not raise a substantive due process challenge to section 768.21(8), either at the trial level or on appeal, we need not address the statute's constitutionality with regard to substantive due process....

...We have considered this argument and find it to be without merit, as did the district court. 18 3. Damages Based on Loss of Prospective Net Estate Accumulations 19 The government challenges the factual findings upon which the district court based the award of damages under the Florida Wrongful Death Act, Fla.Stat. § 768.21(6)(a), which provides a remedy for survivors....

...ith this opinion. REVERSED AND REMANDED. UPCHURCH, C.J., and COBB, J., concur. NOTES [1] The Florida Wrongful Death Act encompasses sections 768.16 through 768.27. [2] See also Cavalier Ins. Corp. v. Bailey, 292 So.2d 67 (Fla. 3rd DCA 1974). [3] See Section 768.21(1) loss of support and services, (4) mental pain and suffering, and (5) medical and funeral expenses, Fla....

...tment of cirrhosis. After Pittman's death, her daughters and co-personal representatives, the appellants, were substituted as plaintiffs and the complaint was amended to include four additional tort claims and a challenge to the constitutionality of section 768.21(8), Florida Statutes (1991)....

...primary expert constitutes harmless error, especially since this case, as many medical malpractice cases, was necessarily a "battle of the experts." See Cenatus v. Naples Community Hosp., Inc., 689 So.2d 302 (Fla. 2d DCA 1997). Constitutionality of Section 768.21(8) Appellants argued below, and renew their argument on appeal, that section 768.21(8), Florida Statutes (1991), is unconstitutional on its face and as applied. Section 768.21(8) provides that adult children cannot recover damages pursuant to section 768.21(3) "for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury" when liability is premised on a claim for medical malpractice as defined in section 766.106(1). Because the lower court found that Pittman's death was the result of cancer and not as a result of some of her other ailments, if the estate could establish medical negligence in the failure to diagnose the cancer, under section 768.21(8), the estate would be entitled to damages only for lost earnings, loss of the net accumulations of the estate, medical and/or funeral expenses which have become a charge against the estate. Pittman's claim for her pain and suffering are not recoverable under the wrongful death statute. [2] We do not find persuasive, however, appellants' arguments that section 768.21(8) denies the federal and state constitutional guarantee of equal protection of the laws and due process or infringes upon the state constitutional guarantee of access to courts....

...t, was not entitled to recover damages for the wrongful death of a parent. U.S. v. Durrance, 101 F.2d 109 (5th Cir.1939); Louisville & N.R. Co. v. Jones, 45 Fla. 407, 34 So. 246 (1903). Prior to the enactment of chapter 90-14, Laws of Florida, under section 768.21(3) only minor children could recover damages for their pain and suffering upon the wrongful death of a parent. See Weimer v. Wolf, 641 So.2d 480 (Fla. 2d DCA 1994). In chapter 90-14, the legislature amended section 768.21(3), among other things, to expand the definition of "survivors" who may recover for the wrongful death of a parent....

...Had the legislature eliminated an existing remedy, we would be required to employ a different constitutional analysis. See Kluger v. White, 281 So.2d 1 (Fla.1973). Because no statutory or common law right existed for the adult children of persons who wrongfully died as a result of medical malpractice, however, section 768.21(8) may be declared an unconstitutional denial of equal protection only if it bears no rational relationship to a legitimate state objective....

...nsurance costs. See § 766.201(1), Fla. Stat. (1995). [4] Chapter 90-14 closed no courthouse doors. Rather, it opened, albeit only for some, those doors by creating a limited right of recovery where no recovery had previously existed at all. We find section 768.21(8) constitutes therefore neither a denial of due process nor a denial of access to courts....

...[5] Accordingly, we affirm in part, reverse in part, and remand for a new trial. WOLF, J., concurs. BENTON, J., concurs with written opinion. BENTON, Judge, concurring. Inasmuch as no liability had been found, it was unnecessary for the trial court to reach the question of the constitutionality of section 768.21(8), Florida Statutes (1991)....

...the claimant, the wrongful death statute specifically limits the category of damages recoverable by a decedent's estate. § 768.20, Fla. Stat.; see Martin v. United Sec. Serv., 314 So.2d 765 (Fla.1975). [3] We address the constitutional challenge to section 768.21(8), Florida Statutes (1991), because of the reasonable possibility that on remand the question of damages will be addressed....

...heir own losses, separate from their departed loved-one. The estate of the decedent, in any action it might bring against the tort-feasor is entitled to recover for medical expenses, so it is against those proceeds the hospital lien can only attach. § 768.21(6)(b), Fla....

...dent and the period of minority, in the case of healthy minor children, may be considered. (2) The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury. § 768.21, Fla....

...The common law rule merely limits the circumstances for when the surviving spouse may recover “consortium-type” damages under the wrongful death statute for the “decedent’s companionship and protection and for mental pain and suffering from the date of injury.” § 768.21(2), Fla....

...r consortium damages if the surviving spouse was not married to the decedent prior to the date of the decedent’s injury. The definition of “survivor” in the statute is limited to familial relationships only, and both subsections (1) and (2) of section 768.21 clearly provide that damages are recoverable from the date of “injury.” §§ 768.18(1), 768.21(1)-(2), Fla....

...Super. Ct. Aug. 14, 1992). . We do not express any comment regarding other damages recoverable under the Wrongful Death Act such as recovery for medical and funeral expenses and other damages recoverable by an estate’s personal representative. See § 768.21(3)-(6), Fla....

...Under Florida statutory law in effect at the time of Anthony's death, the father of a minor child was entitled to recover in a wrongful death action for the parents' pain and suffering experienced as a result of the child's death. See Fla.Stat.1972, § 768.03. By a later statute, Fla.Stat.1973, § 768.21, (which applies to deaths occurring on and after 1 July 1972) the right to recover for mental pain and suffering by reason of another's death has been expanded, but not to the point of encompassing the claim made herein by Tina for her mental distress occasioned by the death of a brother....

...(b) Loss of future support and services. (c) Pain and suffering of the parents of the unborn child. We must determine whether these types of damages are recoverable for the wrongful death of a viable, unborn child. First we will consider the claim for medical and funeral expenses. Section 768.21(5) provides that damages may be awarded for: "Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them." It is conceivable that the unborn Miller child prior to its death may ha...

...This is in keeping with the legislative intent of the "Florida Wrongful Death Act" to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. § 768.17. A different situation exists as to plaintiffs' claim for future loss of services and support. Section 768.21(1) allows a survivor to recover the value of: "......

...In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered." § 768.21(1) In our opinion future loss of services and support is not an allowable element of damage for the wrongful death of a viable, unborn child....

...Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425, 15 A.L.R.3d 983 (1966). Plaintiff's claim for future loss of support and services should be struck. *642 In considering the claim for pain and suffering of the parents of the unborn child we must construe § 768.21(4), which provides: "Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury." The key wording in this section is "minor child." Section 768.18(2), Florida Statutes (1973), Definitions, s...

...that in the "peculiar language" of that statute a stillborn fetus was not within that unique statutory classification. Under the current wrongful death statutes, which represent a new departure on the entire subject, the element of damage created by § 768.21(4) is merely a statement of one of the modes of recovery available once the right of action has been established under § 768.19....

...We do not believe that a restrictive judicial interpretation of the term "minor child" as once used in a defunct statute must forever restrict the meaning of this term when it is used in a new, improved statute. We therefore conclude that the intent of the Legislature in enacting § 768.21(4), which happens to include the term "minor child", cannot be determined simply by reference to former § 768.03 and to a judicial opinion interpreting that now repealed statute....

...The provisions of the Florida Wrongful Death Act show a methodical approach to reasonable limitation of a tortfeasor's liability. The right of recovery is made to depend upon the closeness of the survivor's relationship to the deceased. The use of the qualifying word "minor" in § 768.21(4) recognizes the increasing detachment of children from parents with advancing maturity and provides a cut-off point beyond which a wrongdoer's liability for the mental suffering of those related to his victim may not be stretched....

...s whose child dies after birth. In view of the legislative mandate that this statute is remedial and shall be liberally construed we hold that the Legislature intended to include a viable, unborn child within the meaning of the term "minor child" in § 768.21(4)....

...Kendall United Methodist Church, 476 So.2d 289, 290 n. 2 (Fla. 3d DCA 1985). b. Even on the merits, however, the contention is incorrect. The monetary value of the intangible losses to a child of his or her father's companionship and parental influence, see 17 Fla.Jur.2d Death § 41 (1980); § 768.21(3), Fla....

...The plaintiff contends that the trial court erred in denying the motion for new trial on the issue of the children's damages. We agree. Under the Florida Wrongful Death Act, both Janet and Gerald are considered minor children. See § 768.18(2), Florida Statutes (1995). Pursuant to section 768.21(3), Florida Statutes (1995), a minor child may "recover for lost parental companionship, instruction, and guidance and for mental pain and suffering...." In the instant case, there was substantial, undisputed, and unrebutted testimony...

...State Farm Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992)). [2] Plaintiffs suggest another difference, that in a wrongful death action net accumulations are recoverable; however, they are not recoverable for the death of a minor child. § 768.21(6)(a)2, Fla....

...(quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525, 542 , 92 L.Ed. 746 (1948)). We first address Hiatt’s complaint that the $100,000 award for her noneco-nomic damages is inadequate. Damages of this sort are compensable under section 768.21(2) of the Florida Wrongful Death Act, which provides: “The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” Fla.Stat. § 768.21(2) (1986)....

...at “[e]ach survivor may recover the value of lost support and services from the date of the decedent’s injury to his death, with interest, and future loss of support and services from the date of death and reduced to present value.” Fla. Stat. § 768.21 (1) (1986)....

...arded the estate $419,456. This award was authorized by section 768.-21(6)(a) of the Florida Wrongful Death Act, which provides that the estate’s personal representative may recover “the loss of prospective net estate accumulations.” Fla.Stat. § 768.21(6)(a) (1986)....

...Accordingly, applying Lindsay , we hold that the district court did not err in holding that the personal representative of Hiatt’s estate is .not entitled to recover estate taxes paid, the loss of the use of that money, or the loss of appreciation on the land sold to pay the taxes, as part of lost net accumulations under section 768.21(6)(a) of the Florida Wrongful Death Act....

...The current statute requires the personal representative of the decedent to bring the action, "who shall recover for the benefit of the decedent's survivors." § 768.20, Fla. Stat. (1981). Each beneficiary must be specifically identified in the complaint, § 768.21, Fla....

...The FAA is responsible for 40% of the damages that resulted from its controller’s breach of the duty of care. D. Damages Because Mr. Zinn was survived by a lineal descendant, Randi Zinn, the Estate of Michael Zinn is entitled to recover wrongful death damages under Fla. Stat. § 768.21 (6), which provides that the decedent’s personal representative may recover the following for “loss of prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present...

...gful death statute, Fla. Stat. § 768.18 , and best reflects a credible and reliable damage assessment that gives the estate the benefit of unrealized salary income and capital gains that were lost at Zinn’s death. Moreover, pursuant to Fla. Stat. § 768.21 (3), Randi Zinn may recover for lost parental companionship, instruction, and guidance....

...limitation or cross referencing the paternity statute. [3] Some examples of court proceedings that could establish the identity of a child's father would include: a father or a child's right to recover civil damages under the wrongful death statute, section 768.21(4), Florida Statutes; a father's financial responsibility for a juvenile placed in detention under section 985.215(6), Florida Statutes; and a father's potential criminal liability for his minor child's unsupervised possession of a firearm under section 790.22(4), Florida Statutes....

...paradoxical indeed if one could avoid the bar of interspousal immunity merely by divorcing one's spouse before bringing the suit. We turn next to the claim on behalf of the surviving father for medical and funeral expenses paid by him. Although, as Section 768.21(5) expressly provides, the father would ordinarily be entitled to recover these expenses from any tortfeasor, the doctrine of interspousal immunity prevents him from recovering, as in essence the present claim seeks to do, these expenses from his spouse....

...In the present case, it is clear that the medical and funeral expenses have depleted the family assets, [5] and, consistent with Ard, we hold that the estate may recover these expenses in an action against the mother up to the limits of the mother's liability insurance. See § 768.21(6)(b), Fla. Stat. (1981) (permitting recovery of medical or funeral expenses that have become a charge to the estate excluding those recoverable under Section 768.21(5))....

