IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT JANUARY TERM 2004
MICHAEL E. LARUSSO, FELIPE S. David B. Pakula, P.A., Weston, for appellant
JONIOR, MARK SAMAREL, and Southern Group Indemnity, Inc.
SOUTHERN GROUP INDEMNITY, INC.,
a Florida corporation, Edna L. Caruso of Caruso, Burlington, Bohn &
Compiani, P.A., West Palm Beach, and Gregg A.
Appellants, Schlesinger and Todd R. McPharlin of Sheldon J.
Schlesinger, P.A., Fort Lauderdale, for appellees
v. Brian Garner and Braden Daniel Garner.
BRIAN GARNER, individually, and as natural GUNTHER, J.
parent and guardian of BRADEN DANIEL
GARNER, a minor, ANA MARTINEZ We withdraw our previous opinion and substitute
GARNER, HARDRIVES OF DELRAY, the following opinion in its place.
INC., METRIC ENGINEERING
COMPANY, FLORIDA DEPARTMENT This opinion addresses only certain issues and
OF TRANSPORTATION, STATEWIDE arguments raised in these consolidated appeals.1
ADJUSTERS, INC., a Florida corporation, and Southern Group Indemnity, Inc. (“SGI”) appeals
the final judgment entered in favor of Brian
PARKWAY INSURANCE AGENCY, INC.,
a Florida corporation, Garner and his son, Braden Garner. Felipe Jonior
(“Jonior”), Mark Samarel (“Samarel”) and
Appellees. Michael Larusso (“Larusso”) seek review of the
awards to Braden for his injuries and loss of
consortium and to Brian for loss of consortium.
CASE NOS. 4D01-912, 4D01-1082
The appeals in this case stem from a tragic
accident that occurred on October 27, 1994. Ana
Martinez Garner, Brian’s wife of approximately
two weeks, who was three-months pregnant with
Opinion filed February 11, 2004
Braden, was driving a Toyota Tercel that she
alone owned. She was stopped at the traffic light
Consolidated appeals from the Circuit Court for
at the intersection of Glades Road and State Road
the Fifteenth Judicial Circuit, Palm Beach County;
441 in Boca Raton, an intersection that was under
Edward H. Fine, Judge; L.T. Case Nos. CL 95-
construction. Jonior, driving a vehicle owned by
5464 AI & CL 96-8765 AI.
Larusso, turned from 441 onto Glades Road and
collided with the vehicle Samarel was driving
Hinda Klein of Conroy, Simberg, Ganon,
through the intersection. Samarel’s vehicle spun
Krevans & Abel, P.A., Hollywood, for appellants
out of control as a result of the collision and
Michael E. Larusso and Felipe S. Jonior.
crashed into Ana’s Tercel on the driver’s side.
As a result of this second collision, Ana sustained
Shelley H. Leinicke of Wicker, Smith, O’Hara,
severe brain damage and bodily injury. Despite
McCoy, Graham & Ford, P.A., Fort Lauderdale,
for appellant Mark Samarel.
The separate appeals of Larusso and Jonior,
Doreen E. Lasch of the Law Offices of Roland
Samarel, and Southern Group Indemnity were
Gomez, Miami Lakes, and David B. Pakula of
these serious injuries and a resulting coma, Ana At the conclusion of the trial, SGI moved for
carried Braden to term. directed verdict arguing, inter alia, that even if
Brian’s SGI policy were in effect at the time of
Ana, through a temporary guardian necessitated Ana’s accident, the uninsured motorist coverage
by her injuries, filed an automobile negligence in Brian’s policy did not cover the accident. The
personal injury lawsuit against Larusso, Jonior, trial court denied the motion and submitted the
Samarel, the Florida Department of case to the jury.
Transportation, and the construction companies at
work on the intersection (Metric and Hardrives). The jury found, inter alia, that Brian’s policy
Brian, individually and as parent and guardian of was not cancelled effective on or before the
his son Braden, sued the same defendants as well October 27 accident date, that Brian provided
as SGI, the automobile insurance carrier that notice of the accident within thirty days of
insured his 4Runner. The lawsuits were October 12 to the insurance agency or insurance
consolidated for trial. During the litigation, Ana company, and that the SGI policy provided
and Brian were divorced. Because Ana settled uninsured motorist benefits for the October 27
her lawsuit, her claims are not the subject of this accident.
