DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PHILIP MORRIS USA, INC., a foreign corporation,
R.J. REYNOLDS TOBACCO COMPANY, individually, and as successor
by merger to BROWN & WILLIAMSON TOBACCO CORPORATION,
individually and as successor by merger to
THE AMERICAN TOBACCO COMPANY, a foreign corporation,
LORILLARD TOBACCO COMPANY, a foreign corporation,
LIGGETT GROUP LLC (f/k/a Liggett Group, Inc., f/k/a
Liggett & Myers Tobacco Company), and VECTOR GROUP LTD., INC.
(f/k/a Brooke Group, Ltd.), a foreign corporation,
Appellants,
v.
BRYAN RINTOUL, as Personal Representative of the
ESTATE OF EDWARD CAPRIO,
Appellee.
No. 4D20-1963
[May 11, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No. CACE07-036719.
Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington,
DC and Scott A. Chesin of Shook, Hardy & Bacon LLP, New York, NY, for
appellant Philip Morris USA Inc.
Michael A. Carvin of Jones Day, Washington, DC, Eric L. Lundt, and
Robert C. Weill of GrayRobinson, Fort Lauderdale, Charles R.A. Morse of
Jones Day, New York, NY, and Kenneth M. Grose of Jones Day, Columbus,
OH, for appellant R.J. Reynolds Tobacco Company.
Daniel E. Nordby, Steven M. Ebner and Michael A. Muñoz of Shutts &
Bowen LLP, Tallahassee, Scott P. Schlesinger, Jonathan R. Gdanski,
Steven J. Hammer and Brittany Barron of Schlesinger Law Offices, P.A.,
Fort Lauderdale, and Bard D. Rockenbach of Burlington & Rockenbach,
P.A., West Palm Beach, for appellee.
Mary L. Bonauto and Chris Erchull of GLBTQ Legal Advocates &
Defenders, Boston, MA, Freddy Funes of Toth Funes PA, Miami, Andrew
J. Fuller of Gelber Schachter & Greenberg, P.A., Miami, and Daniel B.
Tilley, ACLU Foundation of Florida, Miami, for Amicus Curiae-GLBTQ
Legal Advocates & Defenders and American Civil Liberties Union of
Florida.
PER CURIAM.
In this Engle 1 progeny wrongful death case, the defendants, Philip
Morris (“PM”) and R.J. Reynolds (“RJR”), appeal a final judgment in favor
of the plaintiff, Bryan Rintoul, as Personal Representative for the Estate of
Edward Caprio, awarding substantial compensatory damages to Rintoul
as surviving spouse and punitive damages against both appellants. Of the
multiple issues raised, we address three. First, we reverse the punitive
damage award based upon Sheffield v. R.J. Reynolds Tobacco Co., 329 So.
3d 114 (Fla. 2021). Second, we conclude that the admission of substantial
evidence regarding JUUL Labs, Inc. (“JUUL”) and e-cigarettes in support
of Rintoul’s punitive damage claim was harmful error, requiring a new trial
on all issues. Third, we agree with RJR that Rintoul is not entitled to
recover non-economic damages based upon Kelly v. Georgia-Pacific, LLC,
211 So. 3d 340 (Fla. 4th DCA 2017), 2 which relied on Tremblay v. Carter,
390 So. 2d 816 (Fla. 2d DCA 1980), because Rintoul was not married to
the decedent when the symptoms of a tobacco-related illness manifested.
We reject the trial court’s creation of an exception to Kelly for a same-sex
couple based upon Obergefell v. Hodges, 576 U.S. 644 (2015). We
conclude that Obergefell does not compel us to make an exception to either
Kelly or Tremblay. Therefore, while we reverse all issues for a new trial,
Rintoul may not claim compensatory damages as a “surviving spouse”
based on those cases.
Facts
Decedent Edward Caprio, who was born in 1943, began smoking at age
15. In 1996, he was diagnosed with COPD, a disease caused by smoking.
Later, he was diagnosed with lung cancer and had surgery to remove
portions of his right lung.
Caprio filed suit in 2007, alleging membership in the Engle class and
asserting claims for strict liability, negligence, fraudulent concealment,
1Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
2We note that in Ripple v. CBS Corp., 47 Fla. L. Weekly D750 (Fla. 4th DCA Mar.
30, 2022), this court certified conflict between Kelly and Domino’s Pizza, LLC v.
Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018).
2
and conspiracy. In 2015, while the case was pending, Florida legalized
same-sex marriage. Shortly thereafter, Caprio married Bryan Rintoul,
with whom he had been in a relationship since 1982. The case mis-tried
in 2015. After his COPD worsened, Caprio died in 2018. Following
Caprio’s death, Rintoul moved to amend the complaint to substitute
himself as plaintiff in his capacity as Caprio’s personal representative and
to assert a wrongful death claim, seeking compensatory damages for
himself as a surviving spouse.
RJR objected to the motion for leave to amend in part, opposing
Rintoul’s amendment to seek surviving spouse loss of consortium non-
economic damages as futile. It cited Kelly to argue that Rintoul married
Caprio after his injuries occurred and therefore could not bring a wrongful
death claim for non-economic damages because of Florida’s long-standing
rule that a spouse cannot marry into a cause of action. In response,
Rintoul argued that the application of section 768.20, Florida Statutes
(2019)—the Wrongful Death Act—in the manner advocated by RJR would
violate his due process and equal protection rights. 3
The trial court ruled in Rintoul’s favor. It distinguished Kelly, finding
that at the time of the diagnosis of COPD, i.e., the “injury,” Rintoul and
Caprio could not be lawfully married in Florida because the state did not
recognize same-sex marriages until 2015. Under the court’s reasoning,
applying the “marriage before injury” rule to Rintoul “would operate to
discriminate against Rintoul and deprive him of the benefits and
protections associated with a legal marriage status solely based on the fact
that he was in a same-sex relationship and was unable to legally marry at
the time.” Thus, the trial court determined that the Wrongful Death Act
would be unconstitutional as applied and granted Rintoul leave to amend
to add the claim for non-economic damages. The result of this ruling was
that at trial, Rintoul would have to prove and the jury would have to find
that the couple would have married before 1996 had same-sex marriage
been legal at the time.
Before trial, appellants moved to preclude evidence regarding JUUL, e-
cigarettes, and other JUUL products. They argued no evidence showed
that Caprio used JUUL products nor did JUUL have anything to do with
Engle progeny cases. Appellants acknowledged that PM was a subsidiary
of Altria Group, Inc. (“Altria”), and that Altria had made a $12.8 billion
minority investment in JUUL, giving it a thirty-five percent minority
3RJR asserted in the lower court and here on appeal that Rintoul’s arguments
should be rejected based on Florida Rule of Civil Procedure 1.071. We reject that
argument without discussion.
3
interest in JUUL in December 2018. Yet PM did not control JUUL. RJR
advised the court that it was not involved with JUUL. Both appellants
argued that evidence of JUUL was improper and irrelevant to the
determination of both compensatory and punitive damages. Additionally,
any probative value of the evidence regarding JUUL was outweighed by its
prejudicial value. Rintoul countered that the purpose of the JUUL
evidence was to show “[p]erpetuation of the adolescent addiction industry
and entitlement -- thus reprehensibility and entitlement to punitive
damages.”
