SHERRY PLANT AND TODD PLANT, APPELLANTS,
v.
LAWRENCE DECKER, D.O., STEPHEN COLEMAN, D.O., ET AL., APPELLEES
DANAHY, Judge.
The appellants seek review of an order dismissing their amended complaint without leave to amend. We reverse.
Leave to amend should not be denied unless the privilege has been abused or the complaint is clearly not amendable. Osborne v. Delta Maintenance & Welding, Inc., 365 So. 2d 425 (Fla. 2d DCA 1978). Neither of those circumstances is present in this case. Although parents have no right of action for the wrongful death of a stillborn fetus,1 they may pursue any personal claims they may have. Hernandez v. Garwood, 390 So. 2d 357 (Fla.1980). Much of the appellants’ amended complaint sounds in wrongful death and the trial judge was correct in dismissing it for this reason; however, there are allegations in the complaint that the mother suffered bodily injury with resulting damage. Under the circumstances, we believe the appellants should be given the opportunity to submit a second amended complaint omitting any reference to the elements of a cause of action for wrongful death and stating, if they can, causes of action for injury suffered by the mother. Reversed and remanded.
GRIMES, A.C.J., and FRANK, J., concur. . Stern v. Miller, 348 So. 2d 303 (Fla.1977).
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Alpha Sheffield and Wesley Sheffield v. Albert J. Davis, M.D. & Albert J. Davis, M.D. & Assocs., P.A., 562 So. 2d 384 (Fla. 2d DCA 1990)…t, however, that lower courts generally should grant amendments liberally and that leave to amend should not be denied unless the privilege has been abused or the complaint is clearly not subject to being amended. Fla.R.Civ.P. 1.190; Plant v. Decks, 486 So. 2d 37 (Fla. 2d DCA 1986). . Section 768.57, Florida Statutes (1987) was revised and transferred to section 766.106, Florida Statutes (Supp.1988). Former section 768. [*386] 57(4) (now section 766.106(4)) was maintained intact in the revision. [3] 3. Se…
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Williams v. Sebring Hous. & Dev., 723 So. 2d 359 (Fla. 2d DCA 1998)…966); Matthews v. Matthews, 122 So. 2d 571 (Fla. 2d DCA 1960). The Williamses should be given the opportunity to submit an amended complaint, if they are able to do so, that properly sets forth the elements of a cause of action. See Plant v. Decker, 486 So. 2d 37 (Fla. 2d DCA 1986). [*360] Affirmed in part; reversed in part; and remanded for further proceedings. THREADGILL, A.C.J., and QUINCE, J., Concur.…
Authorities Cited
- Stern v. Miller, 348 So. 2d 303 (Fla. 1977)
- Osborne v. DELTA Maint. & Welding, Inc., 365 So. 2d 425 (Fla. 2d DCA 1978)
- Hernandez v. Garwood, 390 So. 2d 357 (Fla. 1980)