Regarding liability, the jury found Jonior to be
Under review in this case are the claims of thirty percent at fault for the accident, Samarel to
Brian and Braden as well as the question of be sixty percent at fault, and divided the remaining
whether Brian owned an automobile insurance ten percent of fault between the construction
policy that provided uninsured motorist benefits at companies working on the intersection. Braden
the time of Ana’s accident. On behalf of Braden, was awarded one million dollars for future lost
Brian filed personal injury claims for Braden’s earning capacity and future medical treatment for
organic brain injury sustained both in utero during his injuries sustained in utero. He was also
the accident and as a result of subsequent awarded three million dollars for the loss of his
treatment, as well as a claim for loss of mother’s consortium and two million dollars for
consortium regarding Braden’s relationship with permanent injuries sustained in the accident.
his mother. Brian filed his own claims for loss of Brian was awarded $300,000 for the loss of Ana’s
consortium as to his wife and son due to their consortium and $500,000 for the loss of Braden’s
permanent injuries. As to SGI, Brian and Braden consortium. Larusso, Jonior, and Samarel appeal
sought uninsured motorist benefits from the insurer these verdicts on grounds that an as yet unborn
of Brian’s 4Runner to assist in paying damages fetus cannot claim loss of consortium and that
resulting from the accident. Brian and Braden’s consortium damages should
have been limited to the duration of Braden’s
SGI moved for summary judgment, asserting minority.
that at the time of Ana’s accident, Brian no longer
had automobile insurance coverage under the The following is a list of the facts most pertinent
policy on his 4Runner because: (1) Brian had to resolving the issues on appeal. In July 1994,
cancelled his policy effective prior to Ana’s Brian purchased a six-month SGI automobile
accident on October 27, 1994 and (2) as a matter insurance policy for his 4Runner, effective on July
of law, Brian had no insurable interest after he 21. He sold this vehicle on October 12, 1994. On
sold his 4Runner on October 12, 1994. Summary October 27, 1994, his wife at the time, Ana, was
judgment was denied and the case proceeded to involved in an automobile accident with her Tercel
trial. which she alone owned and separately insured
with another insurance company. On November
10, 1994, Brian telephoned his insurance agent to ambiguous when the language is subject to
notify her of Ana’s accident and informed her that “more than one reasonable interpretation, one
he had sold the 4Runner. The agent believed that providing coverage and another limiting
Brian had coverage for Ana’s accident under the coverage.”
policy. Brian was instructed to obtain a copy of Id. at 845 (citations omitted). These rules of
the purchaser’s registration for the 4Runner and interpretation are consistent with an insurance
visit the agency to execute the necessary policy’s status as a contract of the parties. Cont’l
paperwork. On November 14, 1994, when Brian Cas. Co. v. City of Ocala, 127 So. 894, 895 (Fla.
went to the agency’s office with the purchaser’s 1930); see Planck v. Traders Diversified, Inc., 387
registration, his insurance agent drafted a letter So. 2d 440, 441 (Fla. 4th DCA 1980). When the
which Brian signed reflecting the sale of the language of an insurance policy “is clear and
4Runner and attempting to cancel the policy unambiguous, it must be construed to mean ‘just
retroactive to October 12. It is this November 14 what the language therein implies and nothing
letter that SGI contends retroactively cancelled more.’” Walker v. State Farm Fire & Cas. Co.,
Brian’s policy. It is undisputed that Brian did not 758 So. 2d 1161, 1162 (Fla. 4th DCA 2000).
request a retroactive cancellation. In a letter
dated November 22, 1994, the attorney for Brian Now, we address SGI’s argument that the trial
and Ana inquired about coverage for Ana’s court erred by failing to grant its motion for
accident under Brian’s policy. SGI’s adjustment summary judgment on two grounds. The first is
firm replied by letter on December 8, 1994 that the that Brian’s policy had been retroactively
policy was cancelled on October 12 and that cancelled. The second is that he had no insurable
payment of any claim arising from the October 27 interest at the time of Ana’s accident.