...] Survivors, as defined in Section 768.18(1), including parents, are entitled to recover "the value of lost support and services from the date of the decedent's injury to his death ... and future loss of support and services from the date of death," § 768.21(1), Fla. Stat. (1981), and "medical or funeral expenses due to the decedent's injury or death" where paid by the survivor, § 768.21(5), Fla. Stat. (1981). Additionally, "[e]ach parent of a deceased minor child may also recover for mental pain and suffering from the date of injury." § 768.21(4), Fla. Stat. (1981). [3] These claims were brought pursuant to Section 768.21(6), which provides: "(6) The decedent's personal representative may recover for the decedent's estate the following: "(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest....

...ere [was] no longer any marital unit to preserve," id. at 794, while in the present case, despite the death of the child, there is still a familial unit to preserve. [6] Although the complaint seeks on behalf of the estate loss of net accumulations, Section 768.21(6)(a) permits this recovery only if, as is not the case here, the decedent has a surviving spouse or lineal descendants, or the decedent is not under the age of 25.

...City of Jacksonville, 82 So.2d 131 (Fla. 1951); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2d DCA 1976). The personal representative of the estate of the deceased is authorized to institute such an action. Section 768.20, Florida Statutes (1977). Section 768.21, Florida Statutes (1977) reads in part as follows: "All potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged." (emphasis added)....

...(1997), and creates a private right of action for deprivation of a nursing home resident's statutory rights. Id. § 400.023(1). The personal representative determined that the only damages recoverable under the Wrongful Death Act would be minimal, consisting of burial expenses, see id. § 768.21, and dropped the wrongful death claim....

...Goff recovered in that action. On June 26, 2003, Mr. Goff died from his injuries before his personal injury action went to trial. Thereafter, the personal representative of the Estate, Gregory Allen Goff, Sr., filed a third-amended complaint pursuant to section 768.21, Florida Statutes (2001), [1] asserting claims on behalf of the Estate, including a claim for loss of earnings, and claims on behalf of the survivors, the parents of Gregory Allen Goff, Jr....

...cedent's survivors and for the estate. The personal representative must bring a single action to recover damages for all beneficiaries. Damages are to be awarded to the survivors and to the estate in accordance with the parameters of recovery set by section 768.21. Cont'l Nat'l Bank v. Brill, 636 So.2d 782, 784 (Fla. 3d DCA 1994) (citations omitted). Further, the recovery of damages by the survivors is distinct and separate from the recovery of damages by an estate under section 768.21....

...n are for their sole benefit and that creditors of the estate may not settle their claims against the survivors' recovery. See Scott v. Estate of Myers, 871 So.2d 947, 948-49 (Fla. 1st DCA 2004) (recognizing that the damages allowed the estate under section 768.21 are separate and distinct from those recoverable by the survivors and that "estate debts cannot be recovered from wrongful death proceeds recovered for survivors"); In re Estate of Barton v....

...llees' child for meningitis. Appellant contends that the trial court improperly excluded evidence of the deceased child's possible decreased life expectancy and quality of life due to meningitis, assuming that the child had lived. We affirm. THE LAW Section 768.21, Florida Statutes, provides for damages for wrongful death: 768.21....

...International Union of Operating Engineers, 349 So.2d 622 (Fla. 1976). Under the wrongful death act, there are only three elements of recoverable damages for an estate: 1) loss of earnings, 2) loss of net accumulations, and 3) funeral expenses. See § 768.21, Fla....

...This rule is as applicable to the determination of damages as it is to the determination of the proper statute of limitations in a § 1983 case, which was the issue before the court in Wilson . . See Ala.Code § 6-5-410; Ga.Code §§ 51-4-1 and 51-4-5; Fla.Stat.Ann. § 768.21....

...ng with prejudice her action against the defendants, Font Corporation and Robert James Custer. Although we must affirm this dismissal, the legislature may wish to reconsider the concept of a "surviving spouse" for purposes of the Wrongful Death Act, section 768.21(3), Florida Statutes (Supp....

...[1] The Schindlers are survived by three adult daughters. Mary E. King, as personal representative of both estates, filed a consolidated wrongful death action. She requested damages for lost parental companionship [2] on behalf of the three adult daughters in both the mother's and the father's action. Section 768.21(3), Florida Statutes (Supp....

...An action for wrongful death is to be brought by a decedent's personal representative, who recovers for the benefit of the decedent's survivors and estate. See § 768.20. The definition of "survivor" includes a decedent's parents. See § 768.18(1). Section 768.21(4) states that each parent of a deceased minor child may recover for mental pain and suffering from the date of the injury....

...iving mother of deceased, Agnes L. Reutimann." The new Florida Wrongful Death Act merged the survival action for personal injuries and the wrongful death action into one lawsuit. Fla. Stat. § 768.20 specifies who may bring the action and Fla. Stat. § 768.21 specifies the items of damage which may be recovered....

...His parents are his only survivors as defined by § 768.18(1), Fla. Stat., F.S.A. The following question, which the trial judge certified for our determination, was presented: WHERE DECEDENT WAS OVER 21, UNMARRIED, LEFT NO CHILDREN AND NO ONE DEPENDENT ON HIM, CAN HIS PARENTS RECOVER NET ACCUMULATIONS UNDER § 768.21(6)(a)? or ARE PARENTS OF A DECEASED ADULT LINEAL DESCENDANTS WITHIN THE MEANING OF § 768.21(6)(a)? We reply in the negative....

...degree. The term is the opposite of `ascendant. [1] '" [emphasis supplied] Thus, it is abundantly clear that the parents of a deceased adult are ascendants and therefore we conclude they cannot be considered lineal descendants within the meaning of § 768.21(6)(a)....

...sive as to shock the judicial conscience). Only noneconomic damages were awarded in the present case. Recovery was authorized “for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.” § 768.21(3), Fla....

...The Act provides that an action thereunder "shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death." § 768.20, Fla. Stat. (emphasis added); see also id. § 768.21 ("All potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint.....

...The Act provides that "[t]he decedent's personal representative may recover for the decedent's estate" certain items of damages, including "[m]edical or funeral expenses due to the decedent's injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent." Id. § 768.21(6)(b)....

...That being said, the parameters of those potential claims are as follows. First, regardless of the underlying basis for the wrongful death claims, the only damages that may be recovered on those claims are those types of damages that are recoverable on behalf of an estate as set forth in section 768.21, Florida Statutes....

...This argument is erroneous as a matter of law. It is true that in a wrongful death action the decedent’s survivors may recover the value of future loss of support and services and the decedent’s estate may recover loss of prospective net accumulations. See § 768.21(1), (6), Fla....

...In this instance, the two parties most likely to recover damages are the estate and parents of the decedent. A review of the Wrongful Death Act indicates that the decedent's parents may not maintain a cause of action for the wrongful death of their son. Section 768.21(4), Florida Statutes (1983) allows the parents of a minor child to recover damages for mental pain and suffering, but the victim in this case was not a minor child as defined in section 768.18(2), Florida Statutes (1983). Similarly, the decedent's parents are precluded from recovering damages for lost support and services pursuant to section 768.21(1), Florida Statutes (1983), because they were not wholly or partly dependent upon their son for support and services....

...as part of his estate if he had lived his normal life expectancy. Sec. 768.18(5), Fla.Stat. (1983). First, the estate of a decedent may recover loss of prospective net accumulations if the decedent is survived by a spouse or lineal descendants. Sec. 768.21(6)(a)1, Fla.Stat....

...Second, the estate of an adult decedent may recover loss of prospective net accumulations if the decedent was survived by a distant blood relative who was not dependent upon the decedent for support and services or if the decedent was not survived by spouse, minor children or parents. Sec. 768.21(6)(a)2, Fla.Stat....

...arents who were not dependent upon him for support or services, and who are not otherwise entitled to recover damages for his death in their own right. 8 We answer the question in the affirmative. 9 "The current dispute centers around the wording of section 768.21(6)(a)2, Florida Statutes (1983), which allows the estate of a decedent to recover net accumulations 'if the decedent is not a minor child as defined in s....

...d as defined in section 768.18(2) at the time of death, he did have survivors as defined in section 768.18(1) because parents are included in the class of people defined as 'survivors' under section 768.18(1). Thus, under a strict literal reading of section 768.21(6)(a)2 as urged by appellees, Steven Allen Paul's estate would be precluded from recovering prospective net accumulations....

...10 "Legislative intent must be given effect even though it may contradict the strict letter of the statute. State v. Webb, 398 So.2d 820 (Fla.1981). In order to correctly discern the intent of the legislature, it is necessary to trace the history of section 768.21(6)(a), Florida Statutes (1983). Prior to 1981, section 768.21(6)(a) provided that an estate could recover net accumulations only if the decedent's survivors included a surviving spouse or lineal descendants. In 1981, the legislature amended section 768.21(6)(a) to also allow the estate of a decedent to recover net accumulations: 11 If the decedent is not a minor child as defined in s....

...Although not controlling in this case, we take this opportunity to note that the legislature has since removed any potential questions regarding its intent to allow the estate of an adult decedent who is survived only by non-dependent parents to recover prospective net accumulations by amending section 768.21(6)(a) to provide that the estate of a decedent may recover net accumulations: 14 2. If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent. 15 Ch. 85-260, Laws of Fla. 16 "Appellees argue that we should construe section 768.21(6)(a)2, Florida Statutes (1983) in a strict and literal manner....

...Southeast Volusia Hospital District, 438 So.2d 815 (Fla.1983), appeal dismissed, 466 U.S. 901 , 104 S.Ct. 1673 , 80 L.Ed.2d 149 (1984); Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981); Leeman v. State, 357 So.2d 703 (Fla.1978). As noted previously, a strict literal interpretation of section 768.21(6)(a)2 would create an irrational classification in violation of the equal protection clause. Another reasonable construction of section 768.21(6)(a)2 exists....

...ion 768.18(1), the term 'survivors' means those survivors who can invoke other available remedies authorized by the other provisions of the Wrongful Death Act. This construction is supported by reading section 768.18(1) in pari materia with sections 768.21(1) through (5). Every class of persons defined as 'survivors' in section 768.18(1) is afforded a remedy for wrongful death somewhere in section 768.21(1) through (5)....

...suffering because the deceased was a minor child or parents who could recover because they were dependent upon the child for support or services. Thus, non-dependent parents of an adult child are not survivors under section 768.18, as referred to in 768.21(6)(a)2, because they are not entitled to recover under the other provisions of the Wrongful Death Act....

...(b) Medical or funeral expenses due to the decedent's injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5). (c) Evidence of remarriage of the decedent's spouse is admissible. § 768.21, Fla....

...In a wrongful death action, the personal representative has an obligation to recover damages sustained by both the survivors and the estate. See § 768.20, Fla. Stat. (2001). The types of damages recoverable by the estate and the survivors are enumerated by statute. See § 768.21, Fla....

...Rather, they are the property of the survivors and compensation for their loss. See id. Accordingly, estate debts cannot be recovered from wrongful death proceeds recovered for survivors. See id. Under the wrongful death act, one form of damages a survivor may recover are funeral expenses paid by the survivor. See § 768.21(5), Fla....

...Section 1346, et seq., the proper measure of damages is determined by the law of the state in which the action accrued. The law of the state of Florida applies in this action. CC. The proper measure of damages in this case is found at Florida Statute Section 768.21(6)(a), which allows for recovery by an estate of the lost "net accumulations", in addition to funeral expenses incurred as a result of a decedent's death....

...In addition to "net accumulations", Plaintiffs are entitled to funeral expenses pursuant to Florida's wrongful death statute. Funeral expenses are recoverable by the personal representative of the estate, even when those expenses have been paid by a third party. Florida Statute Section 768.21(6)(b); Sinclair Refining Co....

...uant to sections 766.207(2) and (3), Florida Statutes (2003). The arbitration panel decided that the economic damages recoverable pursuant to sections 766.202(3) and 766.207(7), were not limited to the damages available under the Wrongful Death Act, section 768.21, Florida Statutes. The Hospital argued that under section 768.21, Afonso's economic damages were limited to: (1) medical and funeral expenses; (2) loss of support and services (past and future); and (3) loss of net accumulations of the estate, as defined by section 768.18(5)....

