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A Call Of Attention to a Disturbing Decision That Denies Widow Damages for Loss of Consortium in Asbestos Product Liability Lawsuit

Our Miami personal injury attorneys often review court decisions that illustrate important legal issues or new developments in the law that have a potential impact on our clients.  However, sometimes we call attention to court decisions because of the disturbing nature of the outcome.  This blog post serves as a cautionary tale regarding the importance of having exemplary legal representation because the analysis of a judge or court can be unanticipated, so you need a knowledgeable and experienced lawyer.

A recent decision by a Florida appellate court denied a widow loss of consortium damages despite a forty year marriage after her husband allegedly died from exposure to asbestos.  John Kelley was exposed to asbestos from 1973 to 1974, which preceded his marriage to his wife Janis Kelly by two years.  Mr. Kelly was subsequently diagnosed with mesothelioma, which is caused by asbestos exposure.  The couple filed a product liability lawsuit against several asbestos manufacturers based on strict liability.

The trial judge granted the defendants’ motion to dismiss the wrongful death action on the grounds the couple was not married at the time Mr. Kelly was exposed to asbestos.  Florida common law (precedent through court decisions) followed the Marriage Before Injury Rule.  This rule provides that parties must be married before a non-injured spouse may recover damages for loss of consortium, services of a spouse, and other damages.

The surviving wife appealed the decision to the 4th DCA which upheld the trial judge based on an extensive if troubling analysis.  The appellate court framed the issue as whether enactment of the Florida Wrongful Death Statute superseded the common law rule.  The appellate court noted that it would only make this determination if the legislature “clearly,” “unequivocally,” and “explicitly” indicated this intention.

The court’s rationale was even more troubling because of its reliance on the possibility of a macabre scenario.  The decision suggested that allowing the wife to recover despite not being married to her husband at the time of the injury could motivate people to marry partners on their death beds to set up wrongful death lawsuits.  The court reasoned the surviving spouse could then claim damages dating all the way back to the original date of injury.  Despite the objectionable notion that people are going to marry seriously ill partners to facilitate future wrongful death suits, the example is completely irrelevant to this scenario.  When the couple was married a couple years before the husband’s exposure to asbestos, he exhibited no symptoms of asbestos exposure.  Evidence was not even introduced to support a finding that the widow was aware her husband had been exposed when the couple married.

The court’s insistence on applying the archaic common law rule resulted in a wife of forty years being denied compensation for the death of her husband despite his exposure to a toxic carcinogen.  The tragic consequences of this decision include the potential of leaving a stay at home spouse without the education, skills, and experience to replace lost household income.  If the decedent had been a parent of minor children, the devastating financial impact of the decision of the court could have been even more profound.

Greenberg, Stone, & Urbano:  Seeking Maximum Recovery for Serious Injury and Wrongful Death Victims and Families

Skilled legal representation could facilitate anticipating these types of legal pitfalls and employing litigation strategies that maximize your prospects for the fullest recovery the law allows.

Our Miami wrongful death lawyers at Greenberg, Stone & Urbano offer the assistance you need to pursue the results you desire.  For over 130 collective years, our firm has assisted injury victims in personal injury and wrongful death actions across South Florida.  We seek to obtain compensation for your tangible and intangible damages, including medical bills, lost wages, pain and suffering, and more.  Our skill and dedication have earned us an AV rating from Martindale-Hubbell and recognition as one of South Florida’s top firms by the Miami Herald.   Call us at (888) 499-9700 or (305) 595-2400 or visit our website to schedule your initial consultation.








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