accident would be denied. Based on these facts,
we now turn to the various arguments made in To answer whether Brian’s policy was
support of SGI’s fundamental contention that on retroactively cancelled, it is necessary to review
the day of Ana’s accident, Brian did not own an the language of Brian’s SGI insurance policy. The
SGI policy that afforded uninsured motorist policy provides that after the policy is in effect for
benefits. two months:
The named insured shown in the Declarations
When insurance coverage is in question, the may cancel by:
applicable standard of review is de novo. Allstate (1) returning this policy to us; or
Ins. Co. v. Rush, 777 So. 2d 1027, 1029 (Fla. 4th (2) giving us advance written notice of the date
DCA 2000). cancellation is to take effect.
Brian purchased the policy in July and the relevant
Several rules for insurance policy interpretation events took place in October and November, so
were stated in Roberts v. Florida Lawyers Mutual this provision was in effect.
Insurance Co., 839 So. 2d 843 (Fla. 4th DCA
2003) : No evidence was presented that Brian returned
The scope and intent of insurance coverage is the policy to SGI, so cancellation was not
defined by the language and terms of the policy. accomplished by the first method set forth in the
In construing an insurance policy, the court policy. Regarding the second method of
should read the policy as a whole, giving every cancellation, the requirement that written notice be
provision its full meaning and operative effect. given in advance of the date the cancellation is to
Any ambiguities in an insurance policy are to be take effect means that Brian’s cancellation could
interpreted liberally and in favor of the insured have become effective no earlier than November
and strictly against the insurer. A policy is 14, the day Brian requested cancellation in writing.
To conclude otherwise would render meaningless insurance policy to recover uninsured motorist
the policy’s requirement of advance written notice benefits. In essence, SGI argues that coverage
of the cancellation date. Thus, contrary to SGI’s under Brian’s policy would exist only during the
assertion, Brian’s policy, by the clear and time Brian actually owned a vehic le, either the
unambiguous terms of the contract, could not have 4Runner or a vehicle acquired consistent with the
been retroactively cancelled effective October 12, terms of the policy. Thus, SGI concludes that
even if Brian had requested retroactive under the facts of this case, Brian had no insurable
cancellation, which he did not. Because Brian did interest on the day of Ana’s accident and
not cancel his policy by either method prior to therefore no enforceable insurance policy
Ana’s October 27 accident, we conclude that the affording uninsured motorist benefits.
trial court did not err in denying SGI’s motion for
summary judgment on the ground that Brian had SGI’s reasoning is based on the interpretation of
retroactively cancelled his SGI policy prior to section 627.727(1) in Johnson:
Ana’s accident. Uninsured motor vehicle coverage must be
provided in all motor vehicle liability insurance
SGI’s second ground in support of its motion for contracts issued in this state, unless the named
summary judgment also fails. SGI asserts that insured rejects the coverage in writing. Thus,
Brian no longer had an insurable interest once he the required UM benefits are an adjunct of the
sold his 4Runner on October 12, and therefore the other coverage provided in automobile policies,
policy ceased to provide coverage by operation of which is itself dependent on an insurable
law. Without regard for the language of the interest. Consequently, UM benefits are
insurance policy, SGI bases this argument on indirectly dependent on the existence of an
Johnson v. Aetna Life & Casualty Co., 472 So. 2d insurable interest.
859 (Fla. 3d DCA 1985), and the Florida Statutes Johnson, 472 So. 2d at 861 (citations omitted).
cited therein, sections 627.405 and 627.727(1).
On the other hand, Brian asserts that his SGI
Florida Statute section 627.405 as relied upon by policy provided for a thirty-day period of automatic
SGI provides: coverage following the sale of an insured
automobile. Relying on the policy language, Brian
(1) No contract of insurance of property or of claims that a “covered auto,” his insurable interest,
any interest in property or arising from property can include an auto that is acquired during the
shall be enforceable as to the insurance except policy period if the insured requests in writing
for the benefit of persons having an insurable within thirty days that the vehicle be insured.
interest in the things insured as at the time of the Brian maintains that he intended to purchase a
loss. new vehicle within the policy period, but because
of the circumstances of Ana’s accident, never had
(2) “Insurable interest” as used in this section the opportunity. It is unnecessary to address this
means any actual, lawful, and substantial argument by Brian, because we conclude there is
economic interest in the safety or preservation uninsured motorist coverage available on different
of the subject of the insurance free from loss, grounds, as more fully explained below.
destruction, or pecuniary damage or impairment.