...See Guadalupe; Wiggins; Continental Nat'l Bank, 636 So.2d at 784; University Med. Ctr. v. Zeiler, 625 So.2d 120 (Fla. 5th DCA 1993). When asked to apportion the proceeds of a wrongful death settlement, a court must look to the statute to identify both the "survivors" and the recoverable damages. See §§ 768.18(1), 768.21, Fla.Stat....

...he beneficiaries and assumed that the younger the child, the greater the damages the minor would suffer as a consequence of the wrongful death of the mother. [1] Provisions of the Act also recognize that each survivor has a personal cause of action. Section 768.21(1) provides, "Each survivor may recover ...." and section 768.21(2) provides that "[t]he surviving spouse may also recover...." Lending further credence to the personal nature of the survivor's claims is the provision of section 768.20 which states, "A defense that would bar or reduce a survivor's r...

or to the surviving parent of an adult child. § 768.21(6), Fla. Stat. (2005). If the victim in this case

...Indianapolis Osteopathic Medical Hosp., Inc., 709 F.Supp. 853 (S.D.Ind.1989); see also Brooks v. Maryland Gen. Hosp., Inc., 996 F.2d 708, 714-15 (4th Cir.1993). The unfortunate result in this case, as was correctly held below, is that under the thus applicable exception provided in section 768.21(8), Florida Statutes (1995), [2] , [3] the present plaintiffs have no meaningful EMTALA (or Florida) claim whatever for the death of their adult child even if, as alleged, the defendant hospital violated the statute....

...[2] (8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical malpractice as defined by s.766.106(1). [3] Because there is no contention that section 768.21(8) is itself invalid, cf....

...We do, however, find that the trial court committed reversible error by not reducing the amount of economic damages where the appellees, the plaintiffs in this wrongful death action, failed to prove their entitlement to the economic damages pursuant to section 768.21(6)(b), Florida Statutes....

...the issue of damages here. Unlike Angrand, the expert testimony in this case was not merely offered as expert testimony in the area of grief and bereavement, but was specialized testimony from the plaintiffs' treating psychologist. Economic Damages Section 768.21, Fla....

...Appellants argue that appellees are entitled to nothing because neither appellees nor the estate has incurred any obligation. We find both positions to be in error. Prior to reaching the collateral source issue, a plaintiff in a wrongful death action must present evidence of damages pursuant to sections 768.21(5) and (6), Florida Statutes....

...We determine that the $425,824.42 paid by the insurance providers constituted medical expenses paid on behalf of the decedent. See Johnson v. Deangelo, 448 So.2d 581 (Fla. 5th DCA 1984). Therefore, the amount paid by the insurance providers does constitute damages as provided by section 768.21(6)(b)....

...vailable against the parent only to the extent of insurance coverage). See also Woods v. Withrow, 413 So.2d 1179 (Fla. 1982). Here, there was no insurance coverage. However, in this case suit was instituted by the appellants in their own right under section 768.21, Florida Statutes, (wrongful death statute) and not on behalf of the child....

...In closing argument, plaintiff's counsel requested that the jury award the family this total amount and that the jury indicate its award by placing the $448,000 figure in the blank on the verdict form for the estate. This the jury did. Although economic damages are not part of an estate award, see § 768.21(6) Fla....

...Logically then, the separate award made to each of the decedent's survivors did not include economic damages but represented compensation for pain and suffering as well as loss of the decedent's companionship to the widow and loss of parental guidance to the children. See § 768.21....

...pport for the two younger children and for $10,599 for medical expenses. The jury had deducted $10,599 from its award for medical and funeral expenses because a credit was allowed on the decedent's hospital bill for removal of the decedent's organs. Section 768.21(6)(b), Florida Statutes (1993) allows the personal representative to recover medical or funeral expenses due to a decedent's injury or death....

surviving spouse, surviving minor child, or both. § 768.21(1)-(3), Fla. Stat. (permitting recovery for loss

...surviving spouse, children, and dependents of the decedent") (citation omitted). The Act is remedial in nature and must be liberally construed. § 768.17, Fla. Stat. The personal representative sought to recover damages on behalf of Javon under *911 section 768.21, Florida Statutes, which permits a survivor to recover for loss of services and allows a minor child to recover damages for loss of parental companionship as well as mental pain and suffering....

...72-35, § 1, Laws of Fla. (codified at § 768.18(2), Fla. Stat. (Supp. 1972)). "Survivors" included minor children and dependent relatives. § 768.18(1), Fla. Stat. (Supp. 1972). Minor children were entitled to receive damages for pain and suffering. § 768.21(3), Fla. Stat. (Supp. 1972). The estate could recover net accumulations only if the decedent's "survivors" included a spouse or lineal descendants. § 768.21(6)(a), Fla....

...se or lineal descendant or when the decedent was not a minor child as defined in section 768.18(2), neither support nor services were recoverable under subsection (1), and there was a surviving parent. [1] Ch. 85-260, § 1, Laws of Fla. (codified at § 768.21(6)(a)2., Fla....

...Lehman's personal representatives rely extensively on Vildibill and encourage this court to liberally construe the Wrongful Death Act in favor of the two adult children. In Vildibill, the supreme court interpreted the 1981 version of the Act and construed "survivor," in section 768.21(6)(a), to mean a survivor who was entitled to some other remedy under the Act....

...After careful review of Florida law, we conclude that these questions are unanswered by controlling precedent of the Supreme Court of Florida. 7 Although Florida law allows parents to recover for their mental pain and suffering from the wrongful death of a child, Fla.Stat. § 768.21(4) (1991), no statute provides them a remedy for "loss of their child's companionship, society and affections" when the child's injury does not lead to death....

...11, 422-425 §§ 3[a]-3[b] (1978 & Supp. 1994). [12] Illinois, South Dakota, and Tennessee have enacted statutes which allow a cause of action for wrongful death of a fetus, a viable fetus, and an unborn child, respectively. [13] F.S. 768.18. [14] F.S. 768.21....

...Burke, 858 F.Supp. at 1183. State wrongful death claims, made on behalf of an estate, may have a sufficient connection with or reference to an employee benefit plan's reimbursement provision to be completely preempted by ERISA. Here, Florida Statute section 768.21(6)(b) allows *1301 an estate to recover damages for "medical expenses." The estate's settlement of the wrongful death claim resulting from Green's injuries is sufficiently "connected with" the Plan's right to reimbursement for any medical expenses paid on her behalf under the Plan....

...t plan. Separate and Independent Claims As to Thomas' second argument that the Plan may only recover as to Green's estate and not as to the survivors, since the survivors have separate and independent claims, this Court disagrees. Thomas argues that section 768.21(6)(b) of the Florida Statutes allows a personal representative to recover, "medical or funeral expenses due to the decedent's injury or death that have become a charge against her or his estate or that were paid by or on behalf of dece...

...As a result of the defendant's employee's negligence the estate of William C. England suffered damages totaling $7,660.00 and Norma Karleen England, as surviving spouse of William C. England, suffered damages totaling $67,590.00 for those injuries recoverable under Florida Statute section 768.21....

...ct to the limiting formula in section 409.910(11)(f). Admittedly, the settlement in this case occurred in the context of a wrongful death action in which the recoverable damages for the survivors and the decedent's estate are distinct and limited by section 768.21, Florida Statutes (2003)....

...We first address whether the trial court erred in dismissing the counts against the hospital. In dismissing count one, the trial court reasoned that the deceased's adult children were prevented from bringing a cause of action under the Wrongful Death Act for the hospital's medical malpractice because section 768.21(8), Florida Statutes (2005), prevents children over the age of twenty-five from recovering damages for medical malpractice that results in a parent's death. We affirm this ruling based on Mizrahi v. North Miami Medical Center, Ltd., 761 So.2d 1040 (Fla.2000), which held that section 768.21(8) does not violate the Equal Protection Clause by precluding recovery by a decedent's adult children where the cause of death was medical malpractice....

...Weekly S397[, 749 So.2d 490] (Fla. August 26, 1999). Such an order granting a new trial must give reasons from the record to support *1025 those conclusions. Hawk v. Seaboard System R.R. Inc., 547 So.2d 669, 671 (Fla. 2d DCA 1989). Under Florida Statutes § 768.21( l ) and (4), parents of a deceased minor child may recover for lost support and services and for mental pain and suffering....

...ld’s behalf. The child’s recovery may include damages for loss of support and services determined in part by her relationship with her mother, “lost parental companionship, instruction, and guidance[,] and for mental pain and suffering.” See § 768.21(1), (3), Fla....

...Nursing home claims under chapter 400, Florida Statutes, however, do not constitute claims of medical malpractice. § 400.023(7), Fla. Stat. ("An action under this part for a violation of rights or negligence recognized herein is not a claim for medical malpractice, and the provisions of section 768.21(8) do not apply to a claim alleging death of the resident."); Integrated Health Care Servs., Inc....

...ence demonstrates that the highest court would conclude otherwise.” Id. (citations omitted). For the reasons discussed herein, the Court finds that there is persuasive evidence, including the legislative intent of the Wrongful Death Act (Fla.Stat. § 768.21), that the Florida Supreme Court would allow an Engle Smoker’s personal representative to amend the Smoker’s personal injury complaint to state a cause of action under the Act....

...Beverly Enter.Fla., Inc., 898 So.2d 1, 9 (Fla.2004) (“Damages are limited to the survivor’s loss of support and services, companionship, and his or her own pain and suffering. The estate may also recover loss of earnings of the deceased and medical and funeral expenses.”) (citation omitted); Fla. Stat. § 768.21 ....

...a new complaint in a new lawsuit defies all logic and, while perhaps a boon to the judicial coffers from the standpoint of filing fees, would create a needless administrative *1231 hoop that is not contemplated by the Act. See Fla. Stat. §§ 768.19-768.21 ....

...though the focus shifts from the decedent’s damages to the survivors' damages (e.g., the decedent's damages for pain and suffering are replaced with his or her survivors’ damages for pain and suffering). Martin, 314 So.2d at 768-69 ; Fla. Stat. § 768.21 ....

...] [her] normal life expectancy. NOTE ON USE FOR 502.2b The estate may recover lost accumulations when the sole survivor is a parent without a cause of action in his or her own right, as well as when survivors include a spouse or lineal descendant. F.S. 768.21(6)(a) (1985); Vildibill v....

...In determining the duration of the losses, you may consider the [joint life expectancy of (decedent) and (surviving spouse) ] [life expectancy of (surviving spouse) ] together with the other evidence in the case. NOTES ON USE FOR 502.2d 1. F.S. 768.18 and 768.21 (1990), applicable to causes of action accruing after October 1, 1990, expand eligible survivor claimants in wrongful death actions by surviving parents and children, but are not applicable to claims for medical malpractice as defined by F.S....

...CSX Transportation, Inc., 586 So.2d 1247, 1252 (Fla. 1st DCA 1991). “It follows, from the fact that the plaintiff can amend to reflect his capacity as personal representative, that claims for damages which are properly recoverable by the personal representative under section 768.21(6), Florida Statutes (1981) will also relate back.” Talan, 443 So.2d at 209 (claim was not time-barred where father brought wrongful death action without being appointed personal representative and, after statute of limitations ran,...

...sis that Plaintiff's claims for damages for the deceased minor's pain and suffering, mental anguish, loss of capacity for life, and similar remedies that are available only prior to the minor's death, are impermissible prayers for relief pursuant to Section 768.21 of the Florida Statutes....

interests were provided for by that section and section 768.21, Florida Statutes (1987) which enumerates the

...1951); see also Conner, 235 So. 2d at 498. .... All other adult children who lose their parents as a result of other negligent conduct have the right to recover pain and suffering damages if their parent died without a spouse. See § 768.21(8), Fla. Stat....

...2d 1040 (Fla. 2000). In Mizrahi, this Court employed the rational basis test and explained that “the Legislature referred to and discussed the medical malpractice crisis and its adverse impact on the accessibility of health care during the passage of section 768.21.” Id....

rather than from the date of his death. Fla.Stat. § 768.-21 (Supp.1972). The DOHSA, of course, contains no

...Vildibill, and his natural father, Charles Eugene Paul, Sr. 7 As personal representative of Paul's estate, Vildibill brought this wrongful death action seeking recovery of the estate's loss of prospective net accumulations under Fla.Stat.Ann. Sec. 768.21(6)(a). ** Section 768.21(6)(a) provides: 8 (6) The decedent's personal representative may recover for the decedent's estate the following: 9 (a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest....

