OWEN BILBREY, SR., GLADYS BILBREY, OWEN BILBREY, JR., PHYLLIS BILBREY, JAMES E. THOMPSON, JR., AND PAULA THOMPSON, D/B/A OWEN BILBREY FRUIT COMPANY, AND JAMES E. THOMPSON, JR., INDIVIDUALLY, PETITIONERS-APPELLANTS,
v.
EDNA WEED, RESPONDENT-APPELLEE
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The Florida Supreme Court reversed a District Court of Appeal decision that had applied comparative negligence to a wrongful death action. The Court held that under Moragne v. State Marine Lines, Inc., defendants cannot selectively apply maritime negligence rules while rejecting maritime unseaworthiness liability in wrongful death cases.
Defendants may not selectively apply maritime comparative negligence rules while rejecting maritime unseaworthiness liability. The application of the maritime comparative negligence rule in wrongful death cases is impossible to reconcile with rejection of the maritime unseaworthiness rule, as required by Moragne v. State Marine Lines, Inc.
“Rejection of the maritime rule of liability for unseaworthiness in an action for wrongful death, upon the reasoning detailed in the Moragne opinion, is impossible to reconcile with application of the maritime rule of comparative negligence in the present case.”
Establishes the core holding that maritime rules cannot be selectively applied in wrongful death actions
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Join FLexlaw to unlock all legal intelligenceA wrongful death action was brought under Florida law against defendants for the death of an individual. The trial court rendered judgment for the def…
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Petition for writ of certiorari has been granted in this cause to review a decision of the District Court of Appeal, Second District,1 which reversed a judgment for defendant, the petitioner Bilbrey, in an action for wrongful death under F.S. Sec. 768.01, 768.02, F.S.A. A companion appeal presenting the same substantive issues in this Court has been consolidated for disposition with this proceeding.
The appellate court held that defendants were not entitled to assert contributory negligence as a bar to recovery, because the Florida act “preserves all rights which the decedent would have had if his injuries had not proved fatal” and required application of the comparative negligence rule which would have been available to decedent in an admiralty action. Certio-rari was granted on the ground of conflict with opinions stating that the Florida act creates an entirely new cause of action, in an entirely new right, for the recovery of damages suffered by the beneficiaries, not the decedent.2
*481We believe the recent decision and opinion of this Court in Moragne et al. v. State Marine Lines, Inc.,3 require that the appellate decision in the present case be quashed.4 Rejection of the maritime rule of liability for unseaworthiness in an action for wrongful death, upon the reasoning detailed in the Moragne opinion, is impossible to reconcile with application of the maritime rule of comparative negligence in the present case.
The decision of the appellate court in this case is accordingly quashed and the cause remanded with directions that the trial court be affirmed.
CALDWELL, C. J., and ROBERTS, DREW and THORNAL, JJ., concur.
MASON, Circuit Judge, concurs specially with opinion.
(concurring specially) :
After we granted certiorari herein this Court decided the case of Moragne, etc. v. State Marine, Inc., et al., 211 So.2d 161, opinion filed May 29, 1968, and I am of the opinion that the principles set forth therein are controlling and decisive of this cause. I, therefore, concur in the majority opinion herein for the sole reason that I believe that we are bound by that decision. Although I believe that Moragne was wrongly decided I consider the law therein announced to be binding upon me in the disposition of this case. Uniformity of decision m jurisprudence and jurisdiction, and the basic concept of equal justice under law, require the result reached in the majority opinion herein.
MASON, Circuit Judge
(concurring specially) :
After we granted certiorari herein this Court decided the case of Moragne, etc. v. State Marine, Inc., et al., 211 So. 2d 161, opinion filed May 29, 1968, and I am of the opinion that the principles set forth therein are controlling and decisive of this cause. I, therefore, concur in the majority opinion herein for the sole reason that I believe that we are bound by that decision. Although I believe that Moragne was wrongly decided I consider the law therein announced to be binding upon me in the disposition of this case. Uniformity of decision m jurisprudence and jurisdiction, and the basic concept of equal justice under law, require the result reached in the majority opinion herein.
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Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109 (Fla. 2002)…an entirely new cause of action, in an entirely new right, for the recovery of damages suffered by them, not the decedent, as a consequence of the wrongful invasion of their legal right by the tortfeasor. Id. at 221; accord, e.g., Bilbrey v. Weed, 215 So. 2d 479 (Fla.1968); Stokes v. Liberty Mut. Ins. Co., 213 So. 2d 695 (Fla.1968); Moragne v. State Marine Lines, Inc., 211 So. 2d 161 (Fla.1968); Shearn v. Orlando Funeral Home, Inc., 88 So. 2d 591 (Fla.1956); Brailsford v. Campbell, 89 So. 2d 241 (Fla.1956);…
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Booth S.S. Co., Ltd. v. Calzada, 382 So. 2d 425 (Fla. 3d DCA 1980)…isions between small pleasure boats and commercial vehicles. It is obligatory that federal maritime law be applied in both federal and state courts. Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Bilbrey v. Weed, 215 So. 2d 479 (Fla. 1968). Under maritime law, the doctrine of comparative negligence applies. United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975). In the present case, there is evidence which indicates: (1) failure on the…
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Grigsby v. Coastal Marine Serv. OF Tex., Inc., 412 F.2d 1011 (5th Cir. 1969)…th v. A/S Nabella, D.Md., 1959, 176 F.Supp. 668, 1959 A.M.C. 2196; Vassallo v. Nederl-Amerik Stoomv Maats Holland, Tex., 1961, 162 Tex. 52, 344 S.W. 2d 421. See also Weed v. Bilbrey, Fla.Ct.App., 1967, 201 So. 2d 771, 774 n. 2, reversed, Fla., 1968, 215 So. 2d 479. . Florida is a surprising exception, since its survival statute speaks in terms of “libels in rem”, a maritime, not local, concept. See Moragne v. State Marine Lines, Inc., Fla., 1968, 211 So. 2d 161. Article 2315 does not contain an in rem provis…
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
- Fla. E. Coast Ry. Co. v. McRoberts, 111 Fla. 278 (Fla. 1933)
- Shiver v. Sessions, 80 So. 2d 905 (Fla. 1955)
- Petsonella Moragne v. State Marine Lines, Inc., 211 So. 2d 161 (Fla. 1968)
- Parker v. City OF Jacksonville, 82 So. 2d 131 (Fla. 1955)
- CBS Constr. Co. OF KEY W. v. Towers, 199 So. 2d 469 (Fla. 1967)
- Weed v. Bilbrey, 201 So. 2d 771 (Fla. 2d DCA 1967)