Legal Memorandum: Legislative Intent in FL

Issue: Are the children of the second spouse to die in a common accident barred from seeking recovery for wrongful death in Florida?

A wrongful death cause of action contemplates recovery for the people the decedent leaves behind.  Originally enacted in 1972, the Wrongful Death Act merged the survival action for personal injuries and the wrongful death action into one lawsuit.  Florida Clarklift, Inc. v. Reutimann, 323 So. 2d 620, 641 (Fla. 2d Dist. Ct. App. 1975).  This eliminated claims for pain and suffering from the time of injury up through the time of death, but allowed the decedent’s close surviving relatives to recover for their personal pain and suffering.  Id. at 641.

The philosophy behind the Act is to afford recovery for the living, rather than the dead.  Id.  As noted by the Florida Law Revision Commission in its recommendations, “the dead are beyond compensation for either physical or mental suffering.”  Id. at 642 (citing Florida Law Revision Commission, Reconsideration & Report on Florida’s Wrongful Death Statue, Dec. 1969, pp. 41-42). 

The Wrongful Death Act is remedial in nature, and “shall be liberally construed.”  Fla. Stat. § 768.17 (2000).  The stated legislative intent reads: “It 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.”  Id.

In the King case, one spouse died at the scene of the accident and the other died en route to the hospital.  King v. Font Corp., 612 So. 2d 662, 663 (Fla. 2d Dist. Ct. App. 1993).  The surviving children were […]