...spouse or lineal descendants; or 11 (2) If the decedent is not a minor child as defined in s. 768.18(2) and does not have survivors as defined in s. 768.18(1). 12 Vildibill contends that the state of Florida did not intend to preclude recovery under section 768.21(6)(a) in a case such as this. She asserts that the state's intent in amending section 768.21(6)(a) to include subsection (2) was to permit the estate of a deceased adult to recover damages so long as there were no survivors who would be entitled to recover damages in their own right. 13 Paul is survived only by his parents, neither of whom was dependent upon him for support or services, or is otherwise entitled to recover damages in their own right for his death. 14 We believe that the issue of whether the reference in section 768.21(6)(a)(2) to "survivors" means only "survivors" who were dependent upon the decedent, is appropriate for resolution by the highest court of the state of Florida....

...between the Florida Medicaid Act with the Wrongful Death Act: [T]he settlement in this case occurred in the context of a wrongful death action in which the recoverable damages for the survivors and the decedent’s estate are distinct and limited by section 768.21, Florida Statutes (2003)....

...The Estate provided evidence at the hearing on its motion that the net amount from the settlement was approximately $327,000, of which 3.5% would be $11,469.26. The Estate therefore argued that the Medicaid lien should be reduced to that amount. . § 768.21, Fla....

...he act, Fla. Stat. § 768.19 , which incltide economic losses of the estate (both pre-death and prospective net earnings) and economic and emotional losses of the decedent’s survivors (including the survivors’ own pain and suffering), see id. §'768.21....

...Because a decedent’s post death lost enjoyment of life is not a compensable injury under the FWDA, these damages are not available under § 1983. See Brown v. Seebach, 763 F.Supp. 574, 583 (S.D. Fla. 1991) (“Hedonic damages are not made a part of Fla. Stat. § 768.21 .”)....

....The FWDA permits recovery of economic damages to the estate when personal injury results in death but does not allow recovery *1329 for the decedent’s pre-death pain and suffering or hedonic damages. The FWDA provides for damages, including pain and suffering damages suffered by survivors, as specified in Fla. Stat. § 768.21 , but no survivors are claiming damages in this suit....

...See Capone v. Phillip Morris USA, Inc., 116 So.3d 363, 376-77 (Fla. 2013). . Also,, the FWDA does not provide for recovery of hedonic damages. See Brown v. Seebach, 763 F.Supp. 574, 583 (S.D. Fla. 1991) ("Hedonic damages are not made a part of Fla. Stat. § 768.21 .”)....

...urvivors' mental pain and suffering from the date of injury; and the estate may recover economic loss of earnings before death and prospectively, if the decedent left a spouse, child, or parent, as well as medical or funeral expenses. See Fla. Stat. § 768.21 (1), (2), (6)....

...Count IV is a claim of misrepresentation regarding the quality of medical benefits provided by Health Options. Count V is for breach of express warranty, and Count VI alleges breach of Health Options' covenant of good faith and fair dealing. All counts are brought pursuant to the Florida Wrongful Death Act, Fla. Stat. § 768.21....

...llows: As surviving spouse and personal representative, Mrs. Barlow was entitled to recover the loss of prospective net accumulations, which might reasonably have been expected but for Mr. Barlow's wrongful death, reduced to present money value. See § 768.21(6)(a), Fla....

...r day to day needs). On this record, no error has been shown. Id. (emphasis supplied). Mrs. Barlow sought review in this Court, arguing that the First District's reliance on the definition of "net accumulations," found in the Wrongful Death Act, see § 768.21(6)(a), Fla....

...f wage loss and loss of earning capacity. § 766.202(3), Fla. Stat. (2002). In contrast, as noted by this Court in St. Mary's Hospital, "the Wrongful Death Act does not provide claimants with such a full range of economic damages." 769 So.2d at 973. Section 768.21, Florida Statutes (2002), sets forth the damages recoverable under the Wrongful Death Act and provides in pertinent part: (6) The decedent's personal representative may recover for the decedent's estate the following: (a) Loss of earni...

...terest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduce to present money value, may also be recovered: 1. If the decedent's survivors include a surviving spouse.... § 768.21(6)(a) (emphasis supplied)....

...defective—it failed to deploy—and the decedent would have survived but for the defect. The damages plaintiff sought were the following. On behalf of the survivors, plaintiff sought to recover damages for mental pain and suffering, as authorized by § 768.21(4), Fla. Stat. (2000). Plaintiff also initially sought to recover for medical and funeral expenses, presumably on behalf of the estate. See § 768.21(6)(b), Fla....

parent. Fla. Stat. § 768.21(3). Funeral expenses also may be awarded. Fla. Stat. § 768.21(5). Economic Damages

under the Florida Wrongful Death Act. See id. § 768.21. And, of course, to the extent the representative

...ent of cirrhosis. After Pittman’s death, her daughters and co-personal representatives, the appellants, were substituted as plaintiffs and the complaint was amended to include four additional tort claims and a challenge to the constitutionality of section 768.21(8), Florida Statutes (1991)....

...mary expert constitutes harmless error, especially since this case, as many medical malpractice cases, was necessarily a “battle of the experts.” See Cenatus v. Naples Community Hosp., Inc., 689 So.2d 302 (Fla. 2d DCA 1997). Constitutionality of Section 768.21(8) Appellants argued below, and renew their argument on appeal, that section 768.21(8), Florida Statutes (1991), is unconstitutional on its face and as applied. Section 768.21(8) provides that adult children cannot recover damages pursuant to section 768.21(3) “for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury” when liability is premised on a claim for medical malpractice as defined in section 766.106(1). Because the lower court found that Pittman’s death was the result of cancer and not as a result of some of her other ailments, if the estate could establish medical negligence in the failure to diagnose the cancer, under section 768.21(8), the estate would be entitled to damages only for lost earnings, loss of the net accumulations of the estate, medical and/or funeral expenses which have become a charge against the estate. Pittman’s claim for her pain and suffering are not recoverable under the wrongful death statute. 2 We do not find persuasive, however, appellants’ arguments that section 768.21(8) denies the federal and state constitutional guarantee of equal protection of the laws and due process or infringes upon the state constitutional guarantee of access to courts....

...s not entitled to recover damages for the wrongful death of a parent. U.S. v. Durrance, 101 F.2d 109 (5th Cir.1939); Louisville & N.R. Co. v. Jones, 45 Fla. 407 , 34 So. 246 (1903). Prior to the enactment of chapter 90-14, Laws of Florida, under section 768.21(3) only minor children could recover damages for their pain and suffering upon the wrongful death of a parent. See Weimer v. Wolf, 641 So.2d 480 (Fla. 2d DCA 1994). In chapter 90-14, the legislature amended section 768.21(3), among other things, to expand the definition of “survivors” who may recover for the wrongful death of a parent....

...Had the legislature eliminated an existing remedy, we would be required to employ a different constitutional analysis. See Kluger v. White, 281 So.2d 1 (Fla.1973). Because no statutory or common law right existed for the adult children of persons who wrongfully died as a result of medical malpractice, however, section 768.21(8) may be declared an unconstitutional denial of equal protection only if it bears no rational relationship to a legitimate state objective....

...insurance costs. See § 766.201(1), Fla. Stat. (1995). 4 Chapter 90-14 closed no courthouse doors. Rather, it opened, albeit only for some, those doors by creating a limited right of recovery where no recovery had previously existed at all. We find section 768.21(8) constitutes therefore neither a denial of due process nor a denial of access to courts....

...the claimant, the wrongful death statute specifically limits the category of damages recoverable by a decedent’s estate. § 768.20, Fla. Stat.; see Martin v. United Sec. Serv., 314 So.2d 765 (Fla.1975). . We address the constitutional challenge to section 768.21(8), Florida Statutes (1991), because of the reasonable possibility that on remand the question of damages will be addressed....

...2024), and “remanded [the appeal] to the district court for reconsideration upon application of the decision in Ripple.” Ripple held that “a spouse who married the decedent after the injury can recover damages as a ‘surviving spouse’ under section 768.21(2).” 385 So....

...In this instance, the two parties most likely to recover damages are the estate and parents of the decedent. A review of the Wrongful Death Act indicates that the decedent's parents may not maintain a cause of action for the wrongful death of their son. Section 768.21(4), Florida Statutes (1983) allows the parents of a minor child to recover damages for mental pain and suffering, but the victim in this case was not a minor child as defined in section 768.18(2), Florida Statutes (1983). Similarly, the decedent’s parents are precluded from recovering damages for lost support and services pursuant to section 768.21(1), Florida Statutes (1983), because they were not wholly or partly dependent upon their son for support and services....

...d left as part of his estate if he had lived his normal life expectancy. § 768.18(5), Fla.Stat. (1983). First, the estate of a decedent may recover loss of prospective net accumulations if the decedent is survived by a spouse or lineal descendants. § 768.21(6)(a)l, Fla.Stat....

...Second, the estate of an adult decedent may recover loss of prospective net accumulations if the decedent was survived by a distant blood relative who was not dependent upon the decedent for support and services or if the decedent was not survived by spouse, minor children or parents. § 768.21(6)(a)2, Fla.Stat....

...parents who were not dependent upon him for support or services, and who are not otherwise entitled to recover damages for his death in their own right. We answer the question in the affirmative. “The current dispute centers around the wording of section 768.21(6)(a)2, Florida Statutes (1983), which allows the estate of a decedent to recover net accumulations ‘if the decedent is not a minor child as defined in s....

...defined in section 768.18(2) at the time of death, he did have survivors as defined in section 768.18(1) because parents are included in the class of people defined as ‘survivors’ under section 768.18(1). Thus, under a strict literal reading of section 768.21(6)(a)2 as urged by appellees, Steven Allen Paul’s estate would be precluded from recovering prospective net accumulations....

...“Legislative intent must be given effect even though it may contradict the strict letter of the statute. State v. Webb, 398 So.2d 820 (Fla.1981). In order to correctly discern the intent of the legislature, it is necessary to trace the history of section 768.21(6)(a), Florida Statutes (1983). Prior to 1981, section 768.21(6)(a) provided that an estate could recover net accumulations only if the decedent’s survivors included a surviving spouse or lineal descendants....

...Although not controlling in this case, we take this opportunity to note that the legislature has since removed any potential questions regarding its intent to allow the estate of an adult decedent who is survived only by non-dependent parents to recover prospective net accumulations by amending section 768.21(6)(a) to provide that the estate of a decedent may recover net accumulations: 2. If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent. Ch. 85-260, Laws of Fla. “Appellees argue that we should construe section 768.21(6)(a)2, Florida Statutes (1983) in a strict and literal manner....

...Southeast Volusia Hospital District, 438 So.2d 815 (Fla.1983), appeal dismissed, 466 U.S. 901 , 104 S.Ct. 1673 , 80 L.Ed.2d 149 (1984); Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981); Leeman v. State, 357 So.2d 703 (Fla.1978). As noted previously, a strict literal interpretation of section 768.21(6)(a)2 would create an irrational classification in violation of the equal protection clause....

...768.18(1), the term ‘survivors’ means those survivors who can invoke other available remedies authorized by the other provisions of the Wrongful Death Act. This construction is supported by reading section 768.18(1) in pari materia with sections 768.21(1) through (5). Every class of persons defined as ‘survivors' in section 768.18(1) is afforded a remedy for wrongful death somewhere in section 768.21(1) through (5)....

well as “their relationships to the decedent.” § 768.21 Fla. Stat. (1995). WDA also specifies the kind

...Santiago and Caceres are the adult surviving children of Ramona Reyes. They filed a two-count complaint against Rodriguez in which they alleged that Reyes's death was caused by Rodriguez's medical negligence and sought a declaration regarding the constitutionality of section 768.21(8), Florida Statutes (2017)....

...of a parent. Rodriguez moved to dismiss the complaint on two grounds: that the four-year statute of repose applicable to medical malpractice actions under section 95.11(4)(b), Florida Statutes (2017), had expired and that the action was barred by section 768.21(8). Following a hearing, the circuit court granted the motion and dismissed both counts with prejudice. The circuit court did not set forth its reasons for the dismissal, but we note that Rodriguez's motion to dismiss...

...As such, the face of the complaint did not conclusively show that the action was barred under the statute of repose and dismissal on that ground was not supported. Vis-a-vis the other issue in this case, Santiago and Caceres maintain that the class limitation created by section 768.21(8) violates the equal protection guarantees of the Florida and United States constitutions....