Although PM put JUUL coupons in Marlboro packages, made their
customer list available to JUUL for sending coupons, and shared shelf
space at stores with JUUL products, PM’s counsel argued that the JUUL
relationship was not material to the issue of punitive damages because a
defendant can only be punished for its own conduct that causes harm to
a plaintiff, not a third party’s conduct. Rintoul’s own expert testified that
JUUL products did not harm Caprio. Nevertheless, the trial court ruled
the evidence admissible as to punitive damages entitlement.
At trial, a significant amount of testimony and documents involved
JUUL, including press releases and documents from Altria. PM again
objected to that evidence’s introduction because Altria was not a party and
was the parent company to PM. The trial court admitted the evidence,
stating that the documents could be admitted because JUUL was part of
a party opponent. Based upon these rulings, documents discussing
concerns over the use of e-cigarettes among children were introduced. The
trial court also allowed an expert to testify with respect to e-cigarettes and
use by high school students. The expert also pointed out that JUUL was
the leader in the e-cigarette market. Other testimony showed that former
PM officers were now JUUL officers. Letters from the FDA to JUUL and to
Altria were admitted regarding the FDA’s concern over children’s use of e-
cigarettes. Rintoul’s attack on JUUL continued during closing argument.
In Phase I closing arguments, Rintoul’s counsel directly invoked JUUL to
argue that the case is “about cigarettes. It’s about JUUL and JUUL
devices. It’s about the perpetuation . . . of the adolescent . . . addiction
industry, which is the same as it ever was.”
Ultimately, the case was submitted to the jury in Phase I where the jury
found that Caprio was addicted to cigarettes which were a legal cause of
his COPD. The jury attributed forty-nine percent negligence to both PM
and RJR, and two percent negligence to Caprio. The jury’s verdict awarded
$200,000 in damages to the Estate and $9,000,000 to Rintoul for loss of
consortium and pain and suffering. The jury also found by way of special
interrogatory that Rintoul and Caprio would have been married before
4
Caprio developed COPD had it been legal for them to do so. Finally, the
jury found that punitive damages were warranted against both appellants.
In Phase II of the trial pertaining to the amount of any punitive damages
award, Rintoul offered more evidence regarding JUUL over appellants’
objection. Appellants also objected to references to JUUL in closing
argument. Rintoul’s counsel requested $24 million as to each appellant.
The jury assessed almost six times the amount which Rintoul requested—
$74,122,719.43—in punitive damages against each appellant.
Interestingly, that number matched Caprio’s age at death, 74, and his date
of birth, 12/27/1943.
The trial court entered final judgment on both the compensatory and
punitive damages, including remitting the award of economic damages to
$155,866.82 to comport with the evidence. Appellants subsequently
moved for new trial and a reduction of the punitive damage award on
various grounds, all of which were denied. This appeal followed.
Punitive Damages
In 1999, the Legislature amended section 768.73 to prohibit punitive
damage awards against a defendant in a civil action where punitive
damages had previously been awarded against the defendant in another
action that alleged “harm from the same act or single course of conduct
for which the claimant seeks compensatory damages.” § 768.73(2)(a), Fla.
Stat. (1999). The single course of conduct included “acts resulting in the
same manufacturing defects, acts resulting in the same defects in design,
or failure to warn of the same hazards, with respect to similar units of a
product.” Id. The legislation permitted additional punitive damages in
certain circumstances:
(b) In subsequent civil actions involving the same act or single
course of conduct for which punitive damages have already
been awarded, if the court determines by clear and convincing
evidence that the amount of prior punitive damages awarded
was insufficient to punish that defendant’s behavior, the court
may permit a jury to consider an award of subsequent
punitive damages. . . . Any subsequent punitive damage
awards must be reduced by the amount of any earlier punitive
damage awards rendered in state or federal court.
§ 768.73(2)(b), Fla. Stat. (1999). Although the law stated that the
amendments “shall be applied to all causes of action arising after the
effective date of this act,” this court in R.J. Reynolds Tobacco Co. v.
5
Konzelman, 248 So. 3d 134, 135 (Fla. 4th DCA 2018), agreed with other
appellate courts in holding “that the pre-1999 version of section 768.73,
Florida Statutes, applies in an Engle progeny personal injury suit that is
converted into a wrongful death action upon the smoker’s death.”
Acknowledging that this court had rejected the application of the
amended statute in Engle cases, PM and RJR nevertheless filed notices in
the trial court invoking the amended version of section 768.73(2) and
alleging that each had paid millions of dollars in punitive damage awards
already. They preserved their claim that the statute applied in their
motions for directed verdict and motions for new trial, and they also
preserved the issue by raising it in their briefs.
During the pendency of this appeal, the Florida Supreme Court in
Sheffield reversed Konzelman, holding “the relevant 1999 amendments to
section 768.73 apply in Engle progeny wrongful death actions in which the
decedent died after the effective date of the amendments.” 329 So. 3d at
125. Because of Sheffield, we reverse and remand to the trial court to
apply amended section 768.73 in determining any punitive damage award.
JUUL Evidence and Argument
At trial, the court allowed Rintoul to introduce evidence and argument
regarding JUUL on the theory that it was probative on the issue of punitive
damages as continued misconduct of appellants. Although PM did not
own JUUL, and its parent company Altria owned only a minority interest,
Rintoul alleged PM engaged in joint marketing efforts with JUUL by
providing JUUL coupons in PM cigarette packages and sharing shelf space
at stores. In denying the motion for new trial, which again challenged the
admission of the evidence, the trial court explained that evidence of
marketing JUUL products and other e-cigarettes as an alternative nicotine
delivery device and of targeting minors was the type of conduct which
harmed Caprio.
We disagree and hold that admitting the JUUL evidence was error for
two reasons. First, admitting JUUL evidence against PM requires
disregarding corporate entities, essentially a piercing of the corporate veil
without evidence to support it. Second, the sole evidence showing a joint
marketing effort between JUUL and PM was, at best, dissimilar to the acts
upon which liability for Caprio’s death were predicated and thus punished
appellants for conduct which did not harm Caprio.
“The standard of review for admissibility of evidence is abuse of
discretion.” Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001)
6
(citing Melendez v. State, 700 So. 2d 791 (Fla. 4th DCA 1997)). “However,
a trial court’s discretion is limited by the rules of evidence.” Nardone, 798
So. 2d at 874 (citation omitted). The legal question of whether evidence is
admissible under an exception to the hearsay rule is reviewed de novo.
Philip Morris USA, Inc. v. Pollari, 228 So. 3d 115, 120 (Fla. 4th DCA 2017).
Because the trial court’s decision to pierce the corporate veil involves a
pure issue of law, we review it under a de novo standard. Flooring Depot
FTL, Inc. v. Wurtzebach, 330 So. 3d 47, 49 (Fla. 4th DCA 2021).
To find the evidence regarding Altria’s purchase of an interest in
JUUL—together with the other evidence about Altria’s statements
regarding JUUL—was admissible as to PM would require disregarding that
PM is a distinct corporate entity:
[C]ourts will look through the screen of corporate entity to the
individuals who compose it in cases in which the corporation
was a mere device or sham to accomplish some ulterior
purpose, or [] a mere instrumentality or agent of another
corporation or individual owning all or most of its stock, or
where the purpose is to evade some statute or to accomplish
some fraud or illegal purpose.
Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1117 (Fla. 1984)
(quoting Mayer v. Eastwood-Smith & Co., 164 So. 684, 687 (Fla. 1936)).
To pierce the corporate veil, litigants must prove the following three
factors by a preponderance of the evidence:
(1) the shareholder dominated and controlled the corporation
to such an extent that the corporation’s independent
existence, was in fact non-existent and the shareholders were
in fact alter egos of the corporation;
(2) the corporate form must have been used fraudulently or
for an improper purpose; and
(3) the fraudulent or improper use of the corporate form
caused injury to the claimant.
Flooring Depot FTL, 330 So. 3d at 49 (citations omitted). Here, Rintoul
offered no evidence to pierce the corporate veil to introduce the Altria and
JUUL evidence.
7
We addressed a similar scenario in Humana Health Insurance Co. of
Florida v. Chipps, 802 So. 2d 492 (Fla. 4th DCA 2001), where the trial
court admitted testimony concerning nonparties that imputed culpability
to the defendant. In Chipps, the plaintiff sued his healthcare insurer for
cutting off benefits for specialized care for his child born with cerebral
palsy. Id. at 494. He sought both compensatory and punitive damages.
Id. At trial, the court allowed the plaintiff to offer testimony from parents
of other critically ill children regarding insurers other than defendant’s
insurer Humana. Id. at 497. This court held:
To the extent that these insurers were not the same as
Humana, we hold the court erred. Although they shared the
same parent company (Humana, Inc.) and although the
[plaintiff] argued that Humana, Inc. acted as an agent for its
subsidiaries in scheming to cut [plaintiff’s minor child] and
others from the Medical case Management program, Humana,
Inc. was not named as a party to this lawsuit. There was no
attempt to pierce the parent company’s corporate veil or
pursue a legal theory that would have allowed the jury to
disregard the corporate structure and hold the subsidiaries
responsible for each other’s conduct. The evidence was
irrelevant and unduly prejudicial.
Id.
Similarly, in this case, the trial court admitted testimony regarding
PM’s parent company Altria even though Altria was not a named party.
Rintoul made no attempt to pierce the corporate veil and hold Altria
responsible for PM. Moreover, PM does not share the same parent
company with JUUL, as Altria is only a minority shareholder in JUUL.
Even if JUUL were a wholly-owned subsidiary of Altria, Rintoul offered no
basis for the jury to disregard its corporate structure and hold PM
responsible for JUUL.
We also find the JUUL evidence should not have been admitted,
because punitive damages cannot be based on conduct which is dissimilar
to that which harmed the plaintiff. “A defendant should be punished for
the conduct that harmed the plaintiff, not for being an unsavory individual
or business.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,
423 (2003). Conduct which is dissimilar from the conduct by which the
injured party is harmed cannot be the basis for a punitive damage award
to the injured party. Id. at 422.
8
In Campbell, the insured sued his insurer, State Farm, for failure to
pay a claim against him arising out of an automobile accident. Id. at 412.
The litigation against the insured for the automobile collision resulted in
a judgment against the insured far in excess of the policy limits. Id. at
413. The insured sued State Farm for bad faith and sought punitive
damages. Id. at 414. At trial, the insured offered evidence of a nationwide
scheme by State Farm to take cases to trial to meet corporate fiscal goals.
Id. at 415. The trial court allowed the insured to admit substantial expert
testimony regarding State Farm’s fraudulent practices over twenty years
involving cases of all types, many of which did not involve third party
automobile insurance claims. Id. On appeal from a punitive damage
judgment in the amount of $145 million, the Utah Supreme Court upheld
the punitive damage award, relying on the evidence of State Farm’s
national tactics, finding State Farm’s conduct was “reprehensible.” Id. at
415–16.
The Supreme Court held that the award was excessive and noted that
State Farm’s handling of the insured’s claim was sanctionable with
punitive damages. Id. at 429. Instead of punishing for the handling of the
insured’s particular case, however, the case “was used as a platform to
expose, and punish, the perceived deficiencies of State Farm’s operations
throughout the country.” Id. at 420. The Court provided two reasons for
disapproving the reference to State Farm’s nationwide practices in the
case. Id. at 422. First, a state cannot punish a defendant for acts
committed in another jurisdiction which were lawful where committed, as
the insured admitted many of State Farm’s policies were. Id. “Lawful out-
of-state conduct may be probative when it demonstrates the
deliberateness and culpability of the defendant’s action in the State where
it is tortious, but that conduct must have a nexus to the specific harm
suffered by the plaintiff.” Id. Second, “[a] defendant’s dissimilar acts,
independent from the acts upon which liability was premised, may not
serve as the basis for punitive damages.” Id.
The Court also concluded that State Farm could not be punished as a
“recidivist.” Id. at 423. “Although ‘[o]ur holdings that a recidivist may be
punished more severely than a first offender recognize that repeated
misconduct is more reprehensible than an individual instance of
malfeasance,’ in the context of civil actions courts must ensure the
conduct in question replicates the prior transgressions.” Id. (citing TXO
Prod. Corp. v. All. Res. Corp., 509 U.S. 443, 462 n.28 (1993) (noting that
courts should look to “the existence and frequency of similar past
conduct”)) (internal citation omitted).
9
Applying Campbell to this case, we conclude that the JUUL evidence
could not be used to support a punitive damage claim for the harm caused
to Caprio for at least two reasons. First, the specific conduct which led to
Caprio’s death was his addiction to tobacco cigarettes and not e-cigarettes.
While the nicotine in cigarettes causes an addiction, it is the smoking of
the tobacco which results in the terrible diseases its participants can
experience. Indeed, the Engle findings which form the basis of liability for
this case require smoking cigarettes:
1 (that smoking cigarettes causes [certain named diseases,
including lung cancer]),
945 So. 2d at 1254, 1276–77 (emphasis added); Hess v. Philip Morris USA,
Inc., 175 So. 3d 687, 694 (Fla. 2015). E-cigarettes do not involve smoking
tobacco, which was the cause of Caprio’s disease. Therefore, the harm
caused by the tobacco is entirely dissimilar to the JUUL e-cigarettes.
Second, while Rintoul used JUUL to argue that PM continued to market
to minors, getting them addicted to nicotine just as it had enticed minors
to smoke in the 1950s, the joint marketing introduced at trial consisted of
the placement of JUUL coupons in packs of PM cigarettes. However,
because minors cannot legally purchase cigarettes, the coupon was lawful
conduct directed at adults, not minors. This is not the same conduct
which “replicates the prior transgressions.” See Campbell, 538 U.S. at
423.
Because the court erred in admitting the JUUL evidence and argument,
which became a feature of the trial and closing argument, we reverse and
remand for a new trial on all issues. We cannot conclude that the error
was harmless under Special v. West Boca Medical Center, 160 So. 3d 1251
(Fla. 2014).
Rintoul’s Claim as Surviving Spouse
At the trial court, Rintoul made three related arguments in support of
his right to bring a marital consortium claim. Marital consortium is
defined under Florida law as a right arising from the marital union to have
performance by a spouse of all the duties and obligations assumed by the
marriage relationship, including the right to society, companionship, and
services. See Gates v. Foley, 247 So. 2d 40, 43 (Fla. 1971).
