A. J. DAVIS ET AL., APPELLANTS,
v.
EDITH M. ASBELL, APPELLEE
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This case addresses whether a prior judgment in a negligence action against a husband bars his wife's derivative claim for loss of consortium. The court affirmed that estoppel by judgment applies to consortium claims because the wife's cause of action is derivative and subordinate to the husband's primary action.
The court held that a prior judgment determining liability in the primary action is binding upon a derivative consortium claim because the wife's cause of action for loss of consortium is subordinate to the husband's primary negligence action. Estoppel by judgment applies even though the parties are not identical, because the defendants had a full opportunity to litigate all essential issues of their liability in the prior action.
[1] A spouse's cause of action for loss of consortium is derivative and may only be recovered if the other spouse has a cause of action against the same defendant.
[2] A judicial determination of liability in a primary action is binding on a subordinate action for loss of consortium.
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Join FLexlaw to unlock all legal intelligence“Where the husband's cause of action has been terminated by adverse judgment on the merits, this should bar the wife's cause of action for consortium.”
Establishes the foundational principle that the wife's consortium claim is barred by an adverse judgment against the husband's primary action.
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Join FLexlaw to unlock all legal intelligenceMrs. Asbell brought an action against appellants seeking damages for loss of consortium resulting from injuries to her husband. A prior judgment had b…
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RAWLS, Acting Chief Judge.
Appellee, Edith M. Asbell, brought this action against appellants seeking damages for loss of consortium. Upon consideration of Mrs. Asbell’s motion for partial summary judgment as to liability, the trial court granted same upon the theory of estoppel by judgment.1 Appellants contend that the doctrine of estoppel by judgment was misapplied by the trial court because the essential element of identity of parties is missing.2
Gates v. Foley3 controls. There, after holding that deprivation to the wife of the husband’s companionship, etc., constitutes a real injury to the marital relationship and one which is compensable, Mr. Justice Adkins, speaking for the Supreme Court, stated:
“Where the husband’s cause of action has been terminated by adverse judgment on the merits, this should bar the wife’s cause of action for consortium.
“The rule that we now recognize is that the wife of a husband injured as a proximate result of the negligence of another shall have a right of action against that same person for her loss of consortium. 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 tortfeasor was negligent and the husband was free from contributory negligence.”
Clearly, the court held in Gates that if a spouse’s cause of action has been terminated by an adverse judgment on the merits, the derivative cause of action vested in the other spouse is barred. Thus, had the prior judgment been for appellants and against Mr. Asbell, Mrs. Asbell would be estopped by that judgment. Appellants, who had every opportunity to litigate and did litigate against Mr. Asbell every essential issue of their liability, cannot invoke the mutuality rule, that they may not be estopped by the prior judgment if their present adversary, Mrs. Asbell, would not be so estopped. As a result, the prior judgment forecloses in Mrs. Asbell’s favor all issues it determined.
We do not hold that a spouse’s cause of action for loss of consortium is so dependent upon the other spouse’s primary cause of action that the action for loss of consortium may be abated unilaterally by the spouse possessed of the primary action. That question has been settled by our opinions in Ryter v. Brennan4 and Resmondo v. International Builders of Florida, Inc. We do hold that the derivative cause of action for loss of consortium is subordinate to the primary action, and being so, that a judicial determination in the primary action as to the question of liability is binding upon the subordinate action for loss of consortium.
AFFIRMED.
SMITH, J., and OVERTON, Associate Judge, concur. . A judgment in favor of Mrs. Asbell’s husband finding him free of contributory negligence had previously been rendered against the identical parties sued by Mrs. Asbell.
. Of interest is a motion to dismiss filed in the trial court wherein appellants alleged, inter alia: “2. That the claim of Edith M. Asbell for punitive damages is barred by estoppel by judgment or res judicata.”
. Gates v. Foley, 247 So. 2d 40 (Fla.1971).
. Ryter v. Brennan, 291 So. 2d 55 (Fla.App. 1st, 1974).
. Resmondo v. International Builders of Florida, Inc., 265 So. 2d 72 (Fla.App.1st, 1972).
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Albritton v. State Farm Mut. Auto. Ins. Co. & Cheryl Lee Dannels, 382 So. 2d 1267 (Fla. 2d DCA 1980)…solely on the issue of damages as they pertain to her action for loss of consortium and services. AFFIRMED IN PART, REVERSED IN PART, and REMANDED. GRIMES, C. J., and SCHEB, J., concur. . Gates v. Foley, 247 So. 2d 40 (Fla.1971); Davis v. Asbell, 328 So. 2d 204 (Fla. 1st DCA 1976). . The Florida Supreme Court defined “consortium” in Gates v. Foley as “the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation. Cons…
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Habelow v. Travelers Ins. Co., 389 So. 2d 218 (Fla. 5th DCA 1980)…EE Benjamin’s loss of consortium claim for Lillian is “derivative,” and therefore necessarily based on there being a sufficient tort alleged for her in her own right. Faulkner v. All State Insurance Co., 367 So. 2d 214 (Fla. 1979); Davis v. Asbell, 328 So. 2d 204 (Fla. 1st DCA 1976). Since Count Two does not state a cause of action, neither does Count Three. COUNT FOUR Lillian’s loss of consortium claim for Benjamin is also derivative and dependent upon Count One stating a cause of action for Benjamin agai…
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Matthias J. Propst v. John A. Neily, D.O., 467 So. 2d 398 (Fla. 4th DCA 1985)…ccessful marriage. (Citation omitted.) Id. at 43. The court further held that the right is a derivative one “and she may recover only if her husband has a cause of action against the same defendant.” Id. at 45. Propst, relying on Davis v. Asbell, 328 So. 2d 204 (Fla. 1st DCA 1976), takes the position that since the cause of action is derivative, if the injured spouse prevails on the issue of liability against a tortfeasor the other spouse prevails as a matter of law on the claim for loss of consortium. The…
Previewing 3 of 6 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)
- Wheeler v. Simmons, 291 So. 2d 55 (Fla. 1st DCA 1974)
- Ryter v. Brennan, 291 So. 2d 55 (Fla. 1st DCA 1974)
- Atkins v. State, 265 So. 2d 72 (Fla. 3d DCA 1972)
- Ellene B. Resmondo v. Int'l Builders OF Fla., Inc., 265 So. 2d 72 (Fla. 1st DCA 1972)