...ion, and which exclusion is rationally related to controlling healthcare costs and accessibility, does not violate the equal protection guarantees of either the United States or Florida Constitutions." 761 So. 2d at 1043. The court concluded that section 768.21(8)'s limitation on who can recover noneconomic damages bore a rational relationship to a legitimate state interest in -4- limiting increases in medical insurance costs, which the legislature found was a consequence of an ongoing medical malpractice crisis....

...us discrimination between medical malpractice victims." Id. at 59. Santiago and Caceres contend these later declarations that there is no evidence of an ongoing medical malpractice crisis must undermine Mizrahi's decision to uphold section 768.21(8) premised on the existence of such a crisis....

...(and later Kalitan) raised different equal protection concerns than did the class limitation at issue in Mizrahi. 134 So. 3d at 903–04. McCall's and Kalitan's discussions of the medical malpractice crisis therefore did not directly abrogate Mizrahi on the issue of whether section 768.21(8) violates equal protection. Moreover, we are bound to follow Mizrahi even if the supreme court's subsequent decisions in related cases suggest that it might decide the case differently if it were to address the issue today....

...rth by this Court"). We follow that path here. Mizrahi expressly decided the constitutional question that Santiago and Caceres raise in this case, and it continues to be binding precedent. Pursuant to that decision, we declare that section 768.21(8) is valid as against the equal protection claims asserted here....

...-7- and irrational legislation." 134 So. 3d at 913. McCall and Kalitan suggest that such is the case with respect to the medical malpractice crisis that, according to Mizrahi, formed the constitutional underpinning of section 768.21(8)....

...IN LIGHT OF THE SUPREME COURT'S DECISIONS IN ESTATE OF McCALL v. UNITED STATES, 134 SO. 3D 894 (FLA. 2014), AND NORTH BROWARD HOSPITAL DISTRICT v. KALITAN, 219 SO. 3D 49 (FLA. 2017), DOES SECTION 768.21(8), FLORIDA STATUTES, VIOLATE THE EQUAL PROTECTION GUARANTEES OF THE UNITED STATES AND FLORIDA CONSTITUTIONS, NOTWITHSTANDING THE COURT'S PRIOR DECISION ON THE ISSUE IN MIZRAHI v....

...NOTE ON USE FOR 502.2b The estate may recover lost accumulations when the sole survivor is a parent without a cause of action in his or her own right, as well as when survivors include a spouse or lineal descendant. F.S. 768.21(6)(a) (1985); Vildibill v....

...In determining the duration of the losses, you may consider the [joint life expectancy of (decedent) and (surviving spouse)] [life expectancy of (surviving spouse)] together with the other evidence in the case. NOTES ON USE FOR 502.2d 1. F.S. 768.18 and 768.21 (1990), applicable to causes of action accruing after October 1, 1990, expand eligible survivor claimants in wrongful death actions by surviving parents and children, but are not applicable to claims for medical malpractice as defined by F.S....

...al injury shall survive, and any such action pending at the time of death shall abate.”). Indeed, as Reynolds notes, a wrongful death action involves “its own limitations period, § 95.11(4)(d), Fla. Stat., [and] its own panoply of remedies, § 768.21, Fla....

...at 767 (explaining that the new Act had consolidated “two separate and independent causes of action” (emphasis added)). At most, Martin stands for the proposition that, although not enumerated in the list of damages recoverable in a wrongful death action, see § 768.21, Fla....

...er whether her claim was governed by the 1999 amendments. It is. 3 3. To the extent Mrs. Sheffield can be said to argue that a wrongful death action potentially involves causes of action of the enumerated survivors and of the decedent, see § 768.21(6), Fla. Stat....

accident and his death, our Wrongful Death Act, section 768.21, Florida Statutes was amended to provide that

...Following the settlement of a wrongful death action on behalf of the estate of the decedent, Jeremy C. Woods, a minor, the proceeding became a contest between the competing natural parents as to the proper allocation of the sums available as a result of the claim of mental pain and suffering. See § 768.21(4)Fla....

children’s claims. The Florida Wrongful Death Act, section 768.21, Florida Statutes (1981) provides: 768.21 Damages

...We have for review the decision of the Fourth District Court of Appeal in Ripple v. CBS Corp., 337 So. 3d 45 (Fla. 4th DCA 2022). In Ripple, the Fourth District affirmed the trial court’s ruling on Jennifer Ripple’s claim for damages under section 768.21(2) of the Florida Wrongful Death Act (the Act)....

...The Act is codified at sections 768.16-768.26, Florida Statutes (2015). from the date of injury.” The district court held that a spouse who married the decedent after the onset of the injury that caused the decedent’s death cannot recover damages as a “surviving spouse” under section 768.21(2)....

...Ripple expressly and directly conflicts with a decision of another district court, Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212, 221 (Fla. 5th DCA 2018), where the Fifth District Court of Appeal held that a spouse who married the decedent after the injury can recover damages as a “surviving spouse” under section 768.21(2)....

...We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. 2 For the reasons discussed below, we agree with the Fifth District and hold that a spouse who married the decedent after the injury can recover damages as a “surviving spouse” under section 768.21(2). We reject Respondents’ argument that, in these circumstances, the common law “marriage before injury” rule bars recovery under section 768.21(2)....

...V, § 3(b)(4), Fla. Const.; Ripple, 337 So. 3d at 60. -2- holding in Domino’s and quash Ripple to the extent that it holds otherwise. In the present case, we hold that Jennifer Ripple can recover as a “surviving spouse” under section 768.21(2). We do not reach Ripple’s alternative argument regarding the claim of the decedent’s adult children for damages under section 768.21(3) of the Act. FACTS AND PROCEDURAL HISTORY Before his death, Richard Counter filed a personal injury complaint against multiple defendants (Defendants)....

...Ripple, as personal representative of Counter’s estate, amended the personal injury complaint, thereby replacing Counter’s common law personal injury claims with the estate’s wrongful death claims for damages under the Act. The estate sought damages for Ripple under section 768.21(2), which provides that “[t]he surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” The estate sought alternative damages for the adult children under section 768.21(3), which provides that “[m]inor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.” Defendants—Respondents here—moved for judgment on the pleadings as to both Ripple’s damages claim and the adult children’s alternative damages claim. Defendants argued that Ripple could not recover damages under section 768.21(2) because -4- she was not married to Counter at the time of his alleged asbestos exposure.3 Defendants based their argument on Florida’s common law rule that “a party must have been legally ma...

...2011) (stating that the “actual injury” is inhalation of asbestos fibers that become “embedded in the lungs of the plaintiffs without their knowledge or consent”). -5-  Defendants further argued that Counter’s adult children could not recover under section 768.21(3) because Ripple qualified as a “surviving spouse” under that subsection. In its response, the estate argued that in Kelly v. Georgia- Pacific, LLC, 211 So. 3d 340 (Fla. 4th DCA 2017), the Fourth District erroneously held that a spouse who married the decedent after the decedent’s injury cannot recover damages under section 768.21(2)....

...The estate argued that the trial court should deny Defendants’ motion for judgment on the pleadings under the Fifth District’s decision in Domino’s, which held that a spouse who married the decedent after the injury can recover damages under section 768.21(2)....

...followed Kelly instead of Domino’s, it deny Defendants’ motion as to Counter’s adult children. The estate argued that Defendants employed an “irreconcilable contradiction” by asserting that Ripple was not a “surviving spouse” under section 768.21(2) but that she was such a spouse under section 768.21(3)....

...no reasoning for its ruling on the adult children’s claim. Defendants later moved for summary judgment as to the adult children’s claim. Defendants argued that under the Act, adult children of the decedent may only recover damages under section 768.21(3) if there is no surviving spouse. Defendants claimed it was undisputed that Ripple was Counter’s “surviving spouse.” 4. Respondents never expressly argued that Ripple is not a “surviving spouse” under section 768.21(2), but the district court viewed them as essentially having made that argument....

...Stat.)))). The trial court granted Defendants’ motion for summary judgment. In its written order, the trial court concluded that “as there is a surviving spouse, albeit a spouse who is herself barred from recovery pursuant to Kelly, an adult child is barred from recovery pursuant to the plain language of section 768.21(3) of the Wrongful Death Act.” Id. at 52. The trial court recognized the estate’s argument that Defendants’ interpretation of section 768.21(3) would “completely cut off recovery under the Wrongful Death statute for the decedent’s family, other than for funeral expenses,” which “would ‘turn back the legal clock to a time when a tortfeasor could delay justice u...

...otion for judgment on the pleadings and the order granting Defendants’ motion for summary judgment to the Fourth District. The Fourth District affirmed the order granting Defendants’ motion for judgment on the pleadings as to Ripple’s section 768.21(2) damages claim. However, it reversed the order granting Defendants’ motion for summary judgment as to the adult children’s section 768.21(3) damages claim.5 Refusing to recede from Kelly, the district court concluded that Ripple could not recover damages as a “surviving spouse” under 5. On the adult children’s claim, the district court concluded that if Ripple was not a “surviving spouse” under section 768.21(2), the adult children could recover damages under section 768.21(3). We do not reach this issue because we conclude that a spouse who married the decedent after the injury is a “surviving spouse” who is not precluded from recovering damages under section 768.21(2). -9- section 768.21(2)....

...sound than the Fifth District’s in Domino’s. The district court thus applied Kelly, in which it determined that the Act does not explicitly change the “marriage before injury” common law rule and held that the spouse therefore could not recover damages under section 768.21(2)....

...3d at 346). The district court further noted that the trial court erred in concluding that Ripple was Counter’s “surviving spouse, albeit a spouse who is herself barred from recovery pursuant to Kelly.” Id. at 58. Concluding that Defendants sought to rewrite section 768.21 by adding the words “albeit a spouse who is [] barred from recovery pursuant to Kelly,” the district court reversed the summary judgment order involving the claim of the decedent’s adult children. Id....

....’ ” Id. at 61. - 11 - 2021). At the threshold, we must determine whether a spouse who married the decedent after the onset of the injury that caused the decedent’s death is a “surviving spouse” under section 768.21(2) of the Act. We hold that such a spouse is a “surviving spouse” under that provision. And, as we explain later, we further hold that the common law “marriage before injury” rule does not bar recovery under 768.21(2) by a surviving spouse who married the decedent after the date of injury. Our analysis of course begins with the text. Section 768.21(2) states: “The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” § 768.21(2), Fla. Stat. The plain language of section 768.21(2) indicates that a spouse who married the decedent after the onset of the injury that caused the decedent’s death is a “surviving spouse” under that subsection....

...lawfully married to someone else. See Spouse, Black’s Law Dictionary (11th ed. 2019). We face, then, the remaining question: When is a spouse a “surviving spouse”? In other words, does the ordinary meaning of the word “survivor” tell us whether survivorship under section 768.21(2) is determined at the time of the decedent’s injury or at the time of the decedent’s death? 7. The Act defines “[s]urvivors” as including “the decedent’s spouse.” See § 768.18, Fla. Stat. - 13 -  We conclude that a “surviving spouse” under section 768.21(2) is a spouse at the time of the decedent’s death because the ordinary meaning of “surviving spouse” is a spouse who outlives the other spouse....

...4th rev. ed. 1968). Also, the current version of Black’s Law Dictionary defines “surviving spouse” as “[a] spouse who outlives the other spouse.” Surviving spouse, Black’s Law Dictionary (11th ed. 2019). Thus, survivorship under section 768.21(2) is determined at the time of the decedent’s death, which is the time when the spouse outlives the decedent. A spouse who outlives the decedent is a “surviving spouse” under section 768.21(2) who may recover damages under that provision. Moreover, the “from the date of 8. The Act merged the survival cause of action for personal injuries and the wrongful death cause of action. Id. at 768. - 14 - injury” language in section 768.21(2) cannot reasonably be read to contradict this ordinary meaning. § 768.21(2), Fla....

...3d at 349 (Taylor, J., dissenting) (observing that the “from the date of injury” language “does not provide a limitation as to who may recover, but rather indicates what a surviving spouse may recover”). We need not go further in our interpretation of the term “surviving spouse” in section 768.21(2). However, we note that our conclusion is supported by the surrounding subsections in section 768.21, which have the same grammatical structure; by section 768.17, which shows the Legislature’s intent for the Act “to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer”; a...

