Widow’s damages determined by timing of asbestos exposure

3 Mar 2017 by under Legal

Florida dca map1 100x100 Widows damages determined by timing of asbestos exposureFlorida’s Fourth District Court of Appeals broke away from precedents set by other states last month, ruling a widow could not receive damages for the loss of her husband’s companionship after he died from .

According to the Daily Business Review, the court ruled 2-1 that construction worker John Kelly’s widow, Janis, cannot recover damages under Florida’s Wrongful Death Act for the loss of her husband’s companionship because his asbestos exposure occurred a few years before their 1976 wedding. The two had been married for nearly 40 years when he died in 2015 from mesothelioma, a deadly cancer linked to the inhalation or ingestion of asbestos.

The ruling breaks from previous rulings in Georgia, Louisiana, Ohio and New York, according to the dissenting opinion. “To my knowledge, no other appellate court in the history of American jurisprudence has come to the conclusion reached by the majority,” Judge Carole Taylor wrote in the dissent.

Lawyers for manufacturers Georgia-Pacific LLC and Union Carbide Corp. hinged their successful argument on how the Wrongful Death Act relates to common law. The majority found the Wrongful Death Act “did not explicitly do away with” the common-law rule, which says a marriage must predate an injury that leads to a spouse’s death in order for the widow to recover damages for loss of consortium, according to the Daily Business Review.

“I’ve never heard anybody make this argument before,” Kelly’s attorney, Juan Bauta of the Ferraro Law Firm in , told the news source. The majority also relied on a 1995 decision that prevented a husband from recovering loss of consortium damages after his wife developed thyroid cancer from radiation exposure that predated their wedding in their decision.

The dissenting opinion maintained the Wrongful Death Act does repeal common-law rule. “The Legislature, by including these damages without basing their recoverability on the surviving spouse’s relationship to the decedent at the time of injury, clearly intended that such damages be recoverable in a wrongful death action,” Taylor wrote in the dissent.

Kelly’s attorneys plan to ask the Florida Supreme Court to review the case.

 

 

 

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