In this case, Brian’s insurance coverage
Considering section 627.405, SGI reasons as continued despite the fact that Brian did not
follows. When Brian sold his 4Runner, he no purchase a vehicle, because the language of the
longer had any insurable interest. Without an policy prevented the cessation of coverage until
insurable interest, Brian could not enforce the cancellation of the policy. The language of the
insurance policy relevant to the issue of whether uninsured motorist coverage, remains in existence.
insurance coverage existed at the time of Ana’s
accident states: To repeat, the relevant dates in this uninsured
motorist coverage case are as follows. On
“Your Covered Auto” means: October 12, Brian sold his 4Runner, on October
27, Ana had the accident, and pursuant to the
1. Any vehicle shown in the Declarations. terms of the policy, Brian cancelled the policy
effective November 14. Thus, at any time during
2. Any of the following vehicles on the date you the policy period, that is, until November 14, Brian
become the owner: c ould have become the owner of a vehicle and
a. a private passenger auto; or, had coverage pursuant to the terms of the policy.
b. a pickup or van that: Because the language in Brian’s policy fails to
(1) has a gross vehicle weight of less than clearly convey that uninsured motorist coverage is
10,000 lbs; and, terminated during the period following the sale of
(2) is not used for the commercial delivery the insured vehicle and until such time (within the
or transportation of goods and materials. policy period) that a new vehicle is acquired, the
policy provision should be enforced against SGI as
This provision (2.) applies only if: the drafter of the insurance policy. See Flores v.
a. you acquire the vehicle during the policy Allstate Ins. Co., 819 So. 2d 740, 744 (Fla. 2002)
period; and, (citing Auto-Owners Ins. Co. v. Anderson, 756
b. you request, in writing, within 30 days of So. 2d 29, 34 (Fla. 2000)). Another problem with
the date you become the owner, we insure the argument that when Brian owned no car there
such vehicle; and, was no insurable interest, is that it ignores the fact
c. with respect to a pickup or van, no other that Brian would need coverage when driving a
insurance policy provides coverage for that vehicle owned by someone else.
d. we insure all cars you own. Therefore, we conclude that the policy in
question does not provide for the flipping on and
We have already concluded that Brian’s policy off of a coverage switch. This result is consistent
could not have been cancelled any earlier than w ith the Florida Supreme Court’s repeated
November 14. Because Ana’s accident occurred holdings that uninsured motorist coverage follows
prior to that date, it occurred during the policy the insured, not the auto. See Fla. Farm Bureau
period. Based on the “Your Covered Auto” Cas. Co. v. Hurtado, 587 So. 2d 1314, 1318 (Fla.
provisions of the policy, insurance coverage 1991); Coleman v. Fla. Ins. Guar. Ass’n, 517 So.
existed during this time despite the fact that Brian 2d 686 (Fla. 1988); Mullis v. State Farm Mut.
sold his 4Runner on October 12. This is because Auto. Ins. Co., 252 So. 2d 229, 233 (Fla. 1971),
the provision allows for a vehicle other than the superseded by statute on other grounds, Carbonell
vehicle listed in the policy to become the “covered v. Auto. Ins. Co. of Hartford, Conn., 562 So. 2d
auto” for purposes of insurance coverage, if that 437 (Fla. 3d DCA 1990) (“Whenever bodily injury
vehicle is purchased during the policy period and is inflicted upon [a] named insured or insured
SGI is notified of that purchase within thirty days. members of his family by the negligence of an
Simply because no “covered auto” exists under uninsured motorist, under whatever conditions,
the policy where the vehicle listed in the policy has locations, or circumstances, any of such insureds
been sold, and a new one has not yet been happen to be in at the time, they are covered by
purchased or declared to SGI, does not alter the uninsured motorist liability insurance.”); GEICO v.