First, Rintoul contended that the Supreme Court’s holding in
Obergefell—that same-sex couples can no longer be denied the right to
marry—should be applied retroactively to establish a marriage at a time
10
before his partner’s (later spouse) manifestation of injury. Second, he
asserted that this suggested retroactivity of Obergefell should be extended
to him for the purpose of allowing him to claim consortium damages
because he would have been married before his partner’s onset of illness
but for Florida’s prior unconstitutional prohibition of same-sex marriage.
Third, Rintoul argues the trial court did not err in submitting this issue to
the jury as a finding of fact or in ultimately holding that he was entitled to
bring his loss of consortium claim. We disagree as to all three of appellee’s
arguments.
In August 2014, a federal court ruled Florida’s same-sex marriage ban
to be unconstitutional. Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla.
2014). 4 Although the court’s order in that case had been stayed
temporarily, the stay expired in January 2015 when the State of Florida
4 Prior to Obergefell, section 741.212, Florida Statutes (2014), governed same-
sex marriage in the state of Florida.
741.212 Marriages between persons of the same sex.—
(1) Marriages between persons of the same sex entered into in any
jurisdiction, whether within or outside the State of Florida, the
United States, or any other jurisdiction, either domestic or foreign,
or any other place or location, or relationships between persons of
the same sex which are treated as marriages in any jurisdiction,
whether within or outside the State of Florida, the United States, or
any other jurisdiction, either domestic or foreign, or any other place
or location, are not recognized for any purpose in this state.
(2) The state, its agencies, and its political subdivisions may not
give effect to any public act, record, or judicial proceeding of any
state, territory, possession, or tribe of the United States or of any
other jurisdiction, either domestic or foreign, or any other place or
location respecting either a marriage or relationship not recognized
under subsection (1) or a claim arising from such a marriage or
relationship.
(3) For purposes of interpreting any state statute or rule, the term
“marriage” means only a legal union between one man and one
woman as husband and wife, and the term “spouse” applies only to
a member of such a union.
§ 741.212, Fla. Stat. (2014).
In 2008, Florida amended its state constitution to define marriage as between
a man and a woman. Art. I, § 27, Fla. Const. (2008).
11
dropped its appeal of the case filed in the Eleventh Circuit Court of
Appeals. See Order, Brenner v. Armstrong, No. 14-14061 (11th Cir. Oct.
19, 2015) (granting voluntary dismissal of state’s appeal). Since then,
Florida has recognized the legality of same-sex marriages.
However, regardless of Florida’s recognition of same-sex marriage in
2015, the state’s law on common law marriage remained unaffected. A
common law marriage is defined as “[a] marriage that takes legal effect,
without license or ceremony, when a couple live together as husband and
wife, intend to be married, and hold themselves out to others as a married
couple.” Black’s Law Dictionary (11th ed. 2019). When common law
marriages were recognized in Florida, they were given the “same dignity
and recognition” as was accorded to ceremonial marriages. Budd v. J.Y.
Gooch Co., 27 So. 2d 72, 74 (Fla. 1946). Elements of common law marriage
from that time in Florida included cohabitation and the essential
requirement of a mutual agreement between the parties “to be husband
and wife.” Phillips v. Phillips, 215 So. 2d 83, 84 (Fla. 3d DCA 1968).
Florida ceased to recognize common law marriages in 1968 by enacting
section 741.211, Florida Statutes (1968):
No common-law marriage entered into after January 1, 1968,
shall be valid, except that nothing contained in this section
shall affect any marriage which, though otherwise defective,
was entered into by the party asserting such marriage in good
faith and in substantial compliance with this chapter.
In Obergefell, the Court did not compel states to convert all same-sex
relationships predating that decision into formally recognized marriages.
576 U.S. at 681. Obergefell’s holding required a state to recognize a same-
sex marriage that was lawful in another state; it did not directly address
the rights of same-sex couples who entered into some other arrangement
or agreement, regardless of whether it took the form of an informal
understanding or something more formal, such as a civil union or
domestic partnership. Id. In fact, at no time before the 2015 Obergefell
ruling, or since, has the Florida Legislature acted to formally recognize
such arrangements retroactively.
Rintoul argued in the trial court that he could nonetheless recover loss
of consortium damages as a surviving spouse if the jury found that he and
Caprio would have been married had it been legal at the time of injury. Id.
at 675–76. Rintoul claimed, and the jury apparently agreed, that but for
Florida’s unconstitutional prohibition on same-sex marriage, the couple
would have been married years before the accrual of the cause of action.
Rintoul emphasized at trial their long-time affection and commitment to
12
one another. The parties’ commitment to one another is not disputed, yet
it is also not relevant to establishing Rintoul’s legal right to consortium
damages. The fundamental flaw with his alleged standing to bring such a
claim is that Rintoul and Caprio were not married under the laws of
Florida, or any jurisdiction for that matter, at the time of the manifestation
of Caprio’s injury.
Under Florida law, it is axiomatic that marriage is an essential element
of a loss of marital consortium claim. A cause of action for this type of
loss of consortium, being incident to the marriage relationship, cannot
exist without it. Absent such a relationship, the right does not exist, and
thus no recovery may be had for loss thereof. Submitting the issue of
Rintoul and Caprio’s relationship to the jury under the circumstances was
an indirect attempt to improperly give retroactive legal recognition to what
was, for all intents and purposes, a common law marriage. Further, giving
retroactive legal recognition to a common law relationship based on the
jury’s interrogatory finding on a verdict form was also error. Even
assuming without deciding that Obergefell might have retroactive effect in
certain limited circumstances, Florida law does not permit courts to create
a “marriage by jury.”
Another well-established principle under Florida law is that a spouse
assumes the risk of premarital injuries upon marriage. See Tremblay, 390
So. 2d at 818; Fullerton v. Hosp. Corp. of Am., 660 So. 2d 389, 391 (Fla.
5th DCA 1995); Kelly, 211 So. 3d at 345. In Tremblay, the Second District
considered whether a consortium claim could be brought by the wife of a
decedent who succumbed to asbestos-related mesothelioma when their
marriage took place after the exposure causing the injury. 390 So. 2d at
816. The Second District held, “If an accident occurs when the
relationship of husband and wife does not exist, a person does not acquire
the right to claim a loss of consortium when [t]he [person] subsequently
marries the injured party.” Id. at 818. Three reasons exist for the rule: (1)
a person should not be permitted to marry a cause of action; (2) one
assumes with a spouse the risk of deprivation of consortium arising from
any prior injury; and (3) allowing loss of consortium claims arising from
premarital injuries would provide for near-unlimited liability for
tortfeasors. Green v. A.P.C., 960 P.2d 912, 918 (Wash. 1998); Stager v.
Schneider, 494 A.2d 1307, 1315 (D.C. 1985).
The Tremblay court explained the rationale for this common law rule:
Since a cause of action for personal injury and the derivative
rights flowing therefrom ordinarily accrue when the tort is
committed, the courts concluded that to permit an unmarried
13
person to claim loss of consortium upon his marriage to an
injured spouse would have the effect of allowing him to marry
into the cause of action.