...below, by the rule that claims under the Act accrue upon the decedent’s death. See Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114, 120 (Fla. 2021). Respondents argue that, even if Ripple is the decedent’s surviving spouse under section 768.21(2), the common law “marriage before injury” rule bars her recovery....

...the case in Thornber. Common law rules might also inform the correct interpretation and application of statutory provisions themselves. Here, though, we do not think that the common law “marriage before injury” rule bars Ripple from recovering damages under section 768.21(2). As our Court has previously recognized, a wrongful death claim is not a continuation of a common law personal injury claim. Sheffield, 329 So....

...The decedent’s death gives rise to an independent cause of action under the Act. Sheffield, 329 So. 3d at 121. Thus, under the Act, the surviving spouse does not pursue a distinct cause of action based on loss of consortium. Instead, the Act contemplates a standalone wrongful death claim in which, under section 768.21(2), the surviving spouse may recover damages “for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” It is not clear that the “marriage before injury” rule, a co...

...decedent from the date of injury to the decedent was eliminated. Substituted therefor was a claim for pain and suffering of close relatives, the clear purpose being that any recovery should be for the living and not for the dead.” Id. at 769. This of course explains section 768.21(2), which includes a surviving spouse’s damages for “mental pain and suffering” calculated from the date of the decedent’s initial injury. Allowing the “marriage before injury” rule as a defense to a surviving spouse’s recovery of damages under section 768.21(2) thus risks upsetting the Act’s logic and underlying structure. We acknowledge Respondents’ argument that our failure to recognize a “marriage before injury” defense in these circumstances creates a partial anomaly....

...Because Ripple was not married to the decedent at the time of injury, she could not have pursued a common law action for loss of consortium if the decedent had survived the injury. Yet, because of the decedent’s death from that - 18 - same injury, part of Ripple’s recovery under section 768.21(2) might include damages for “loss of the decedent’s companionship and protection” from the date of injury—including, arguably, the same damages that would have been unavailable to Ripple if the decedent had survived....

...We think it is up to the Legislature, not the courts, to decide whether this is a problem that needs fixing and, if so, how. Finally, we note that as the finder of fact, a jury may, in considering the evidence, determine whether a spouse’s conduct amounts to an attempt to marry into a section 768.21(2) claim. Nothing in our decision today prevents juries from considering the timing and duration of a couple’s marriage when evaluating a claim for damages under section 768.21(2). Our legal system entrusts the jury with evaluating the evidence to determine a proper award under section 768.21(2)....

...automatic” and that “in order to prevail on a claim for loss of consortium, the claiming spouse must present competent testimony concerning the impact that the incident has had on the marital relationship”). We therefore hold that Ripple is a “surviving spouse” under section 768.21(2)....

...As explained above, a “surviving spouse” is a spouse who outlives the other spouse. Here, Ripple legally married Counter on July 4, 2015, and Counter died on November 1, 2015. Ripple was Counter’s spouse at the time of his death. Because she outlived her husband, Ripple is a “surviving spouse” under section 768.21(2) as a matter of law. Moreover, we further hold that the “marriage before injury” rule does not bar Ripple’s recovery of damages under section 768.21(2). CONCLUSION For these reasons, we approve the holding in Domino’s that a spouse who married the decedent after the onset of the injury that caused the decedent’s death can recover damages as a “surviving spouse” under section 768.21(2)....

action for the wrongful death of his or her spouse. § 768.21(6)(c), Fla.Stat. (1985); Smyer v. Gaines, 332

recently held that the statute in question, section 768.21(8), Florida Statutes (1991), is constitutional

civil damages under the wrongful death statute, section 768.21(4), Florida Statutes; a father's financial

Further, the “Damages” section of the Statute, Section 768.-21, Florida Statutes (1977) states: (3) Minor

when and who can file claims under the law. See § 768.21, Fla. Stat. (2022). No matter how sympathetic

...4th DCA 2017), erred in holding that a spouse who had married a person after the person was injured, and the injured person later dies, is barred from recovering “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 estate’s alternative argument is that, if a spouse who had married the decedent after the decedent’s injury is barred from recovering damages under section 768.21(2) of the Wrongful Death Act (per Kelly), then the decedent’s surviving adult children may recover “for lost parental companionship, instruction, and guidance and for mental pain and suffering” under section 768.21(3) of the Wrongful Death Act. On the estate’s primary argument, we affirm based on Kelly, though we certify conflict between Kelly and Domino’s Pizza, LLC v....

...In Domino’s, the Fifth District expressly disagreed with Kelly and instead held that a spouse who had married a person after the person was injured, and the person later dies, is not barred from recovering “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. However, on the estate’s alternative argument, which comes to us as an issue of first impression, we agree with the estate that, if a spouse who had married the decedent after the decedent’s injury is barred from recovering damages under section 768.21(2) of the Wrongful Death Act (per Kelly), then the decedent’s surviving adult children may recover “for lost parental companionship, instruction, and guidance and for mental pain and suffering damages” under section 768.21(3) of the Wrongful Death Act. We present this opinion in five parts: I....

...estate’s personal representative—immediately and successfully sought leave to amend the complaint. The amended complaint replaced the decedent’s common law personal injury claims with the estate’s claim to recover damages for the wife under section 768.21(2) of the Wrongful Death Act or, in the alternative, damages for the decedent’s adult children under section 768.21(3) of the Wrongful Death Act. The Wrongful Death Act authorizes a decedent’s personal representative to “recover for the benefit of the decedent’s survivors … all damages, as specified in [the] act, caused by the injury resulting in death.” § 768.20, Fla....

...(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. … § 768.21(1)-(3), Fla....

...both the wife’s damages claim and the adult children’s alternative damages claim. As to the wife’s damages claim, the defendants argued she was barred from recovering “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 because she “and [the decedent] were not married at the time of [the decedent’s] alleged exposure to asbestos,” and thus she did not qualify as the decedent’s “surviving spouse” as that term is used in section 768.21(2)....

...must be drawn somewhere as to liability. Id. As to the adult children’s alternative damages claim, the defendants argued the adult children were barred from recovering “for lost parental companionship, instruction, and guidance and for mental pain and suffering” under section 768.21(3) of the Wrongful Death Act because the wife qualified as a “surviving spouse” as that term is used in section 768.21(3). The estate filed a response arguing this court, in Kelly, erred in holding that a spouse, who had married the decedent after the decedent’s injury, is barred from recovering “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....

...3d 212 (Fla. 5th DCA 2018), properly held that a spouse who had married the decedent after the decedent’s injury is not barred from recovering “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....

...sons that follow. 5  [The defendants’] [m]otion [for judgment on the pleadings] is an irreconcilable contradiction. [The defendants] first assert[] that [the wife] is not eligible under [section 768.21(2) of] the Act to recover [damages] as [the decedent’s] “surviving spouse,” because she married [the decedent] after he was exposed to asbestos. As explained above, under Kelly, [the defendants] [are], in fact, correct on this point. However, in the same breath, [the defendants] then contend[] that [the wife] is [the decedent’s] “surviving spouse[]” [under section 768.21(3) of the Act,] and that her status as such precludes [the decedent’s] adult children from recovering [damages] under [section 768.21(3)] of the Act....

...… (internal footnote omitted). After a hearing, the circuit court entered an order granting in part and denying in part the defendants’ motion for judgment on the pleadings. In the order, the circuit court, citing Kelly, granted the motion as it pertained to the wife’s damages claim under section 768.21(2) of the Act “as she was not married to decedent at the time of the exposure.” However, the circuit court, without detail, denied the motion as to the adult children’s damages claim under section 768.21(3) of the Act. IV. The Defendants’ Motion for Summary Judgment Later, the defendants filed a motion for summary judgment as to the adult children’s damages claim under section 768.21(3) of the Act....

...The defendants argued: Under Florida’s Wrongful Death Act, adult children may only recover for “lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury” “if there is no surviving spouse.” Fla. Stat. § 768.21(3) …. It is undisputed that [the wife] is the [“]surviving spouse[”] of the [d]ecedent....

...misconduct results in death”). [Domino’s, 248 So. 3d] at 220. After a hearing, the circuit court entered an order granting the defendants’ summary judgment motion. In the order, the circuit court reasoned: [S]ection 768.21(3), provides that damages are awardable under the Wrongful Death statute for “all children of the decedent if there is no [‘]surviving spouse[’] ....” As there is a surviving spouse here, the defendant contends that the adult children are barred from recovery....

...and the plain language of the statute. Therefore, as there is a surviving spouse, albeit a spouse who is herself barred from recovery pursuant to Kelly, an adult child is barred from recovery pursuant to the plain language of section 768.21(3) of the Wrongful Death Act. After the circuit court’s summary judgment order, the estate still had several economic damages claims pending under the Wrongful Death Act, including lost support and services damages, as well as damages for medical expenses, funeral expenses, and net accumulations....

...ble for the asbestos which caused the disease. Id. The decedent died from mesothelioma in 2015. Id. The decedent’s estate converted the action into a wrongful death claim. Id. The claim sought the wife’s damages for loss of consortium under section 768.21(2) of the Wrongful Death Act....

...The common law rule merely limits the circumstances for when the surviving spouse may recover “consortium-type” damages under the wrongful death statute for the “decedent’s companionship and protection and for mental pain and suffering from the date of injury.” § 768.21(2), Fla....

... if the surviving spouse was not married to the decedent prior to the date of the decedent’s injury. The definition of “survivor” in the statute is limited to familial relationships only, and both subsections (1) and (2) of section 768.21 clearly provide that damages are recoverable from the date of “injury.” §§ 768.18(1), 768.21(1)–(2), Fla....

...but rather, only limits what a survivor may recover. See Kelly, 211 So. 3d at 349 (Taylor, J., dissenting). In fact, the 15  legislature’s frequent differentiation between the “date of injury” and the “date of death” in section 768.21 demonstrates its awareness that these may be two different dates in a given case....

...16  may recover “consortium-type” damages under the wrongful death statute for the “decedent’s companionship and protection and for mental pain and suffering from the date of injury.” § 768.21(2), Fla....

...Kelly, and therefore affirm the circuit court’s order granting the defendants’ motion for judgment on the pleadings as to the wife’s claim “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. However, we certify conflict between Kelly and Domino’s. B....

...Applying de novo review, we reverse the summary judgment. We begin our analysis by recognizing the circuit court apparently found that the decedent’s adult children were barred from recovery because the decedent’s wife was his “surviving spouse” under section 768.21(3) of the Wrongful Death Act. See § 768.21(3), Fla....

...(emphases added). However, the circuit court failed to properly account for the fact that the defendants’ motion for judgment on the pleadings already had successfully argued that the decedent’s wife was not his “surviving spouse” under section 768.21(2) of the Wrongful Death Act. See § 768.21(2), Fla. Stat....

...(2015) (“The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.”) (emphases added). At the defendants’ urging, the circuit court attempted to reconcile its inconsistent findings under sections 768.21(2) and 768.21(3) by describing the decedent’s wife as his “surviving spouse, albeit a spouse who is herself barred from recovery pursuant to Kelly.” However, we conclude this was error. As the estate argued to the circuit court, the defendants engaged in an “irreconcilable contradiction” in arguing that the decedent’s wife was not his “surviving spouse” under section 768.21(2) of the Act, while in the same breath, contending 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....

...because the prejudicial effect is the same. Here, in the defendants’ earlier- filed motion for judgment on the pleadings on the decedent’s wife’s damages claim, the defendants successfully took the position that the decedent’s wife was not his “surviving spouse” under section 768.21(2) of the Wrongful Death Act, due to “the common-law rule that a party must have been legally married to the injured person at the time of the injury in order to assert a claim for loss of consortium.” Thus, the defendants successfully maintained that the decedent’s wife was not entitled to recover damages under section 768.21(2) of the Act. Yet in the defendants’ later-filed motion for summary judgment on the decedent’s adult children’s damages claim, the defendants took the totally inconsistent position that the decedent’s wife was his “surviving spouse” under section 768.21(3) of the Wrongful Death Act. This inconsistent position allowed the defendants to successfully maintain that the decedent’s adult children were not entitled to recover damages under section 768.21(3) of the Act either. 19  Again, the defendants cannot engage in such an “irreconcilable contradiction.” Their attempt to have the circuit court reconcile the contradiction by describing the decedent’s wife as a “surviving spouse, albeit a spouse who is herself barred from recovery pursuant to Kelly,” (emphasis added), essentially attempts to impermissibly rewrite section 768.21 by adding those words to the statute....