fact that insurance coverage, including any Douglas, 627 So. 2d 102, 103 (Fla. 4th DCA 1993)
(citing the three Florida Supreme Court cases). choice accepting or rejecting uninsured motorist
Thus, we conclude that the trial court did not err in coverage, it cannot be said that he made a
denying SGI’s motion for summary judgment on knowing and informed decision regarding that
the ground that Brian had no insurable interest on coverage. See id. at 219. Because Brian did not
the day of Ana’s accident. make a knowing choice as to the upper portion of
the form, the jury could have concluded that he
We next address the question of whether the could not make a knowing choice of non-stacked
trial court erred by denying SGI’s motion for insurance coverage in the lower portion of the
directed verdict which was based on the form. This conclusion emanates from the strong
argument that even if Brian’s SGI policy were in public policy favoring the insured in uninsured
effect at the time of Ana’s accident, Brian’s motorist coverage cases and requiring that an
uninsured motorist coverage did not cover the informed selection of policy limitations be made.
accident. See Tres v. Royal Surplus Lines Ins. Co., 705 So.
2d 643, 645 (Fla. 3d DCA 1998). This outcome is
We first turn to the uninsured motorist coverage consistent with the special care that courts are to
election form. It is undisputed that in the upper give to uninsured motorist coverage disputes to
portion of the form, Brian selected boxes both protect the insured. See Flores, 819 So. 2d at 745.
accepting and rejecting uninsured motorist
coverage. In the lower portion of the form, Brian Additionally, whether Brian’s election of non-
selected a box for non-stacked uninsured motorist stacked uninsured motorist coverage in the lower
coverage. SGI contends that the selection of both portion of the form is knowing, is also a function of
boxes in the upper portion of the form did not the form itself. Section 627.727(9) does provide
create an ambiguity, but even if it did, there was that the signature of an insured raises the
no contention that there was any ambiguity in presumption that a knowing election was made;
selecting non-stacked coverage in the lower however, in order for that presumption to operate,
portion of the form. On the other hand, Brian the form must be approved by the Florida
asserts that the fact that two boxes were checked Department of Insurance. 2 See also Zupan v.
in the upper portion (in addition to other Nationwide Mut. Fire Ins. Co., 710 So. 2d 594,
alterations) created an ambiguity, and therefore 595 (Fla. 4th DCA 1998). It is an insurance
prevented Brian from making an informed and company’s burden to demonstrate that an election
knowing selection of non-stacked uninsured form complies with the statutory requirements in
motorist benefits in the lower portion of the form. order to benefit from the presumption. See Omar
v. Allstate Ins. Co., 632 So. 2d 214, 216 (Fla. 5th
Ambiguities in insurance policies are construed DCA 1994) (discussing insurer’s burden to
in favor of the insured. Roberts, 839 So. 2d at 845 demonstrate informed election to benefit from
(citation omitted). Multiple checks on an
uninsured motorist coverage election form are
considered ambiguous. Scatigno v. State Farm “In connection with the offer authorized by this
subsection, insurers shall inform the named insured,
Mut. Auto. Ins. Co., 425 So. 2d 217, 218 (Fla. 2d
applicant, or lessee, on a form approved by the
DCA 1983). Therefore, the jury could have
department, of the limitations imposed under this
concluded that the fact Brian selected both boxes subsection and that such coverage is an alternative to
in the upper portion of the election form created coverage without such limitations. If this form is
an ambiguity to be resolved in favor of Brian, signed by a named insured, applicant, or lessee, it shall
providing him with uninsured motorist coverage. be conclusively presumed that there was an informed,
Furthermore, because Brian failed to make a clear knowing acceptance of such limitations.” § 627.727(9),
presumption); Bifulco v. State Farm Mut. Auto. vehicle owned by such insureds for which
Ins. Co., 693 So. 2d 707, 708 (Fla. 4th DCA 1997) uninsured motorist coverage was not purchased.