390 So. 2d at 817.
In Kelly, this court relied on Tremblay to hold that a spouse who had
married the decedent after the occurrence of the latent injury that caused
the decedent’s ultimate demise was precluded from recovering loss of
consortium or pain and suffering damages under the Wrongful Death Act.
211 So. 3d at 345. This court reiterated that under the common law, a
loss of consortium claim required that the spouse be married to the person
before the injury. Id.
Kelly also considered whether the “marriage before injury rule” was
limited or whether it also applied in those cases where the injury is a latent
injury that did not reveal itself until after the parties marry. Id. at 346.
There, the plaintiff argued that in the case of latent injuries “there would
be no risk, or at least a diminished risk, of a spouse ‘marrying into a cause
of action.’” Id. To resolve that issue, this court relied on the Fifth District’s
decision in Fullerton. Id. In that case, a husband attempted to make a
consortium claim stemming from his wife’s exposure to radiation when she
was a student trainee studying radiation technology at the hospital.
Fullerton, 660 So. 2d at 390. Although she had been exposed before the
marriage, they did not realize that she was injured until three years after
they had married when she developed thyroid cancer. Id.
The Fifth District in Fullerton concluded that the husband could not
maintain a consortium claim because his wife’s injury occurred prior to
marriage, finding that “[i]n the absence of any statutory law on this point,
Florida courts are required to follow the common-law rule.” Id. at 391.
The Fifth District also extended the Tremblay rule to include a situation
where the plaintiffs were aware before the marriage that conduct that
ultimately caused the injury—the wife’s exposure to radiation—had
occurred even though they were not aware that she had been injured from
the exposure. 5 Id.; see also Bashaway v. Cheney Bros., 987 So. 2d 93, 95–
5The Fullerton court certified the following question to the Florida Supreme
Court:
WHETHER THE COMMON–LAW RULE SET FORTH IN TREMBLAY
V. CARTER, 390 SO. 2D 816 (FLA. 2D DCA 1980), PRECLUDES A
CLAIM FOR LOSS OF CONSORTIUM WHEN THE INJURY WHICH
FORMS THE BASIS OF THE CLAIM OCCURS PRIOR TO THE
14
96 (Fla. 1st DCA 2008) (common law “marriage before injury rule” applied
to prohibit loss of consortium claim by unmarried partner in same-sex
relationship).
Under Florida law, a personal injury “cause of action accrues . . . when
the injury was first inflicted, and not from the time when the full extent of
the damages sustained have been ascertained.” Larson & Larson, P.A. v.
TSE Indus., Inc., 22 So. 3d 36, 42 (Fla. 2009) (quoting Seaboard Air Line
R.R. Co. v. Ford, 92 So. 2d 160, 164 (Fla. 1956) (on reh’g)). As set forth in
Tremblay and Kelly, these accrual principles also apply to loss of marital
consortium claims. Because this cause of action is incident to the marital
relationship, our jurisprudence provides that if one spouse was injured
before marriage, the other spouse has no right to recover damages for loss
of consortium pertaining to that injury.
In Engle, the Florida Supreme Court stated that the “cut-off date” for
class membership was November 21, 1996—the date the trial court
recertified the class—and described the class as those “who have suffered,
presently suffer or who have died from diseases and medical conditions
caused by their addiction to cigarettes that contain nicotine.” Engle v.
Liggett Grp., Inc., 945 So. 2d 1246, 1274 (Fla. 2006) (emphasis omitted)
(quoting R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39, 40 (Fla. 3d
DCA 1996)). The “critical event” in establishing membership in the Engle
class “is not when an illness was actually diagnosed by a physician, but
when the disease or condition first manifested itself.” Engle, 945 So. 2d at
1276 (second emphasis added). “The phrase ‘who have suffered, presently
suffer or have died’ supports the view that the class should include only
those people who were affected in the past or who were presently suffering
at the time the class was recertified by the trial court.” Id. at 1275.
Applying the Engle decision, this court concluded in R.J. Reynolds
Tobacco Co. v. Ciccone, 123 So. 3d 604 (Fla. 4th DCA 2013), that the “key
point in determining Engle class membership is pinpointing when the
plaintiff began ‘suffering’ from the smoking-related illness or when the
illness ‘manifested.’” Id. at 615 (quoting Engle, 945 So. 2d at 1275). On
review of our decision, the Florida Supreme Court in R.J. Reynolds Tobacco
Co. v. Ciccone, 190 So. 3d 1028, 1030–31 (Fla. 2016), approved this court’s
definition of “manifestation,” stating that “manifestation” for purposes of
establishing membership in the Engle class means the point at which the
MARRIAGE BUT THE CAUSE OF ACTION DOES NOT ACCRUE
UNTIL THE INJURY IS DISCOVERED DURING THE MARRIAGE.
Since that case, the Florida Supreme Court has never resolved this question.
15
plaintiff began suffering from or experiencing symptoms of a tobacco-
related disease or medical condition. “Under the definition we adopt, the
plaintiff does not need to have been formally diagnosed or know that the
symptoms were tobacco-related prior to the ‘cut-off date’ for class
membership.” Id. However, the court consistently referred to whether the
plaintiff was “suffering from a tobacco-related disease” as the critical event
in establishing whether the disease or condition had manifested itself. Id.
at 1036.
Unlike in Kelly, this case deals with a patent injury and not a latent
injury. However, because even a latent injury that precedes marriage
would prevent a marital consortium claim, clearly a patent injury, as in
this case, would do so as well. Because any deviation from the common
law by statute must be unequivocal or so repugnant to the common law
that the two cannot co-exist, we held in Kelly that the Wrongful Death Act
could not be held to have changed the common law. Kelly, 211 So. 3d at
342. Thus, while Kelly is instructive as a latent injury case, it is not
completely dispositive when applied to a case involving a patent injury.
Recognizing Kelly’s precedential effect, Rintoul argues that we should
reconsider that decision. We decline to do so.
The cases which Rintoul cites in support of his argument that
Obergefell should be applied retroactively to establish a marriage pre-
existing 1996, when Caprio’s COPD first manifested, are inapplicable here.
Those cases, all from other states, deal with the retroactive recognition of
common law marriages for same-sex couples in those jurisdictions where
such marriages were otherwise recognized for heterosexual partners and
where there was factual support for finding the existence of a common law
marriage. For instance, in Ranolls v. Dewling, 223 F. Supp. 3d 613, 625
(E.D. Tex. 2016), the court applied Obergefell retroactively to permit a
spouse to assert a claim for damages for the wrongful death of the decedent
based upon the long-standing recognition of common law marriages in
Texas. Under Texas’s informal marriage statute, a common law marriage
may be established through the proffer of evidence that the couple “agreed
to be married and after the agreement they lived together in this state” and
“represented to others that they were married.” Id. at 618 (quoting Tex.
Fam. Code § 2.401); see also Swicegood v. Thompson, 865 S.E.2d 775 (S.C.
2021); LaFleur v. Plyfer, 479 P.3d 869 (Colo. 2021); In re J.K.N.A., 454 P.3d
642 (Mont. 2019); In re Estate of Carter, 159 A.3d 970 (Pa. Super. Ct.
