The District Courts are split – Does a loss-of-consortium claim survive the death of deceased spouse?

Recently, the Fifth District Court of Appeal, in Randall v. Walt Disney World, 5D12-4353, reversed a trial court ruling and found that a surviving spouse’s loss-of-consortium claim can survive the death of a spouse.
Mr. & Mrs. Randall were on a roller coaster at Walt Disney World, where it was alleged that Mr. Randall sustained head and neck injuries. Subsequently, Mr. Randall filed an injury claim against Walt Disney, and Mrs. Randall filed a loss of consortium claim against Walt Disney.  After Mr. Randall died and a personal representative was not substituted, the trial court dismissed both the personal injury claim and Mrs. Randall loss of consortium claim.
With the decision, the Fifth District certified conflict with ACandS, Inc. v. Redd, 703 So. 2d 492 (Fla. 3d DCA 1997), which decided that a cause of action for a loss of consortium does not survive the death of the injured spouse.  In ACandS, the Third District concluded that loss of consortium, when joined with the primary cause of action, was  a byproduct and could not exist in the lack of the primary cause of action.
The Fifth DCA substantiated its’ disagreement with the Third DCA by penning the following:
The third district implicitly concluded that because the surviving spouse can recover from the date of injury, the loss of consortium from the date of injury merges with the continuing injury suffered after death, and the surviving spouse therefore recovers. We find this analysis problematic because it considers only a situation where a wrongful death action can be maintained. Indeed, under the third district’s interpretation, where the injured spouse dies from an injury unrelated to the personal injury action, the surviving spouse who suffered a loss of consortium would not be able to maintain a wrongful death action. Therefore, the surviving spouse would lose a vested right to recover for a loss of consortium from the date of injury to the date of death. This cannot be the result the Legislature intended and, here, that would be the effect.
If you would like to read the opinion of the Fifth District Court of Appeal in Randall, click here:

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