Survival of Florida Loss of Consortium Claims

Survival of Florida Loss of Consortium Claims

When a person is seriously injured by someone else’s negligence, he or she may have a personal injury claim. The injured person’s spouse may also have a claim for loss of consortium. A loss of consortium claim compensates the spouse of an injured person for the damages suffered by that spouse, including loss of society and companionship of the injured person as a result of the injury.

The Fifth District recently ruled on a case in which the injured person passed away before the personal injury and loss of consortium claims were resolved. The issue was whether the loss of consortium claim could continue. This case arose when the husband was allegedly injured while riding a roller coaster at a theme park. The husband and wife jointly filed suit against the theme park for personal injury and loss of consortium. The husband died while the case was pending. The parties were in dispute as to whether the injuries caused his death. The wife did not timely move to substitute herself as personal representative and the trial court dismissed both the personal injury and loss of consortium claims. The wife then filed a motion for rehearing on the loss of consortium issue, which was denied.

This case is not the first time the Fifth District has addressed this issue. In a previous case, the Fifth District held that a wife’s loss of consortium claim survives the death of her husband, even though it is derivative of his claims. The Third District, however, held in a similar case that a loss of consortium claim did not survive the death of the injured spouse. In its case, the Third District certified conflict with the previous Fifth District decision and suggested that a derivative cause of action could not exist absent a primary cause of action.

In the present case, the Fifth District noted its own previous holding that loss of consortium is a separate cause of action that that represents a direct injury to the spouse of the injured person. The court also took issue with the Third District’s position that the Legislature did not intend for a loss of consortium claim to survive the death of the injured spouse because the surviving spouse is allowed to recover under the Wrongful Death Act. There are, however, circumstances in which there would be no right to a wrongful death action after the death of the injured person. If the injured person died as the result of something other than the injuries sustained in the accident, the surviving spouse would lose the right to bring a loss of consortium action. The Fifth District did not accept that the Legislature intended for a surviving spouse to lose a vested right to recover.

The Fifth District affirmed the trial court’s dismissal of the personal injury claim and reversed the dismissal of the loss of consortium claim. At this point, there remains a conflict between the Third and Fifth Districts, with the Fifth District being more favorable to plaintiffs. Unless the Florida Supreme Court resolves the conflict, Florida loss of consortium claims may have unpredictable outcomes.

How We Can Help
If you, a friend or a family member find themselves in a situation such as this, please call the Law Office of Scott A. Ferris, P.A. at 305 670-3330 right away. Scott A. Ferris, Esq. is a licensed civil law attorney who has been practicing law since 1987. He is available whenever you need him to pursue your rights. Please learn about our firm at