...motion for summary judgment as to the decedent’s adult children’s alternative damages claim. As a matter of first impression, we agree with the estate that, if a spouse who had married the decedent after the decedent’s injury is barred from recovering damages under section 768.21(2) of the Wrongful Death Act (per Kelly), then the decedent’s surviving adult children may recover damages under section 768.21(3) of the Wrongful Death Act....

...affection with the injured person, is permitted to “marry into a cause of action” simply by marrying the injured person before the injured person’s death, and thereby become the decedent’s “surviving spouse” in order to recover damages under section 768.21(2), Florida Statutes (2015). I write separately, however, to elaborate that Kelly, though correctly decided on the law, serves as an unfortunate factual application of the common law prohibition against “marrying into a cause of...

...limited non-economic damages for a surviving minor to the period of minority of the child. After reviewing the statute, the court held that a “review of the four parallel subsections granting wrongful death damages to survivors indicates that a minor child’s recovery under section 768.21(3) should be measured by the joint life expectancy of the child and the deceased parent.” The court’s reasoning was based in part on the fact that because “it would be expected that a child would lose his or her parents due to na...

...damages from the jury than Meeks authorizes. In McQueen v. Jersani, 909 So 2d 491, 496 (Fla. 5th DCA 2005), the court held that some evidence relevant to the joint life expectancies of both the survivor and the decedent is needed to establish damages pursuant to section 768.21(2)....

...That statute is inapplicable, because the estate had no assets. Although a wrongful death claim must be brought by the personal representative of the estate of the deceased, the survivor’s claims are for their survivors’ sole benefit and do not become part of the estate. See § 768.21, Fla....

...That statute is inapplicable, because the estate had no assets. Although a wrongful death claim must be brought by the personal representative of the estate of the deceased, the survivor’s claims are for their survivors’ sole benefit and do not become part of the estate. See § 768.21, Fla....

recoverable only if decedent was age -25 or over. § 768.21(6)(a), Fla.Stat. (1985). The Committee expresses

...Any funds Melissa might receive from the proceeds of the settlement of the wrongful death action would not be for the personal injuries she received in the accident. Instead, any funds allocated to Melissa from the wrongful death recovery would be awarded as compensation for her losses as a survivor of the Decedent. § 768.21, Fla....

...Goodloe could recover non-pecuniary damages on her claims. The dispute turned on a choice-of- law question: whether Wisconsin or Florida law should supplement general maritime law as allowed by Calhoun, 516 U.S. at 215–16. Florida law would have authorized non-pecuniary damages. See Fla. Stat. § 768.21 (allowing damages for 3  USCA11 Case: 19-14324 Date Filed: 06/21/2021 Page: 4 of 20 loss of companionship and mental pain and suffering)....

...Stat. § 895.04 terms and limitations do not apply.”). Ms. Goodloe urges us to apply Florida law, which, by contrast, allows for non-pecuniary damages with no cap and applies regardless of where the death is caused.3 See Fla. Stat. §§ 768.19 (cause of action), 768.21 (damages)....

...companionship and protection and for mental pain and suffering from the date of injury. . . . (5) Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them. Fla. Stat. § 768.21. 7  USCA11 Case: 19-14324 Date Filed: 06/21/2021 Page: 8 of 20 maritime law....

...the appellees. The appellants brought a wrongful death suit against the appellees — North Miami Medical Center and various physicians who had treated the decedent. The trial court granted summary judgment for the hospital and physicians, based on section 768.21, Florida Statutes (1995) — part of Florida’s Wrongful Death Act — which states in pertinent part: (3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost par...

...for any mental pain and suffering from the date of injury. ^ * * * (8) The damages specified in subsection (3) shall not be recoverable by adult children ... with respect to claims for medical malpractice .... The appellants , contend on appeal that section 768.21(8) is unconstitutional, as violative of the Equal Protection Clause of both the federal and Florida constitutions. We disagree and hereby affirm the- summary judgment for the hospital and physicians. 1 We also certify the following question to the Florida Supreme Court as one of great public importance: DOES SECTION 768.21(8), FLORIDA STATUTES (1995), WHICH IS PART OF FLORIDA’S WRONGFUL DEATH ACT, VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FLORIDA AND FEDERAL CONSTITUTIONS, ' IN THAT IT PRECLUDES RECOVERY OF NONPECUNIARY DAMAGES BY A *828 DECEDENT’S ADULT CHILDREN 2 WHERE THE CAUSE OF DEATH WAS MEDICAL MALPRACTICE WHILE ALLOWING SUCH CHILDREN TO RECOVER WHERE THE DEATH WAS CAUSED BY OTHER FORMS OF NEGLIGENCE? We are not persuaded by appellants’ argument that section 768.21(8) violates the equal protection guarantee of the federal and Florida constitutions....

...the appellants’ position — adult children of a person who wrongfully died as a result of medical malpractice. Since the right to wrongful death damages is not a fundamental right 4 and those in the appellants’ position are not a suspect class, section 768.21(8) would be unconstitutional as a violation of equal protection only if the challenged classification bears no rational relationship to a legitimate state interest....

...services. § 766.201, Fla. Stat. (1995). In 1990, the legislature again referred to and discussed the medical malpractice crisis — specifically its adverse impact on the accessibility of health care for Florida residents — during the passage of section 768.21 of the Wrongful Death Act....

...he accessibility of health care to Florida citizens, whereas wrongful deaths caused by other forms of negligence simply do not impact these “crisis” areas. This distinction is ‘precisely the one upon which the legislature’s classification in section 768.21(8) is drawn....

...The fact that the legislature, through chapter 90-14, chose to expand avenues of wrongful death recovery to certain classes of survivors does not mean that it was required to open the door to all classes.of survivors. The appellants have failed to overcome the presumption of section 768.21(8)’s constitutionality....

...it must uphold the act if it bears a rational relation to a legitimate government purpose”); In re Estate of Greenberg, 390 So.2d 40, 42 (Fla.1980); 10 Fla. Jur.2d Constitutional Law § 413 (1998). For the aforementioned reasons, we agree with the trial court that section 768.21(8) is constitutional....

...Our original opinion followed the reasoning and authority set forth in Stewart v. Price, 704 So.2d 594 (Fla. 1st DCA 1997). Because Stewart still pends rehearing, we now issue this opinion, acknowledging' a debt to the Stewart Court’s rationale. . Under section 768.21, the adult children of the decedent only recover nonpecuniary damages, if at all, in instances where the decedent had no surviving spouse. . As appellants did not raise a substantive due process challenge to section 768.21(8), either at the trial level or on appeal, we need not address the statute’s constitutionality with regard to substantive due process....

...We have considered this argument and find it to be without merit, as did the district court. 3. Damages Based on Loss of Prospective Net Estate Accumulations The government challenges the factual findings upon which the district court based the award of damages under the Florida Wrongful Death Act, Fla.Stat. § 768.21(6)(a), which provides a remedy for survivors....

...is deceased as a result of the offense." The Wrongful Death Act authorizes damages for lost net accumulations, the product of future income, only to the decedent's surviving spouse or lineal descendants, or to the surviving parent of an adult child. § 768.21(6), Fla. Stat. (2005). If the victim in this case had not been survived by a spouse or children, his parents would have been eligible to recover net accumulations under section 768.21(6)(b) as well as restitution for lost income as "next of kin" under the majority's construction of section 775.089....

...entative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death." (Emphasis added.) The recoverable damages in a wrongful death action are specified in section 768.21....

...(6) The decedent's personal representative may recover for the decedent's estate the following: .... (b) Medical or funeral expenses due to the decedent's injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent.... Section 768.21 further provides: (7) All awards for the decedent's estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims....

...er assets of the Estate. In this case, Tampa General filed its claim against the Estate in the probate action, and the medical expenses became a charge against the Estate. We hold that once the expenses became a charge against the Estate pursuant to section 768.21(6)(b) of the Wrongful Death Act, the personal representative had the exclusive authority to resolve those claims in a reasonable and equitable manner and in accordance with section 733.707 of the probate code....

constituting a felony, (emphasis supplied) Section 768.21(4) sets forth damages recoverable by survivors

who can recover and what may be recovered. Section 768.21(4), Florida Statutes (1983), permits each parent

...Paul is, however, survived by his natural mother, Nancy C. Vildibill, and his natural father, Charles Eugene Paul, Sr. As personal representative of Paul’s estate, Vildibill brought this wrongful death action seeking recovery of the estate’s loss of prospective net accumulations under Fla. StatAnn. § 768.21(6)(a). ** Section 768.21(6)(a) provides: (6) The decedent’s personal representative may recover for the decedent’s estate the following: (a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest....

...iving spouse or lineal descendants; or (2) If the decedent is not a minor child as defined in s. 768.18(2) and does not have survivors as defined in s. 768.18(1). Vildibill contends that the state of Florida did not intend to preclude recovery under section 768.21(6)(a) in a case such as this. She asserts that the state’s intent in amending section 768.21(6)(a) to include subsection (2) was to permit the estate of a deceased adult to recover damages so long as there were no survivors who would be entitled to recover damages in their own right. *465 Paul is survived only by his parents, neither of whom was dependent upon him for support or services, or is otherwise entitled to recover damages in their own right for his death. We believe that the issue of whether the reference in section 768.21(6)(a)(2) to “survivors” means only “survivors” who were dependent upon the decedent, is appropriate for resolution by the highest court of the state of Florida....

...She sought compensatory damages under Florida’s Wrongful Death Act, Fla. Stat. §§ 768.16–768.26, which in relevant part allows a decedent’s surviving spouse to recover for the “loss of the decedent’s companionship and protection” and “mental pain and suffering from the date of injury.” § 768.21(2). A After a four-day trial, the jury found Philip Morris comparatively liable for Mr....

the relationship of Higgins and his survivors. § 768.21, Fla.Stat. (1981). Thus, it is evident that Higgins’s

the estate that the jury remained confused. Section 768.21(6), Florida Statutes (1979)1 enumerates those

...Hence the right and remedy are purely statutory.”). The Wrongful Death Act creates a statutory right of action, see § 768.19, Fla. Stat. (1997), and provides that the injury suffered in such an action is to the decedent’s statutory beneficiaries, not the decedent, see §§ 768.18, 768.21, Fla....

...lue of - 12 - lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value.” § 768.21(1)....

...ute.”). Although the dissent properly observes that the statutes provide for the estate as a beneficiary, our analysis on punitive damages is not affected because death is not a cognizable injury for the estate in a wrongful death action. Section 768.21(6) specifies the damages that “[t]he decedent’s personal representative may recover for the decedent’s estate.” Although not part of the damages awarded in this case, the statute authorizes, subject to...

...ision *1524 of the Florida Wrongful Death Act, Fla. Stat.Ann. §§ 768.16-768.27 (West 1986). In this wrongful death action, the plaintiff asserts a claim for the loss of prospective net accumulations to decedent’s estate pursuant to Fla.Stat.Ann. § 768.21(6)(a)2. The defendant moves to strike this claim because the plaintiff fails to meet the express requirements of § 768.21(6)(a)2....

...Innocent is survived by his mother and siblings, whom Innocent supported. Two of his sisters, Anience and La Mercie, bring this action personally and on behalf of Innocent’s other siblings and mother pursuant to Fla.Stat.Ann. § 768.19 (West 1986). They seek to recover both for the loss of support, see Fla.Stat.Ann. § 768.21(1), and for the loss of prospective net accumulations to Innocent’s estate, see Fla.Stat.Ann. § 768.21(6)(a)2. The defendant now moves to dismiss the net accumulations claim, arguing that the requirements of § 768.21(6)(a)2 have not been met. Upon an examination of the legislative history behind this section, the court agrees with the defendant, but refuses to dismiss the claim under the alternative pleading rule. Section 768.21 is the damages section of the Florida Wrongful Death Act. Section 768.21(6)(a)2 provides in pertinent part: (6) The decedent’s personal representative may recover for the decedent’s estate the following: (a) Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may ......

...The plaintiffs counter by arguing that the legislature intended both claims to be maintained, and even if it did not, precluding the maintenance of both claims would violate the equal protection clause of the Fourteenth Amendment, U.S. Const, amend. XIY, § 1. In construing § 768.21(6)(a)2, the court will address each of these concerns. The court first notes that the language of § 768.21(6)(a)2 precludes a party from recovering both for a loss of support and for a loss of net accumulations. The section allows recovery of prospective net accumulations if the decedent is not a minor child, there is a surviving parent, and “there are no lost support and services recoverable” under § 768.21(1). Fla.Stat. Ann. § 768.21(6)(a)2....

