This week a Florida appellate court issued a chilling opinion preventing a widow from collecting wrongful death damages–following the death of her husband from exposure to asbestos. John Kelly had worked in construction from 1973 to 1974. He married Janis Kelly in 1976.  In 2014 he was diagnosed with mesothelioma, and he and his wife sued several defendants, including Georgia-Pacific and other manufacturers of asbestos, for strict liability.(( The other defendants include: UNION CARBIDE CORP., PREMIX- MARBLETITE MANUFACTURING CO., and IMPERIAL INDUSTRIES, INC.,))

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The defendants moved to dismiss the claim of Mrs. Kelly, as his surviving spouse, for wrongful death damages on the basis that they were not married at the time that Mr. Kelly would have been exposed to the asbestos. The Honorable Carol Lisa Phillips, a Broward County Florida trial court judge, agreed with the defendants and dismissed the case on the grounds that Florida common law requires that in order for a non-injured spouse to be entitled to receive compensation for the loss of consortium, services, and other damages for the injuries of the injured spouse, the couple must first be legally married. This legal concept is known as the Marriage Before Injury Rule, and in this case, at the time of the injury, the Kellys were not yet married.

Mrs. Kelly and her lawyers appealed the dismissal to Florida’s 4th District Court of Appeal, which issued a detailed opinion affirming the trial court’s dismissal.

The Appellate court reasoned that Florida’s Wrongful Death Act does not supersede Florida’s common law requirement that a spouse must be married to the decedent before the date of the decedent’s injuries to recover money for loss of consortium. In other words, the key question was did the Wrongful Death Act give an estate’s representatives and survivors a legal remedy not available in common law? To do that, the court would have had to find that The Act “explicitly,” “clearly,” and “unequivocally” abrogated common law, and the trial court and the appellate court were unwilling to come to that conclusion.((JANIS KELLY, as Personal Representative of the Estate of John K. Kelly, Appellant, v. GEORGIA-PACIFIC, LLC, UNION CARBIDE CORP., PREMIX- MARBLETITE MANUFACTURING CO., and IMPERIAL INDUSTRIES, INC., Appellees. 4th District. Case No. 4D15-4666. February 22, 2017. ))

As a result, a woman who was married for nearly 40 years is unable to get justice, namely monetary compensation she would and should have been entitled to for her loss of her husband. Furthermore, this decision not only deprives her of justice but also allows the wrongdoers–the makers and sellers of deadly asbestos–to escape accountability for their conduct.

One of the most offensive reasons the appellate court cites in support of its opinion is that by preventing the Widow Kelley from receiving compensation in this instance, they have dissuaded other similarly situated people from “marrying into” a potential personal injury case–making it sound as though people are window-shopping for other people to marry solely so they can inherit a wrongful death cause of action.

The court goes on to illustrate a potentially ghoulish example of a couple living together, and getting married “a day before the injured party dies” and allowing the “newly wedded surviving spouse to recover damages all the way back to when the decedent was first injured.”

As a lawyer who has represented grieving families in wrongful death cases across the state of Florida–in slip and falls, medical malpractice, nursing home abuse and car, truck, and motorcycle accidents–I am unaware of a single published opinion of a court’s striking a wrongful death claim of a surviving spouse because they were not married at the time of the injury.  This would be tantamount to a case of medical malpractice involving failure to diagnose cancer being dismissed if a man has a slow-growing tumor that is not diagnosed, gets married for ten years, has a family, and when the tumor is eventually found, he sues his doctors, dies, and his surviving wife’s case is dismissed because they were not married at the time of the misdiagnosis.

This result in the Kelly case is offensive, frightening, and sad. In addition to offering my sincere condolences to Mrs. Kelly and her family, I hope Mrs. Kelly and her lawyers can take this matter to Florida’s Supreme Court as this is one of the worst decisions I have ever seen.


Under Florida’s Wrongful Death Act, the personal representative of an estate or the deceased’s survivors are entitled to recover for the benefit of the decedent’s survivors and estate only certain damages.  Who is considered to qualify as a survivor in a Florida wrongful death case is very specific. Typically, survivors are defined as the decedent’s . . .

1 .Spouse
2. Children
3. Parents
4. Blood relatives and adoptive brothers and sisters and, when partly or wholly dependent on the decedent for support or services,
5. Children born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.(( § 768.18(1), Fla. Stat. (2015).))


Survivors are able to recover the value of the loss of the decedent’s support and services from the date of the injury to her or his death, with interest, and the future loss of support and services from the date of death to the present time. To evaluate this loss, the amount of the decedent’s probable net income that would have been available for distribution to that particular survivor, as well as the replacement value of the decedent’s services–such as baby sitting, cooking, lawn and garden care, etc.–may be considered.

To figure out the future losses, the life expectancies of both the survivor and the decedent, and–in the case of minor survivors–the number of remaining years of minority may be considered.  A surviving spouse can and should also recover money for the loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.(( § 768.21, Fla. Stat. (2015). ))


Our lawyers have 30 years of combined legal experience in representing the families of victims in cases of wrongful death, accident, medical malpractice, and defective products. If you have lost a family member because of an individual’s negligence or a corporation’s greed, contact our law firm today for a free initial consultation.

Speak to one of our lawyers about your potential case today, toll-free at 1-866-597-4529, locally at 305-441-0440, by email at [email protected] or SKYPE. We represent people across the State of Florida, from Jacksonville to Key West, in all kinds of personal injury cases, such as slip and falls, hospital and medical malpractice cases, and auto accidents, truck accidents, motorcycle accidents, bicycle accidents, and pedestrian accidents.  Call us today–we are ready to help.

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