IRENE B. WHITEFIELD, BREVARD COUNTY SCHOOL BOARD AND HARTFORD ACCIDENT & INDEMNITY COMPANY, APPELLANTS,
v.
ERNESTINA L. KAINER, AS ADMINISTRATRIX OF THE ESTATE OF MARK JOSEPH KAINER, DECEASED, APPELLEE
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In this wrongful death case, the Florida District Court of Appeal reversed the trial court's refusal to grant a directed verdict, holding that a child born nine months after the father's death was not a "survivor" under the Florida Wrongful Death Act because the putative father had never recognized responsibility for the child's support.
The child is not a survivor under the Florida Wrongful Death Act because the statute explicitly requires that an illegitimate child of the father must show that the father recognized responsibility for the child's support. Here, there was no such evidence, so a directed verdict was appropriate.
[1] An illegitimate child cannot recover damages under the Florida Wrongful Death Act unless the father has recognized a responsibility for the child's support.
[2] A directed verdict should be granted in a wrongful death action when the plaintiff fails to meet the statutory definition of a "survivor."
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“"Survivors" means the decedent's spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child's support.”
Statutory definition of survivors under the Florida Wrongful Death Act that defines the requirement for illegitimate children of fathers
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Join FLexlaw to unlock all legal intelligenceAn 18-year-old man was killed on a motorcycle. Nine months later, his girlfriend gave birth to a child on whose behalf a wrongful death action was bro…
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LETTS, Judge.
This appeal results from a wrongful death action in which the trial court refused to grant a motion for a directed verdict. The motion set forth that the illegitimate child was not a survivor as defined by the Florida Wrongful Death Act. We agree and reverse.
The facts are that the 18 year old alleged father was killed on a motorcycle. Nine months later his girlfriend gave birth to a child on whose behalf this wrongful death action was instituted. The child claims to be a “survivor” under Section 768.18(1), Florida Statutes (1977) which reads:
(1) “Survivors” means the decedent’s spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child’s support. (emphasis supplied)
We are of the opinion that a directed verdict should have been granted in this case. At the time of his death there was no evidence that the putative father even knew that his girlfriend was pregnant and certainly there was no evidence whatever that he had recognized any responsibility for the child’s support. Therefore this child does not qualify under the unequivocal language of the statute.
The child urges upon us the cases of Wilcox v. Jones, 346 So. 2d 1037 (Fla. 4th DCA 1977) and In Re Estate of Burris, 361 So. 2d 152 (Fla.1978). Both of them are distinguishable because in both Wilcox and Burris the question of responsibility for support was not in dispute.
Although not necessary to this result, we also note that the trial court did not require the child to prove paternity. It instead accepted an ex parte order entered by the probate court declaring the child to be the deceased’s heir. We are of the opinion that this too was error and that the child should have had the burden of proving the deceased was his father. Accordingly the cause is reversed with directions to enter a judgment in accordance herewith.
REVERSED AND REMANDED.
DOWNEY, C. J., and MOORE, J., concur.
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Ellis v. Humana OF Fla., Inc., 569 So. 2d 827 (Fla. 5th DCA 1990)…ng in Rahn v. AMP, Inc., 447 So. 2d 929 (Fla. 3rd DCA 1984) (an action [*829] for wrongful death brought by a posthumous child must be brought within two years from the death of the decedent not from the birth of the child) and Whitefield v. Kainer, 369 So. 2d 684 (Fla. 4th DCA 1979) (a posthumous illegitimate child is not a “survivor” under the wrongful death act unless the father has recognized responsibility for the child’s support). We therefore hold that a posthumous child is a “survivor” of its father…
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Young v. ST. Vincent's Med. Ctr., Inc., 653 So. 2d 499 (Fla. 1st DCA 1995)…1978 & Supp.1994). .Illinois, South Dakota, and Tennessee have enacted statutes which allow a cause of action for wrongful death of a fetus, a viable fetus, and an unborn child, respectively. . F.S. 768.18. . F.S. 768.21. . Whitefield v. Kainer, 369 So. 2d 684 (Fla. 4th DCA 1979). . Grant v. Sedco Corp., 364 So. 2d 774 (Fla. 2d DCA 1978). . Smyer v. Gaines, 332 So. 2d 655 (Fla. 1st DCA 1976).…
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Larusso v. Garner, 888 So. 2d 712 (Fla. 4th DCA 2004)…reasoning in Rahn v. AMP, Inc., 447 So. 2d 929 (Fla. 3d DCA 1984) (an action for wrongful death brought by a posthumous child must be brought within two years from the death of the decedent not from the birth of the child) and Whitefield v. Kainer, 369 So. 2d 684 (Fla. 4th DCA 1979) (a posthumous illegitimate child is not a “survivor” under the wrongful death act unless the father has recognized responsibility for the child’s support). Id. at 828-29. Similarly, section 768.0415 is remedial in nature, provi…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re the Est. of Daymon C. Burris, 361 So. 2d 152 (Fla. 1978)
- Wilcox v. Jones, 346 So. 2d 1037 (Fla. 4th DCA 1977)