...In Florida, “legislative intent must be given effect even though it may contradict the strict letter of the statute.” Vildibill v. Johnson, 492 So.2d 1047, 1049 (Fla.1986) (citing State v. Webb, 398 So.2d 820 (Fla.1980)). To find the legislative purpose in enacting § 768.21(6)(a)2, an examination of the facts and circumstances surrounding the section’s passage is necessary. Section 768.21(6)(a)2 was enacted to fill a gap in the wrongful death statute....

...igence of another. Because the decedent was survived only by his mother, she was without a remedy under the wrongful death act as it existed at that time. Id. The Florida Congress gradually corrected the problem. In 1981, the legislature amended the § 768.21(6)(a) to allow an estate to recover the loss of prospective net accumulations if the decedent had no surviving relatives. Vildibill, 492 So.2d at 1049 . In 1985, the legislature specifically allowed an estate of an adult decedent who is survived only by non-dependent parents to recover prospective net accumulations by amending § 768.21(6)(a)2. Id. at 1050. The Florida legislature, therefore, enacted § 768.21(6)(a)2 to provide a remedy where none existed before. The legislature was careful to construct the remedy so that only this intention was carried out. According to the section’s language, recovery under § 768.21(6)(a)2 is unavailable if the decedent is a minor child, or if no surviving parent remains, or if the claimant can recover for loss of support and services....

...§ 768.17 (West 1986). Without a survivor having a remedy, a wrongdoer would have avoided responsibility for his actions, and, thus, this policy would be subverted. The situation presented in this case differs from the circumstances that gave rise to the enactment of § 768.21(6)(a)2....

...v. Richardson, 411 U.S. 677 , 93 S.Ct. 1764 , 36 L.Ed.2d 583 (1973), or it fails to further a legitimate state purpose, see San Antonio Independent School Dist. v. Rodriquez, 411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973). Under these guidelines, § 768.21(6)(a)2 passes constitutional muster....

...The Florida legislature passed the Wrongful Death Act so that individuals who suffered a loss from a wrongful death would have a remedy. The legislature intended this remedy, as it specifically noted in § 768.17 (West 1986), to shift the loss suffered by a survivor to the wrongdoer. In § 768.21, the Florida legislature established a plethora of remedies that provided a specific means of recovery to every conceivable type of survivor....

...The Tobacco Defendants moved to dismiss the estate’s claim for damages for the Gomez children on the basis that Reka was a surviving spouse. Under the wrongful death statute, the adult children can recover only if there is no surviving spouse. §768.21 (3), Fla....

...her the common law “marriage before injury” rule was incorporated into the Wrongful Death Act and required the surviving spouse to be married to the decedent prior to the date of injury in order for the spouse to recover consortium damages under section 768.21(2), Florida Statutes....

...T OF FLORIDA PER CURIAM. In Ripple v. CBS Corp., 337 So. 3d 45 (Fla. 4th DCA 2022) (“Ripple I”), we affirmed the trial court’s granting the defendants’ motion for judgment on the pleadings on Jennifer Ripple’s claim for damages under section 768.21(2) of the Florida Wrongful Death Act....

...companionship and protection and for mental pain and suffering from the date of injury.” We held that a spouse who married the decedent after the onset of the injury that caused the decedent’s death cannot recover damages as a “surviving spouse” under section 768.21(2). Id. In Ripple v. CBS Corp., 385 So. 3d 1021 (Fla. 2024) (“Ripple II”), the Supreme Court of Florida held that a spouse who married the decedent after the injury can recover damages as a “surviving spouse” under section 768.21(2). Thus, the Supreme Court quashed Ripple I to the extent Ripple I determined otherwise, and held Jennifer Ripple can recover as a “surviving spouse” under section 768.21(2). Id. at 1024, 1030. The Supreme Court remanded for proceedings consistent with its opinion. Id. at 1030. Pursuant to the Supreme Court’s remand and mandate in Ripple II, we hold Jennifer Ripple can recover as a “surviving spouse” under section 768.21(2) of the Florida Wrongful Death Act....

...We therefore reverse the trial court’s order granting the defendants’ motion for judgment on the pleadings as to such claim. This reversal moots Ripple’s alternative argument regarding the claim of the decedent’s adult children for damages under section 768.21(3) of the Wrongful Death Act....

...has also undoubtedly increased. Against this backdrop, the Wrongful Death Act allows a decedent’s personal representative to bring a single action against negligent parties to recover damages for the decedent’s survivors and estate. See § 768.21, Fla....

...Brill, 636 So. 2d 782, 784 (Fla. 3d DCA 1994). It is silent on the matter of Medicaid liens. It contemplates, however, that the damages recovered by the decedent’s survivors are distinct from the damages recovered by the decedent’s estate. See § 768.21, Fla....

...ase. As surviving spouse and personal representative, Mrs. Barlow was entitled to recover the loss of prospective net accumulations, which might reasonably have been expected but for Mr. Barlow’s wrongful death, reduced to present money value. See § 768.21(6)(a), Fla....

...McClain, 525 So.2d 420, 422 (Fla.1988)(quoting Charles W. Ehrhardt, Florida Evidence, § 403.1 at 100-03 (3d ed.1984)). A trial court’s ruling, when an objection under section 90.403 is advanced, is reviewed for abuse of discretion. Id. Under our wrongful death statute, section 768.21, Florida Statutes (1999), the surviving spouse, in addition to being able to recover the “value of lost support and services,” is entitled to recover “loss of the decedent’s companionship and protection and for mental pain and suffering.” The damages sought for Mrs....

“survivors” as it appears in the second sentence of Section 768.-21(6)(a) to be read in conjunction with the definition

...ich a personal representative is specifically authorized to recover under the Wrongful Death Act.” Hamilton, 740 So.2d at 1197 (Fla. 4th DCA 1999). The Wrongful Death Act specifically defines damages to include those of the decedent’s survivors. § 768.21, Fla....

...That was not the issue before the trial court in this case and is not the issue before us now. While not incorporating the words ‘Wrongful Death Act” in the original complaint, the plaintiffs itemized damages are nearly verbatim of those found in section 768.21, Florida Statutes (1999)....

...tablished rights belonging to the decedent under chapter 400. We find the plaintiffs original complaint validly alleged negligence based on rights enumerated in section 400.23, Florida Statutes (1999), and sought statutorily authorized damages under section 768.21, Florida Statutes (1999)....

...defined as “a person related to you by blood, marriage or adoption who is a resident of your household.” Appellee, the named insured in the subject policy, maintains that at the time of the accident her late son was a minor within the meaning of section 768.21(4), Florida Statutes (1988), and that she is the person insured under the policy in the context of section 627.727, Florida Statutes (1983); and that therefore she has a cause of action against an uninsured motorist under the wrongful death statute and thus against the insurer....

...according to the relationship of survivor to decedent. A parent of a minor child may recover for mental pain and suffering from the date of injury. A survivor who paid medical or funeral expenses due to decedent’s injury or death may claim these. § 768.21, Fla....

...raised on behalf of the estate under the wrongful death statute, including lost earnings during the interval between injury and death, and the loss of prospective net estate accumulations, and medical or funeral expenses charged against the estate. § 768.21(6)....

...The Act manifests the state's public policy to shift the loss from the survivors to the wrongdoer; the Act is remedial and must be liberally construed. § 768.17. The wrongdoer is liable for "damages as specified in this act." § 768.19. Survivors may recover "the value of lost support and services." § 768.21(1). A surviving spouse may recover "for loss of the decedent's companionship and protection and for mental pain and suffering." § 768.21(2). "Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering . . . ." § 768.21(3) (emphasis added)....

...Although not listed in the statute, punitive damages may be recovered for a wrongful death. Martin v. United Sec. Servs., Inc., 314 So. 2d 765, 767 (Fla. 1975). The circuit court ruled that Cosman could not recover because Rodriguez was Wanda's surviving spouse. See § 768.21(3)....

...predeceased the decedent. Thus, the circuit court erred by ruling that Rodriguez was his wife's surviving spouse. In the absence of a surviving spouse, therefore, Cosman properly could assert her individual claim for damages as a survivor under the wrongful death law, section 768.21(3)....

...2d DCA 1978) (citing Martin v. United Sec. Servs., Inc., 314 So.2d 765, 769 (Fla.1975)). But other elements of damages— like medical expenses — are not extinguished. They remain as elements of damages for the personal representative or survivors to collect. See § 768.21....

...provide a legal basis for punitive damages if such allegations are determined to be true by the trier of fact. Fla. SB 702 (1986) (proposing the unadopted section 768.047(1), Florida Statutes) (emphasis supplied). The key to the proper analysis of section 768.21(1) is that the Legislature has never adopted a “clear and convincing” standard of proof for punitive damages at the pleading stage. There are times when judges should abide by one popular understanding of Occam’s Razor—that...

...While it is true that the Florida Wrongful Death Act allows for a surviving spouse to “recover for loss of the decedent’s companionship and protection and for mental pain and suffering” when a person dies as the result of a personal injury, this remedy is a creature of statute. § 768.21(2), Fla....

Legislature has corrected this by enactment of Fla.Stat. § 768.21 F.S.A. (1972 Supp.), allowing recovery of “loss

...Clarklift, Inc. v. Reutimann, 323 So.2d 640, 642 (Fla.2d DCA 1975)). “It provides a comprehensive remedy to survivors who are damaged as a result of a death and allows the estate to recover the decedent’s economic damages.” Id. (citing Fla. Stat. § 768.21 )....

...Clarklift, Inc. v. Reutimann, 323 So.2d 640, 642 (Fla.2d DCA 1975)). “It provides a comprehensive remedy to survivors who are damaged as a result of -a death and allows the estate to recover the decedent’s economic damages.” Id. (citing Fla. Stat. § 768.21 )....

...§ 3602 (i)(1) (“aggrieved person” is anyone who “claims to have been injured by a discriminatory housing practice”), 3 and the estate to recover for “economic damages in the form of medical expenses and attorney’s fees and costs, which his Estate has inherited.” ECF No. [20] at 16; Fla. Stat. § 768.21 (6)....

...ble plaintiff, the personal representative is further tasked with "recover[ing] for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death." § 768.20. To assist a defendant, section 768.21 identifies the damages allowable and requires 3 that "[a]ll potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and...

regarding what is meant by “surviving spouse” in section 768.21(3), the Legislature has made no change. The

...In context “close relatives” is a collective phrase intended to describe certain survivors whom the Act authorizes to recover for pain and suffering, viz., a surviving spouse, minor children of the decedent, and each parent of a deceased minor child, 768.21(2), 768.21(3) and 768.21(4)....

...Merlin, 335 So.2d 273 (Fla.1976), resolved any uncertainty as to the meaning of the Martin case insofar as the right of the surviving parents of adult offspring to recover damages for their own mental pain and suffering is concerned. In the Bassett case the Supreme Court affirmed a circuit court ruling that Section 768.21 was constitutional even though “it denied parents of an adult child the right to damages for mental pain and suffering.” 335 So.2d at 274 ....

...After careful review of Florida law, we conclude that these questions are unanswered by controlling precedent of the Supreme Court of Florida. Although Florida law allows parents to recover for their mental pain and suffering from the wrongful death of a child, Fla. Stat. § 768.21 (4) (1991), no statute provides them a remedy for “loss of their child’s companionship, society and affections” when the child’s injury does not lead to death....

...rs - not the decedent - by allowing recovery for such things as the survivors' *1325 loss of support services, loss of consortium, the survivors' own pain and suffering, as well as medical bills or funeral costs borne by the survivors or the estate. § 768.21, Fla....

exeessiveness of an award to an adult child under section 768.21(8), Florida Statutes (Supp.1990). In the instant

statute applies to wrongful death actions under section 768.-21, Florida Statutes (1983); and (2) the trial

...*362 Turning now to the reasons underlying our decision we first take into consideration the existence of related causes of action under Florida law. In Florida, a married person may maintain an independent cause of action for loss of consortium of an injured spouse. Gates . Florida’s wrongful death statute, section 768.21, Florida Statutes (1982), provides for recovery to both a surviving spouse and a minor child for loss of consortium in the event the spouse/parent dies as a result of the negligence of a third party....