loss of consortium claim in Florida

2019See § 627.737, Fla. Stat. (2012) ("In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided ... a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience ... only in the event that the injury or disease consists [of, inter alia ,] ... [p]ermanent injury within a reasonable degree of medical probability ...."); Randall v. Walt Disney World Co. , 140 So.3d 1118 , 1121 (Fla. 5th DCA 2014) ("Florida case law recognizes that loss-of-consortium is a separate cause of act

1997Rather, instead of reading these cases as standing for the proposition that the loss of consortium claim survives the primary action, we read these cases to stand for the proposition that the primary cause of action for personal injury and the derivative cause of action for loss of consortium are "separate and distinct." Busby, 80 So.2d at 676 (holding that a husband's consortium claim is "separate and distinct" from his wife's personal injury claim and may be maintained without joinder of the injured wife); Piper, 523 So.2d at 197-98 (holding that a wife's failure to give notice by filing her

2022In 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).

2014In Gates v. Foley, 247 So.2d 40, 41 (Fla.1971), the supreme court abrogated prior decisions and held that “deprivation to the wife of the husband’s companionship, affection and sexual relation (or consortium, as above defined) constitutes a real injury to the marital relationship and one which should be compensable at law if due to the negligence of another.” In Resmondo , the first district held that where a husband settled a claim with a consent judgment without finding fault, a wife’s loss-of-consortium claim is still actionable. 265 So.2d at 73 .

2019See Boswell , 211 So.3d at 212 ; Effective Teleservices, Inc. , 132 So.3d at 339 .

2019See Boswell , 211 So.3d at 212 ; Effective Teleservices, Inc. , 132 So.3d at 339 .

2017See, e.g., Anderson v. Eli Lilly & Co., 79 N.Y.2d 797, S80 N.Y.S.2d 168, 588 N.E.2d 66, 67-68 (1991); Doe v. Cherwitz, 518 N.W.2d 362, 362 (Iowa 1994); Gross v. Sauer, No. 37 83 58, 1992 WL 205277 , *2 (Conn. Super.

1995See Doe, 518 N.W.2d at 365 . *391 In the absence of any statutory law on this point, Florida courts are required to follow the common-law rule.

2015Cf. Blanton v. Godwin, 98 So. 3d 609, 611 (Fla. 2d DCA 2012) (considering a proposal for settlement made by plaintiff who brought only a loss of consortium claim against one defendant resulting from his coplaintiff-wife's injury to be its own separate proposal).

2015Cf. Blanton v. Godwin, 98 So.3d 609, 611 (Fla. 2d DCA 2012) (considering a proposal for settlement made by plaintiff who brought only a loss of consortium claim against one defendant resulting from his coplaintiff-wife’s injury to be its own separate proposal).

1991Frye v. Suttles, 568 So.2d 983 (Fla. 1st DCA 1990); Smith v. Houston, 551 So.2d 551 (Fla. 2d DCA 1989), review denied, 564 So.2d 1086 (Fla. 1990); Lofley v. Insultech, Inc., 527 So.2d 902 (Fla. 2d DCA 1988).

1989In Lofley v. Insultech, Inc., 527 So.2d 902 (Fla. 2d DCA 1988), this court presented an overview of cases involving denial of a new trial on a loss of consortium claim.

2014In Ryter , the first district provided that “[t]he wife owns the cause of action [and that] [i]t is her property right in her own name.” 291 So.2d at 57 .

1997Rather, instead of reading these cases as standing for the proposition that the loss of consortium claim survives the primary action, we read these cases to stand for the proposition that the primary cause of action for personal injury and the derivative cause of action for loss of consortium are "separate and distinct." Busby, 80 So.2d at 676 (holding that a husband's consortium claim is "separate and distinct" from his wife's personal injury claim and may be maintained without joinder of the injured wife); Piper, 523 So.2d at 197-98 (holding that a wife's failure to give notice by filing her

2014In Gates v. Foley, 247 So.2d 40, 41 (Fla.1971), the supreme court abrogated prior decisions and held that “deprivation to the wife of the husband’s companionship, affection and sexual relation (or consortium, as above defined) constitutes a real injury to the marital relationship and one which should be compensable at law if due to the negligence of another.” In Resmondo , the first district held that where a husband settled a claim with a consent judgment without finding fault, a wife’s loss-of-consortium claim is still actionable. 265 So.2d at 73 .

1997Rather, instead of reading these cases as standing for the proposition that the loss of consortium claim survives the primary action, we read these cases to stand for the proposition that the primary cause of action for personal injury and the derivative cause of action for loss of consortium are "separate and distinct." Busby, 80 So.2d at 676 (holding that a husband's consortium claim is "separate and distinct" from his wife's personal injury claim and may be maintained without joinder of the injured wife); Piper, 523 So.2d at 197-98 (holding that a wife's failure to give notice by filing her

2011Co., 655 So.2d 106, 108 (Fla. 1st DCA 1995) (holding that evidence of a husband's hospitalization for three days and the difficulty that he had experienced in sleeping and participating in family activities required reversal of the trial court's denial of a motion for new trial on a loss of consortium claim); Frye, 568 So.2d at 986 (holding that uncontradicted evidence of a husband's inability to participate in the leisure activities he and his wife had both enjoyed before the accident and of the necessity for the wife to assume greater responsibility in raising their children and to help the

2011Co., 655 So.2d 106, 108 (Fla. 1st DCA 1995) (holding that evidence of a husband’s hospitalization for three days and the difficulty that he had experienced in sleeping and participating in family activities required reversal of the trial court’s denial of a motion for new trial on a loss of consortium claim); Frye, 568 So.2d at 986 (holding that uncontradicted evidence of a husband’s inability to participate in the leisure activities he and his wife had both enjoyed before the accident and of the necessity for the wife to assume greater responsibility in raising their children and to help the

1991Frye v. Suttles, 568 So.2d 983 (Fla. 1st DCA 1990); Smith v. Houston, 551 So.2d 551 (Fla. 2d DCA 1989), review denied, 564 So.2d 1086 (Fla. 1990); Lofley v. Insultech, Inc., 527 So.2d 902 (Fla. 2d DCA 1988).