2017). As noted in Anderson v. South Dakota Ret. Sys., 924 N.W.2d 146,
150 (S.D. 2019), courts applying Obergefell retroactively did so to recognize
a common law marriage which was legal in the state of the parties’
residence.
16
Although Rintoul and Caprio lived together for years and purchased
property together, they never attempted to obtain a marriage license. In
testimony, Rintoul stated that their commitment to each other was
reflected by the couple moving in together. Yet that conduct is common
among many couples, both same-sex and heterosexual. Such conduct
does not create a marriage. Without obtaining a marriage license, one
cannot be married in Florida. Even with retroactive application in certain
limited circumstances, Obergefell would not support recognizing a
marriage between Rintoul and Caprio before 1996.
In sum, the lower court in this case agreed to let a jury reach back in
time and establish a same-sex marriage even though Florida did not
recognize then, or now, common law marriage. Rintoul asks this court to
affirm the establishment of a “common law” marriage. However, juries
cannot create marriages in Florida, and courts cannot recognize one where
none existed. Though Rintoul attempts to frame the couple’s relationship
as “just like a marriage,” the fact remains undisputed that they were not
married under Florida law until 2015. And because Florida has not
recognized common law marriages since 1968, the result is clear: Rintoul
and Caprio would have had to be legally married at the time of the
manifestation of Caprio’s injury in 1996 to have a viable marital
consortium claim in this case. In accordance with Tremblay and Kelly,
Rintoul cannot claim damages for loss of consortium or pain and suffering
as a surviving spouse in either a survival action or under Florida’s
Wrongful Death Act. Therefore, we reverse Rintoul’s final judgment for
loss of consortium.
Closing Argument
PM and RJR also argue that plaintiff’s counsel’s closing arguments were
replete with improper arguments. We need not detail those arguments as
many of these same closing argument comments have already been
addressed in other cases. See, e.g., R.J. Reynolds Tobacco Co. v. Gafney,
188 So. 3d 53, 58 (Fla. 4th DCA 2016); R.J. Reynolds Tobacco Co. v.
Mahfuz, 324 So. 3d 495, 497 (Fla. 4th DCA 2021); R.J. Reynolds Tobacco
Co. v. Neff, 325 So. 3d 872, 879 (Fla. 4th DCA 2021). If this case is tried
again, counsel has been well warned to steer clear of such arguments.
Conclusion
For the foregoing reasons, we reverse the final judgment in favor of the
Estate and remand for further proceedings, including a new trial on all
issues. Sheffield requires the reversal of the punitive damage award and
remand for further proceedings in accordance with the statute as
17
amended. 329 So. 3d at 125. A new trial is also required because of the
admission of JUUL evidence and argument. Finally, we reverse the award
of damages to Rintoul for loss of consortium and pain and suffering
damages based upon Tremblay, Fullerton, and Kelly. We also certify
conflict with Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212 (Fla. 5th
DCA 2018).
Reversed and remanded for further proceedings.
LEVINE and KLINGENSMITH, JJ., concur.
LEVINE, J., concurs specially with opinion, in which KLINGENSMITH, J.,
concurs.
WARNER, J., concurs in part and dissents in part with opinion.
LEVINE, J., concurring specially.
I agree with the majority opinion but write to explain in greater detail
why we cannot “backdate” appellee’s marriage to predate the decedent’s
injury. Appellee asks us to make a “very narrow exception” to the common
law rule, recognized by this court in Kelly v. Georgia-Pacific, LLC, 211 So.
3d 340 (Fla. 4th DCA 2017), that a spouse must be married to the injured
spouse before the date of injury or exposure to injury. We cannot make
that “very narrow exception” to the law because the judiciary is without
power to do so—only the legislature in our system of separation of powers
can enact laws and create any statutory exceptions. The legislature
created the statutory acceptance of the common law in Florida in absence
of clear statutory guidance. See § 2.01, Fla. Stat. (2022). The legislature
also created the wrongful death statute which outlined when and who can
file claims under the law. See § 768.21, Fla. Stat. (2022).
No matter how sympathetic we are to appellee’s argument, we cannot
create or effectively “legislate” an exception to well-established law. We
cannot judicially “backdate” a marriage to allow appellee to proceed with
his claim. Neither can we create an effective “common law” marriage,
especially since the Florida Legislature has forthrightly and directly
abolished common law marriage by statute as of January 1, 1968. See §
741.211, Fla. Stat. (2022). Only the legislature can change the law. Thus,
based on the present law, we must reverse.
In Kelly v. Georgia-Pacific, LLC, this court concluded that “the Wrongful
Death Act does not, directly or indirectly, abrogate or supersede the
common law requirement that the spouse must be married to the injured
party at the time of the injury to recover for loss of consortium.” 211 So.
3d at 345. In Kelly, the spouse asked this court also to make an exception,
18
like in the present case, arguing that since the injury in Kelly was latent
“there would be no risk, or at least a diminished risk, of a spouse ‘marrying
into a cause of action.’” Id. at 346.
We declined to make an exception in Kelly, as we do in the present case,
because “[i]n the absence of any statutory law on this point, Florida courts
are required to follow the common-law rule.” Id. (quoting Fullerton v. Hosp.
Corp. of Am., 660 So. 2d 389, 391 (Fla. 5th DCA 1995)). Once common
law is established, the courts “cannot abrogate, modify, repeal, or amend
rules long established and recognized as parts of the law of the land.” State
v. Egan, 287 So. 2d 1, 7 (Fla. 1973). Instead, “it is the province of the
legislature and not of the court to modify the rules of the common law.”
Id. at 6. Thus, any statute modifying, or as appellee asks us to do, creating
an exception, must “explicitly, clearly, and unequivocally” supersede the
common law. Kelly, 211 So. 3d at 343. We found in Kelly that the
“legislature did not explicitly and clearly overrule the common law
limitation on loss of consortium when enacting the Wrongful Death Act”
and that “the common law marriage before injury rule was incorporated
into the Act.” Id. at 345. Thus, it is up to the legislature to create the
contours of legislation, and to decide whether to create statutory
“exceptions” to the law.
Legislatures in other states, such as Delaware, Illinois, and
Washington, have taken initiative to create a statutory process to backdate
the date of marriage for pre-existing domestic partnerships and civil
unions. Charles W. “Rocky” Rhodes, Loving Retroactivity, 45 Fla. St. U.L.
Rev. 383, 429 (2018); Del. Code Ann. tit. 13, § 218(e) (2022); 750 Ill. Comp.
Stat. 75/65(b) (2021); Wash. Rev. Code § 26.60.100(4) (2022); see also
Colo. Rev. Stat. § 14-15-118.5 (2022) (calculating the duration of the
marriage to include the time in which the parties were in a civil union).
Other states, such as Connecticut, New Hampshire, and Rhode Island,
by statute merged civil unions into marriages without backdating the date
of marriage to the date of the pre-existing civil union—the effective date of
the marriage is the date of recording of the marriage certificate. See Conn.
Gen. Stat. §§ 46b-38qq(b), 46b-38rr(a) (2022); N.H. Rev. Stat. Ann. §
457:46(II) (2022); R.I. Gen. Laws § 15-3.1-13 (2022).
