ELLENE B. RESMONDO, PLAINTIFF,
v.
INTERNATIONAL BUILDERS OF FLORIDA, INC., A CORPORATION, ET AL., DEFENDANTS
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A wife sought to maintain a cause of action for loss of consortium following her husband's settlement of a negligence suit by consent judgment that made no finding of fault. The court held that the wife's derivative right of action survives the husband's settlement, but she must independently prove the defendant's negligence and the husband's freedom from contributory negligence at trial.
A wife may maintain a cause of action for loss of consortium against the same defendant even after her husband's settlement, but she must independently prove at trial both the defendant's negligence and the husband's freedom from contributory negligence.
[1] A wife may maintain a cause of action for loss of consortium when her husband's prior suit for injuries arising from the same incident was settled by consent judgment wit…
[2] A wife's right of action for loss of consortium is derivative and requires proof that the tortfeasor was negligent and the husband was free from contributory negligence.
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“her right of action is a derivative right and she may recover only if her husband has a cause of action against the same defendant. This means that the tortfeasor was negligent and the husband was free from contributory negligence.”
Establishes the essential requirements for a wife's derivative cause of action for loss of consortium under Gates v. Foley.
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Join FLexlaw to unlock all legal intelligenceA husband was injured in an accident on August 18, 1967, allegedly due to the defendant's negligence. The husband filed suit and subsequently settled …
The full statement of facts, procedural history, and disposition for this case are member content.
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Pursuant to Florida Appellate Rule 4.6, 32 F.S.A., the Circuit Court of the First Judicial Circuit for Escambia County has certified the following question to this Court, to wit:
“Where a husband is injured as a result of alleged negligence as a result of an accident which occurred on or about August 18, 1967, the husband subsequently files suit which such suit is subsequently settled in December, 1969 by stipulation and entry of consent judgment without a finding of fault and cancellation of such judgment as attached hereto, may the wife of the defendant at the time of the accident and settlement maintain a cause of action for loss of care, affection and consortium following settlement of such prior suit?”
The trial court in its order of certification, after citing Gates v. Foley,1 stated: “. . . this Court being of the opinion that such case is not clear precedent to the issues herein and that there is no other controlling precedent upon which to determine the issues herein . . .” We agree with the trial court and therefore entertain the question as certified.
Prior to the Supreme Court’s decision in Gates, this State clearly followed the common law doctrine that a wife did not possess a cause of action for loss of consortium.2 Just as clearly, however, did Gates abrogate the prior decisions of the Supreme Court and establish a right of action on the part of a wife for loss of consortium. The following statement in Gates creates the lack of controlling precedent as to the instant cause:
“. . . We further hold that her right of action is a derivative right and she may recover only if her husband has a cause of action against the same defendant. This means that the tort-feasor was negligent and the husband was free from contributory negligence.”
Here, the statement of facts reflect that a consent judgment was entered in favor of the husband against the same defendant. The said judgment did not find that the defendant tort-feasor was negligent and the husband was free from contributory negligence. Thus, the ultimate question is: Did the instant judgment abate the wife’s cause of action? We conclude that it did not. The wife’s claim is actionable against the same defendant; however, under the stated facts, upon trial, she must not only prove the damages sustained by *74her for loss of consortium but must also prove the negligence of the alleged tort-feasor and the lack of contributory negligence on the part of the husband.
The question certified is answered in the affirmative.
SPECTOR, C. J., and CARROLL, DONALD K., and RAWLS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Orange Cnty. v. Piper, 523 So. 2d 196 (Fla. 5th DCA 1988)…the spouse who has lost the consortium. Busby v. Winn & Lovett Miami, Inc., 80 So. 2d 675 (Fla.1955); see also Ryter v. Brennan, 291 So. 2d 55 (Fla. 1st DCA), cert. denied, 297 So. 2d 836 (Fla.1974); Resmondo v. International Builders of Fla., Inc., 265 So. 2d 72 (Fla. 1st DCA 1972) (both cases holding that husband’s release did not abate wife’s cause of action for loss of consortium, which was a property right in her own name); but see Gates v. Foley, 247 So. 2d 40 (Fla.1971) (termination of husband’s cause…
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Metro. Dade Cnty. v. Reyes, 688 So. 2d 311 (Fla. 1996)…the spouse who has lost the consortium. Busby v. Winn & Lovett Miami, Inc., 80 So. 2d 675 (Fla.1955); see also Ryter v. Brennan, 291 So. 2d 55 (Fla. 1st DCA), cert, denied, 297 So. 2d 836 (Fla.1974); Resmondo v. International Builders of Fla., Inc., 265 So. 2d 72 (Fla. 1st DCA 1972) (both cases holding that husband’s release did not abate wife’s cause of action for loss of consortium, which was a property right in her own name); but see Gates v. Foley, 247 So. 2d 40 (Fla.1971) (termination of husband’s cause…
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Taylor v. Orlando Clinic, 555 So. 2d 876 (Fla. 5th DCA 1989)…ounty v. Piper, 523 So. 2d 196 (Fla. 5th DCA 1988), rev. denied, 531 So. 2d 1354 (Fla.1988). See also, Ryter v. Brennan, 291 So. 2d 55 (Fla. 1st DCA 1974), cert. denied, 297 So. 2d 836 (Fla.1974); Resmondo v. International Builders of Florida, Inc., 265 So. 2d 72 (Fla. 1st DCA 1972). It was error to dismiss the wife’s cause of action for loss of consortium. The wrongful death action filed by the personal representative is an independent cause of action based on sections 768.-16-768.27, Florida Statutes. Nis…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gates v. Foley, 247 So. 2d 40 (Fla. 1971)
- Ripley v. Ewell, 61 So.2d 420 (Fla. 1952)