1990Smith v. Houston, 551 So.2d 551, 552 (Fla. 2d DCA 1989); Lofley v. Insultech, Inc., 527 So.2d 902, 904 (Fla. 2d DCA 1988).

2022Appellant now appeals these final judgments, which have been consolidated before us. 2 The complaint also included a negligence claim against Merrill and a loss of consortium claim by appellant’s wife. 4 STANDARD OF REVIEW “The standard of review of the entry of summary judgment is de novo.” Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 479 (Fla. 4th DCA 2006).

2021See Conti v. Auchter, 266 So. 3d 1250, 1252 (Fla. 5th DCA 2019) (reversing the trial court’s denial of the defendant’s motion for fees where the defendant presented both argument and evidence establishing that the loss of consortium claim was inextricably intertwined with the primary liability claim).

2021See Conti v. Auchter, 266 So. 3d 1250, 1252 (Fla. 5th DCA 2019) (reversing the trial court’s denial of the defendant’s motion for fees where the defendant presented both argument and evidence establishing that the loss of consortium claim was inextricably intertwined with the primary liability claim).

2017See, e.g., Anderson v. Eli Lilly & Co., 79 N.Y.2d 797, S80 N.Y.S.2d 168, 588 N.E.2d 66, 67-68 (1991); Doe v. Cherwitz, 518 N.W.2d 362, 362 (Iowa 1994); Gross v. Sauer, No. 37 83 58, 1992 WL 205277 , *2 (Conn. Super.

2017See, e.g., Anderson v. Eli Lilly & Co., 79 N.Y.2d 797, S80 N.Y.S.2d 168, 588 N.E.2d 66, 67-68 (1991); Doe v. Cherwitz, 518 N.W.2d 362, 362 (Iowa 1994); Gross v. Sauer, No. 37 83 58, 1992 WL 205277 , *2 (Conn. Super.

2017See Zonzos v. Rosen, 467 So.2d 305, 308 (Fla. 1985) (explaining that children in Florida have no common law right to bring a loss of consortium claim).

2017See Zorzos v. Rosen, 467 So. 2d 305, 308 (Fla. 1985) (explaining that children in Florida have no common law right to bring a loss of consortium claim).

2015Further, in Materiale , the Second District Court of Appeal noted that apportionment of the settlement amount can be particularly important where a loss of consortium claim is involved because a defendant may elect to settle the consortium claim for a minimal amount, but proceed to trial on the primary claim. 787 So.2d at 175 ; see also id. at 176 (Casanueva, J., concurring) (“[Wjhere a consortium claim is joined with a claim for personal injuries, the former claim may be more amenable to settlement than the latter because it may involve less money.”).

2015Further, in Materiale , the Second District Court of Appeal noted that apportionment of the settlement amount can be particularly important where a loss of consortium claim is involved because a defendant may elect to settle the consortium claim for a minimal amount, but proceed to trial on the primary claim. 787 So.2d at 175 ; see also id. at 176 (Casanueva, J., concurring) (“[Wjhere a consortium claim is joined with a claim for personal injuries, the former claim may be more amenable to settlement than the latter because it may involve less money.”).

2011Hagens v. Hilston, 388 So.2d 1379, 1381 (Fla. 2d DCA 1980).

2011Hagens v. Hilston, 388 So.2d 1379, 1381 (Fla. 2d DCA 1980).

2011Co., 655 So.2d 106, 108 (Fla. 1st DCA 1995) (holding that evidence of a husband's hospitalization for three days and the difficulty that he had experienced in sleeping and participating in family activities required reversal of the trial court's denial of a motion for new trial on a loss of consortium claim); Frye, 568 So.2d at 986 (holding that uncontradicted evidence of a husband's inability to participate in the leisure activities he and his wife had both enjoyed before the accident and of the necessity for the wife to assume greater responsibility in raising their children and to help the

2011Co., 655 So.2d 106, 108 (Fla. 1st DCA 1995) (holding that evidence of a husband’s hospitalization for three days and the difficulty that he had experienced in sleeping and participating in family activities required reversal of the trial court’s denial of a motion for new trial on a loss of consortium claim); Frye, 568 So.2d at 986 (holding that uncontradicted evidence of a husband’s inability to participate in the leisure activities he and his wife had both enjoyed before the accident and of the necessity for the wife to assume greater responsibility in raising their children and to help the

2001See Reyes, 688 So.2d at 312 .

2001The majority’s decision to follow Pavolini v. Bird, 769 So.2d 410, 413 (Fla. 5th DCA 2000), which holds that a claimant who has a loss of consortium claim that is derivative of her injured spouse’s medical malpractice claim is not required to send a notice of intent to initiate litigation, is contrary to the holding of St.

1998See Wilkerson v. Alachua County, 675 So.2d 951 (Fla. 1st DCA 1996); Sierra v. Public Health Trust of Dade County, 661 So.2d 1296 (Fla. 3d DCA 1995).