In any event, it was the legislature in each state that made the decision
of what pre-existing domestic partnerships or civil unions would be
merged into marriages and whether the marriages would be “backdated”
or not. Absent such action from the Florida Legislature to create an
exception for same-sex couples prohibited from marrying prior to the
decedent’s injury, appellee is without redress. “To create such an
19
exception when one does not clearly exist would constitute impermissible
judicial legislation. The wisdom of creating such an exception should be
addressed to the legislature.” Martin v. Town of Palm Beach, 643 So. 2d
112, 115 n.7 (Fla. 4th DCA 1994) (citation omitted). Florida has never
passed statewide recognition of civil unions and domestic partnerships,
though a few Florida counties have recognized domestic partnerships via
ordinances. See Lowe v. Broward County, 766 So. 2d 1199 (Fla. 4th DCA
2000) (discussing the constitutionality of the Broward County Domestic
Partnership Act).
In the absence of legislative statutory guidance, Charron v. Amaral, 889
N.E. 2d 946 (Mass. 2008), is instructive. In Charron, appellant and Kalish
entered into a relationship starting in 1990. Id. at 947. They exchanged
rings in a private ceremony in 1994. Id. Appellant was diagnosed with
breast cancer in 2003. Id. at 948. Subsequently both appellant and Kalish
applied for a marriage license on the first day Massachusetts permitted
same sex marriage, in 2004, as a result of Goodridge v. Department of
Public Health, 798 N.E. 2d 941 (Mass. 2003). Charron, 889 N.E. 2d at 948.
The Supreme Judicial Court of Massachusetts rejected Kalish’s “argument
that we should allow her to recover for the loss of consortium because she
meets all other criteria for recovery and would have been married but for
the legal prohibition.” Id. at 950. In Charron, the court concluded that
the court in Goodridge “never stated that people in same-sex, committed
relationships (including the Goodridge plaintiffs, who had applied for, and
were denied, marriage licenses) would be considered married before they
obtained a marriage license.” Id. at 950-51. Further, the court noted it
did not “state that it was amending, in any way, the laws concerning the
benefits available to couples who marry to make up for past discrimination
against same-sex couples.” Id. at 951.
Similarly, in the present case, we cannot treat a couple married prior
to obtaining a marriage license. We cannot backdate, or judicially create,
a nonexistent marriage license. Nor, like in Charron, can we “amend” the
laws concerning “the benefits” available for appellee. This court may not
create a license or “engage in forensic retrospective marriage
construction.” Hawkins v. Grese, 809 S.E. 2d 441, 449 (Va. Ct. App. 2018)
(“That Hawkins and Grese were legally forbidden to marry in the
Commonwealth at the time they began their relationship does not
establish that they would have exercised the option if it were available.”);
see also Lake v. Putnam, 894 N.W. 2d 62, 66 (Mich. Ct. App. 2016) (“While
we acknowledge that the issue presented in this case is complex, we simply
do not believe it is within courts’ discretion to, at the request of one party
and in light of the United States Supreme Court’s decision in Obergefell v.
Hodges, 576 U.S. [644] (2015), retroactively transform an unmarried
20
couple’s past relationship into marriage for the purpose of custody
proceedings.”).
Anderson v. South Dakota Retirement System, 924 N.W. 2d 146 (S.D.
2019), is also persuasive. An individual retired in 2012 and married
appellant in 2015 right after Obergefell was decided. Id. at 147-48. That
retired individual died in 2017, and appellant sought survivor’s benefits.
Id. at 148. The South Dakota law defined the surviving spouse eligible for
survivor’s benefits as a “person who was married to the member at the
time of the death of the member and whose marriage was both before the
member’s retirement and more than twelve months before the death of the
member.” Id. at 149 (citation omitted). The court confronted the issue of
whether it may “create a marriage post hoc.” Id. at 150. The South Dakota
court stated that “assuming without deciding that Obergefell applies
retroactively, there was no marriage, act of solemnization, or common-law
marriage to refer back to.” Id. Further, South Dakota “does not recognize
common-law marriage, requiring that a marriage ‘be solemnized,
authenticated, and recorded.’” Id. at 151 (citation omitted). The court
concluded that appellant could not meet the statutory definition of a
spouse and thus was not entitled to survivor’s benefits. Id.; see also In Re
Estate of Leyton, 22 N.Y.S.3d 422, 422 (N.Y. App. Div. 2016) (Under New
York law, Obergefell “does not compel a retroactive declaration that the
‘Commitment Ceremony’ entered into by decedent and Hunter in 2002,
when same-sex marriage was not recognized under New York law, was a
legally valid marriage for purposes of the ‘former spouse’ provisions . . . .”).
In the present case, like South Dakota in Anderson, Florida does not
recognize common-law marriages. See § 741.211, Fla. Stat. (2022)
(refusing to recognize any common law marriages entered into after
January 1, 1968). States recognizing common law marriage have in
certain circumstances allowed same-sex couples to backdate their
marriage as these states statutorily do not require a marriage license. See
In re Estate of Carter, 159 A.3d 970, 977-78 (Pa. Super. Ct. 2017)
(“Consequently, because opposite-sex couples in Pennsylvania are
permitted to establish, through a declaratory judgment action, the
existence of a common law marriage prior to January 1, 2005, same-sex
couples must have that same right.”) (citation omitted); LaFleur v. Pyfer,
479 P. 3d 869, 874 (Colo. 2021).
The dissent says “we should reconsider” Kelly, referencing the Florida
Supreme Court’s decision in Sheffield. However, Sheffield does not affect
Kelly. Sheffield determined the date of injury for purposes of entitlement
to punitive damages under section 768.73. In contrast, Kelly involved the
issue of the date of marriage for determining standing to proceed on an
21
action for non-economic damages arising from loss of consortium. The
dissent conflates these two disparate issues. The dissent’s position, a
“marriage after injury” rule, would allow a person to marry into an active
lawsuit only one day before death, effectively gutting the common law rule.
This is contrary to the dictates of Kelly and Ripple v. CBS Corp., 47 Fla. L.
Weekly D750 (Fla. 4th DCA Mar. 30, 2022).
In summary, there is no statutory basis in Florida to create or
“backdate” a marriage even assuming the parties had solemnized a civil
union or domestic partnership at a date prior to the injury. From the time
preceding the adoption of the United States Constitution, the founding
generation realized that separation of powers was of paramount concern,
not just as a structure of government, but also as a guardrail to safeguard
the rights of the citizenry.
A little attention to the subject will convince us, that these
three powers ought to be in different hands, and independent
of one another, and so ballanced [sic], and each having that
check upon the other, that their independence shall be
preserved—If the three powers are united, the government will
be absolute, whether these powers are in the hands of one or
a large number. The same party will be the legislator, accuser,
judge and executioner; and what probability will an accused
person have of an acquittal, however innocent he may be,
when his judge will be also a party.
If the legislative and judicial powers are united, the maker
of the law will also interpret it; and the law may then speak a
language, dictated by the whims, the caprice, or the prejudice
of the judge, with impunity to him . . . .
Theophilus Parsons, Essex Result (1778), reprinted in Memoir of
Theophilus Parsons, Chief Justice of the Supreme Judicial Court of
Massachusetts; with Notices of Some of His Contemporaries 373
(Theophilus Parsons ed. 1859).