(discussing insurer’s burden of proving that it filed
uninsured motorist coverage forms with the Based on the notice requirements of section
Department of Insurance). 627.727(9) previously discussed in this opinion, for
any limitation or exclusion to be placed on the
In the case at bar, the insurer, SGI, provided no uninsured motorist coverage available to an
documentary evidence that the election form insured, such as that permitted by subsection (d),
signed by Brian had been approved by the Department of Insurance approval and disclosure
Department of Insurance. As a result, SGI cannot to the insured is required. To conclude otherwise
benefit from the presumption of informed choice would be to allow insurance companies to provide
created by his signature. Thus, we also reject a limited form of uninsured motorist coverage
SGI’s argument that a presumption of informed which is contrary to our public policy preference
choice was created by Brian’s signature electing of unlimited uninsured motorist coverage. See
non-stacked uninsured motorist coverage. Young v. Progressive Southeastern Ins. Co., 753
So. 2d 80, 83 (Fla. 2000); Mullis, 252 So. 2d at
In sum, on the issue of whether the policy 233-234.
provided uninsured motorist coverage, we
conclude that it did. This is because Brian made In the case at bar, Ana is clearly an insured
neither a knowing and informed decision to reject under Brian’s SGI policy. SGI relies on policy
uninsured motorist coverage, nor a knowing and language and definitions to attempt to create an
informed decision to elect non-stacking uninsured exclusion described in subsection (d) that would
motorist coverage. Furthermore, SGI did not result in Ana being excluded from uninsured
demonstrate that Brian’s signature on the form motorist coverage. However, because SGI did not
raised a presumption of informed choice of non- (1) obtain approval of the language used in policy
stacked coverage where SGI did not provide provisions, (2) inform Brian of the exclusion on an
documentary evidence that the form was approved form, or (3) obtain a knowing
approved by the Department of Insurance. acceptance of the exclusion, SGI did not succeed
in excluding Ana from uninsured motorist
Now that we have determined that Brian was coverage. Because Ana is an insured and SGI did
entitled to uninsured motorist coverage under his not comply with the statutory requirements, Brian
SGI policy, we must determine whether that could not knowingly consent to limited uninsured
coverage extends to Ana’s accident. Brian points motorist coverage excluding Ana. 3
out that SGI failed to comply with section
627.727(9) when limiting coverage in a manner In sum, on the question of whether there is
recognized by section 627.727(9)(d). See
Douglas, 627 So. 2d at 103. Subsection (d)
provides: As we have already determined, SGI’s attempt to
Insurers may offer policies of uninsured motorist provide the limited form of non-stacked uninsured
coverage containing policy provisions, in motorist coverage to Brian through the use of the
election form failed because Brian did not knowingly
language approved by the office, establishing
consent to such a limitation and the form was not
that if the insured accepts this offer:
properly approved by the Department of Insurance.
(d) The uninsured motorist coverage provided by Likewise, no statement on that form or any approved
the policy does not apply to the named insured form explained to Brian that Ana would not have
or family members residing in her or his uninsured motorist coverage under the provisions of
household who are injured while occupying any the policy.
uninsured motorist coverage for Ana’s accident, is clear and unambiguous and conveys a clear and
w e conclude that she is an insured subject to definite meaning, there is no occasion for resorting
uninsured motorist coverage under Brian’s SGI to the rules of statutory interpretation and
policy so as to allow the recovery of loss of construction; the statute must be given its plain
consortium damages for her accident. Therefore, and obvious meaning.” McLaughlin v. State, 721
the trial court did not err by denying SGI’s motion So. 2d 1170, 1172 (Fla. 1998). “One of the most
for directed verdict on the issue of the existence fundamental tenets of statutory construction
of uninsured motorist coverage. requires that we give statutory language its plain
and ordinary meaning, unless words are defined by
We now address the consortium awards that the statute or by the clear intent of the legislature.
Larusso, Samarel, and Jonior claim are in error. If necessary, the plain and ordinary meaning of a
The three appellants raise two issues regarding word can be ascertained by reference to a
these awards: (1) whether Braden was entitled to dictionary.” Green v. State, 604 So. 2d 471, 473
recover loss of consortium damages in regard to (Fla. 1992).
his relationship with his mother, Ana and (2)
whether the duration and amount of Braden’s Webster’s New Collegiate Dictionary defines
parental consortium award and Brian’s filial the term dependent, when used as a noun, as “one
consortium award were properly calculated. that is dependent, especially a person who relies
on another for support.” Id. at 302 (1980 ed.).
