Spouse Married After Injury Can Still Seek Damages in Asbestos Claim, Florida High Court Rules

The Florida Supreme Court has opened the door a little wider to wrongful death claims from people who weren’t married to victims at the time of injury, upsetting what defense lawyers said was a decades-old common-law practice.

In Ripple vs. CBS Corp. the court on Thursday overturned part of a state appeal court’s decision and found that a surviving spouse can recover damages, even if she had married the sickened worker after he was diagnosed and just before he died.

Florida’s 4th District Court of Appeals’ ruling in 2022 conflicted with the 5th District’s opinion in a 2018 case, Domino’s Pizza vs. Wiederhold. The high court sided with the 5th District, potentially paving the way for more claims by companions of mesothelioma and cancer victims.

“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)” of the Florida statutes, the Supreme Court concluded. “We reject Respondents’ argument that, in these circumstances, the common law ‘marriage before injury’ rule bars recovery under section 768.21(2).”

Defense attorneys in the case could not be reached for comment Thursday. But in an amicus brief, the Coalition for Litigation Justice, an association of insurance companies, had argued that allowing an unmarried companion to bring wrongful death claims goes against decades of common-law marriage rules observed by courts in Florida and around the country.

“Courts universally recognize that the marriage-before injury is needed because ‘a line must be drawn somewhere as to liability,'” Miami attorney Daniel Rogers wrote in the brief, citing previous court rulings. The long-established rule, requiring a marriage before the injury is known, ensures that “a person may not marry into a cause of action.”

Otherwise, many resources will be spent handling claims that should never have been brought, he noted.

But the Supreme Court justices rejected the insurers’ and the manufacturer’s arguments, finding that Florida’s 1972 Wrongful Death Act allows surviving spouses to seek damages. Period.

“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,” the justices wrote.

Despite previous court decisions and the defense arguments, “we do not think that the common law ‘marriage before injury’ rule bars Ripple from recovering damages.”

The Coalition for Litigation Justice members include: Century Indemnity Co.; Great American Insurance Co.; Nationwide Indemnity Co.; Allianz Reinsurance America, Inc.; Resolute Management, Inc., a third-party administrator for numerous insurers; and TIG Insurance Co.

A wrongful death claim is not simply a continuation of an injury or loss of consortium claim, the court noted. “It is not clear that the ‘marriage before injury’ rule, a common law defense to a cause of action based on loss of consortium, can also serve to eliminate an element of statutory damages,” the opinion reads.

The case stemmed from the marriage of Ripple and her longtime boyfriend Richard Counter. Counter had worked with asbestos in the 1950s and 1960s, and was diagnosed with mesothelioma on May 22, 2015, the court explained. Less than two months later, Counter married Ripple, the woman he had lived with for years.

A few weeks later, Counter filed a personal injury complaint against CBS Corp., an asbestos manufacturer, and others. Four months after that, Counter died. Ripple, representing the estate, then amended the complaint to include a wrongful death claim.

The Supreme Court justices agreed that its Ripple ruling now sets up something of an anomaly. Under Florida law, Ripple could not have pursued an action for loss of consortium because the couple was not married at the time of the injury. Yet, because of Counter’s death from that injury, part of Ripple’s recovery might include damages for the loss of companionship and protection from the date of the injury.

“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,” the justices wrote.

Also, a jury can always determine if the late-date wedding was an attempt by Ripple to marry into the claim.

The justices remanded the case to the lower courts for further proceedings.