The judiciary cannot create that missing statutory basis, otherwise
“[t]he accumulation of all powers, legislative, executive, and judiciary”
would be “in the same hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may justly be pronounced the very
definition of tyranny.” The Federalist No. 47, at 298 (James Madison)
(Clinton Rossiter ed., 2003).
22
WARNER, J., concurring in part and dissenting in part.
I concur with the majority opinion except the majority’s declination to
reconsider Kelly v. Georgia-Pacific, LLC, 211 So. 3d 340 (Fla. 4th DCA
2017), although I acknowledge that another panel of this court has
recently reaffirmed this court’s adherence to Kelly. See Ripple v. CBS
Corp., 47 Fla. L. Weekly D750 (Fla. 4th DCA Mar. 30, 2022). I believe that
Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114 (Fla. 2021), affects
the analysis of Kelly, and for that reason, I think we should reconsider it.
I would adopt the analysis of Judge Taylor’s dissent in Kelly. In
addition, I would point out that a loss of consortium claim is a derivative
claim to the claim of the injured spouse. “[The spouse’s] right of action is
a derivative right and she may recover only if her husband has a cause of
action against the same defendant.” Gates v. Foley, 247 So. 2d 40, 45 (Fla.
1971). Because the cause of action for loss of consortium is derivative, it
must accrue when the injured spouse’s claim accrues. See Tremblay v.
Carter, 390 So. 2d 816, 817 (Fla. 2d DCA 1980). Therefore, the common
law rule requiring a spouse to be married at the time of the injury makes
sense, because that generally is when the tort cause of action accrues for
the injured spouse and thus when any derivative claim would accrue.
The Wrongful Death Act, however, created a new, direct cause of action
not recognized at common law. As noted in Sheffield, 329 So. 3d at 123,
the cause of action for wrongful death, and the damages permitted under
the Act, accrue at the date of death, not the date of injury, and the law at
the date of death is to be applied. “[A]bsent a death, there can be no ‘cause
of action’ for wrongful death.” Id. At the date of death, the common law
provided no right to recover damages for injuries to a decedent or a spouse.
The Wrongful Death Act changed this. The statute authorizes the recovery
to the surviving spouse 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. (2019). This is a direct cause of action, not a
derivative cause. And it allows the spouse to recover not only loss of
consortium but also for pain and suffering, an element of damage not
allowed under common law.
Kelly held that the common law “marriage before injury” rule was not
abrogated by the statute because “[t]he presumption is that no change in
the common law is intended unless the statute is explicit and clear in that
regard.” 211 So. 3d at 344 (quoting Thornber v. City of Ft. Walton Beach,
568 So. 2d 914, 918 (Fla. 1990)). Thus, “[u]nless a statute unequivocally
states that it changes the common law, or is so repugnant to the common
23
law that the two cannot coexist, the statute will not be held to have
changed the common law.” Id.
I find Kelly’s reliance on Thornber to be misplaced. In Thornber, the
issue presented to the court was whether city council members could
receive reimbursement for attorney’s fees expended successfully enjoining
a recall petition. 568 So. 2d at 916. The trial court denied fee entitlement
to the council members under section 111.07, Florida Statutes, because
the statute allowed for reimbursement of fees for the defense of an action.
The council had initiated the action and the trial court found that section
111.07 was the exclusive method to obtain reimbursement. Id.
On petition for certiorari, the Florida Supreme Court explained that at
common law, Florida officials were entitled to reimbursement for fees
expended while defending against litigation arising from the performance
of their duties and while serving a public purpose. Id. at 916–17. For the
purposes of the common law, the court found that the council members
were “defending” from an offensive posture of seeking to enjoin the recall
petition. Thus, under the common law, the council members were entitled
to their fees. Id. at 917. The court then turned to the statute and
concluded that it did not change the common law “completely” so as to
provide the exclusive method of securing reimbursement for fees expended
by public officials. Id. at 918. “Whether a statutory remedy is exclusive
or merely cumulative depends upon the legislative intent as manifested in
the language of the statute. The presumption is that no change in the
common law is intended unless the statute is explicit and clear in that
regard.” Id. “We agree with the district court that section 111.07
recognizes the common law but disagree that the legislature intended this
statute to replace the common law completely.” Id.
The statute in Thornber acted on an existing common law principle, and
the supreme court found that both the common law and the statute could
co-exist, because the statute did not expressly exclude the common law.
Contrast the statute in Thornber with the Wrongful Death Act. The Act
created a cause of action where no cause of action at common law existed.
The Act replaced the common law “completely.”
The Legislature provided for an independent action which allowed a
surviving spouse to recover for loss of consortium and pain and suffering
caused by the death of the other spouse. See § 768.21(2), Fla. Stat. (2019).
Kelly removes that cause of action so that the surviving spouse who is not
married at the time of an earlier injury has no cause of action. To limit
the spouse’s damages because of the date of the marriage adds
qualifications to the statutory language not present within its terms.
24
Further, the Act repudiates the common law principle which excludes
any post-death action. The Act provides, “[i]t is the public policy of the
state to shift the losses resulting when wrongful death occurs from the
survivors of the decedent to the wrongdoer. [The Act is] remedial and shall
be liberally construed.” § 768.17, Fla. Stat. (2019). Hence, the Act is
designed “to substitute the financial resources of the wrongdoer for the
resources of the decedent” to meet the decedent’s financial obligations and
“to prevent a tortfeasor from evading liability for his or her misconduct
when such misconduct results in death[.]” Wagner, Vaughan, McLaughlin
& Brennan, P.A. v. Kennedy Law Grp., 64 So. 3d 1187, 1191 (Fla. 2011).
Practically, application of the “marriage before injury” rule when the
decedent’s only survivor is a surviving spouse, as in this case, subverts
this stated purpose by precluding the surviving spouse from bringing a
claim. Application of the marriage before injury rule to the Act prevents
cost shifting to the wrongdoer as intended by the legislature and allows a
wrongdoer to evade liability. 6
I would hold that the surviving spouse is entitled to recover the
damages allowed in the Act. The Legislature created a cause of action not
recognized by the common law and thus the Act in its entirety is contrary
to the common law. It is within the Legislature’s prerogative to set the
elements of a cause of action. If the Legislature intended to bar recovery
for spouses who did not marry the decedent prior to the injury, even
though the spouses were married at the date the cause of action accrued,
i.e. the death, let the Legislature say so. It is not the place of the judiciary
to disregard the plain language of the Act or to add words to alter its
express purpose. I would also certify conflict between Kelly and Domino’s
Pizza, LLC v. Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018).
* * *
Not final until disposition of timely filed motion for rehearing.
6 In his concurrence, Judge Levine suggests that my analysis is incorrect because
it would allow a person to marry into an active lawsuit only one day before the
spouse’s death and then recover as a surviving spouse. While technically such a
result could occur, the concern overlooks the fact that “the jury system continues
to be the finest method ever devised for the resolution of disputes.” See Devoney
v. State, 717 So. 2d 501, 505 (Fla. 1998). A jury, in weighing the evidence offered
by both sides to determine a surviving spouse’s loss of consortium and pain and
suffering, would certainly take into consideration the length of the marriage.
25