We first address the issue of Braden’s Dependent as an adjective is defined as “relying
entitlement to damages for loss of parental on another for support.” Id. Webster’s does not
consortium. In Florida, children do not have a make the status of the individual a determining
common law loss of consortium claim for their factor; the core of the definition is “reliance on
parents. See Zorzos v. Rosen, 467 So. 2d 305, another for support.”
307 (Fla. 1985). However, Florida established a
child’s claim for loss of parental consortium By that definition, a fetus is very nearly the
through statute: physical embodiment of a dependent. For the time
A person who, through negligence, causes it is in the womb, especially during non-viability, it
significant permanent injury to the natural or is completely physically dependent on the mother’s
adoptive parent of an unmarried dependent body for its survival.
resulting in a permanent total disability shall be
liable to the dependent for damages, including The legislature did not limit “unmarried
damages for permanent loss of services, dependents” to persons already born at the time of
comfort, companionship, and society. injury, and it is not our job to write words into the
§ 768.0415, Fla. Stat. (1992). statute. We note, however, that a fetus does not
have this claim until after it is born alive, according
In this case, the question which we must resolve to Florida’s long-standing “born alive” rule. See
is whether an unborn, non-viable fetus can be an Shone v. Bellmore, 78 So. 605, 607 (Fla. 1918).
“unmarried dependent” for purposes of this
statute. Marital status is clearly beside the point, We also point out that this conclusion is not a
leaving the meaning of “dependent” for novel addition to Florida tort law. Florida allows a
consideration. child born alive to recover damages for its own
injuries occurring when it was a fetus regardless
In considering the applicable law, well of viability. See Day v. Nationwide Mut. Ins. Co.,
established principles of statutory analysis guide us 328 So. 2d 560, 562 (Fla. 2d DCA 1976). A child
in our decision. “When the language of the statute born alive may also receive compensation for a
parent’s injury or death under the Workers’ summary judgment, SGI’s motion for directed
Compensation statute. See C.F. Wheeler Co. v. verdict, and Braden’s parental consortium award.
Pullins, 11 So. 2d 303, 305 (Fla. 1942). A child We reverse and remand Brian’s filial consortium
born alive may also recover damages under the award for remittitur. We affirm all other issues
Wrongful Death Act for a parent killed shortly not addressed in this opinion.
before the child’s birth. See Ellis v. Humana of
Fla., Inc., 569 So. 2d 827, 829 (Fla. 5th DCA AFFIRMED IN PART, REVERSED IN
1990). Therefore, on the first issue raised by PART, AND REMANDED FOR
Larusso, Samarel, and Jonior, we conclude that REMITTITUR.
the trial court did not err in awarding Braden loss
of consortium damages due to the injuries to his WARNER, J., and HARNAGE, HENRY H.,
mother. Associate Judge, concur.
Moving on to the calculation issue, filial NOT FINAL UNTIL DISPOSITION OF ANY TIMELY
consortium damages are limited to the period of FILED MOTION FOR REHEARING.
the child’s minority by common law. See
Broward Co. Sch. Bd. v. Cruz, 761 So. 2d 388,
396 (Fla. 4th DCA 2000), aff’d, 800 So. 2d 213
(Fla. 2001), abrogated on other grounds by,
Grenitz v. Tomlian, 858 So. 2d 999 (Fla. 2003).
The plaintiffs concede this point. Therefore, we
reverse and remand Brian’s award for loss of filial
consortium for remittitur to Braden’s years of
Braden’s claim for loss of his mother’s
consortium, however, is not common law, making
Cruz inapplicable. Section 768.0415 speaks only
to who may bring the claim, not to the extent of
damages. The statute specifically includes
“damages for permanent loss of services, comfort,
companionship, and society.” (Emphasis added).
Because the statute does not limit damages, we
decline to limit damages to the duration of
minority.4 This would be a task for the legislature
rather than for this Court. Therefore, Braden’s
award should remain as set by the trial court.
In sum, we affirm the denial of SGI’s motion for
The comments to the Florida Standard Jury
Instructions in Civil Cases also note that “the duration
of future damages for which the child may recover is
unclear.” Standard Jury Instructions – Civil Case (Nos.
01-1 & 02-2), 825 So. 2d 277, 283 (Fla. 2002).