Opinion
No. X-459.
June 3, 1975.
Appeal from the Circuit Court for Volusia County, J. Robert Durden, J.
Sylvan A. Wells, of Hoffman, Hendry, Parker Smith, Daytona Beach, for appellants.
Charles J. Luke, II, Daytona Beach, for appellee.
By this interlocutory appeal, appellants (who are defendants in the trial court) seek reversal of an order of the learned trial judge denying a defense motion to strike certain paragraphs of an amended complaint filed by the plaintiff in the trial court, appellee here.
The amended complaint alleges that on August 21, 1971 an automobile owned by appellant Fuller and insured by appellant Interstate Fire Insurance Company was negligently operated by appellant Bogard so as to cause it to collide with an automobile then being owned and operated by appellee Hahn in which appellee's wife, Alma C. Hahn, was also a passenger. It is further alleged that the plaintiff received personal injuries requiring medical attention and that his automobile was damaged. Numbered paragraph 4 of the amended complaint alleges that the Plaintiff's wife, Alma C. Hahn, was killed in the accident and numbered paragraph 7 alleges "That as a further result of such collision, the plaintiff has lost the consort, his wife, and suffered severe pain and depression as well as sadness and heartache by the loss of his loving wife and helpmate and was forced to expend sums for funeral services, burial, and other costs in connection with her death."
Plaintiff's original complaint was filed on February 12, 1974 and the above mentioned amended complaint on June 18, 1974. The defendants filed a timely motion to strike numbered paragraphs 4 and 7 of the amended complaint on the ground that those paragraphs pertain to the alleged wrongful death of the wife of the plaintiff and that a cause of action in wrongful death and damages pertaining thereto are statutory and are barred by the statute of limitations. The learned trial judge entered an order denying that motion to strike, thus this interlocutory appeal.
The underlying issue, which is dispositive of this case, is whether a surviving spouse may, in a negligence action as distinguished from a wrongful death action, recover damages for a loss of consortium, mental pain and suffering and burial expenses resulting from the death of a spouse killed as a result of the incident giving rise to the action.
F.S. 768.01-768.04, Florida Statutes 1971, constituted the Florida Wrongful Death Law at the time of the accident giving rise to the case sub judice. That law was materially changed by Chapter 72-35, Laws of Florida 1972, which was carried forward in Florida Statutes 1973, in F.S. 768.16-768.27, and there designated as the "Florida Wrongful Death Act". F.S. 768.27 specifically provides that said Florida Wrongful Death Act "shall take effect on July 1, 1972, and shall not apply to deaths occurring before that date." It is readily apparent therefore that F.S. 768.01-768.04, Florida Statutes 1971, was the applicable "Wrongful Death Law" at the time of the accident giving rise to this case and the injuries and damages resulting therefrom.
F.S. 95.11(6) Florida Statutes 1971, specifically provides that "An action arising upon account of an act causing a wrongful death" shall be commenced within two years after the cause of action accrued. Therefore, if the damages sought by appellee to be recovered under the allegations of numbered paragraph 7 of the amended complaint are cognizable only in a wrongful death action, as distinguished from a common negligence action, as appellants contend, then recovery therefor has been barred by the above mentioned statute of limitations. On the other hand, if such damages may be properly recovered in an ordinary negligence action then the statute of limitations applicable to negligence actions is controlling and such damages are not barred.
The issue here involved was discussed by this Court, albeit somewhat obliquely, in Bowie v. Reynolds, Fla.App. 1st 1964, 161 So.2d 882. In that case, although the specific point involved related to splitting of causes of action, this Court was required to determine, as a necessary incident to determination of the narrow issue before it, whether a surviving husband could claim damages sustained by reason of the loss of services, society, affection, and consortium of his deceased wife, as well as for funeral expenses necessarily incurred as a result of her death. The appellant in that case contended that the above mentioned elements of damages were properly recoverable in either a common-law action for negligence or an action under the wrongful death statutes. In resolving that point this Court said:
"Appellant has not favored us with any citations of authority, and our research reveals none, which supports the position he takes on the point here considered. Appellant concedes that the uniform weight of authority in the United States is to the effect that at common law a husband could not claim damages for loss of consortium resulting from the death of his wife caused by the wrongful act of another. In Florida, it is only by virtue of the wrongful death statute that such claim may now be asserted, and damages for this loss recovered. The statute creates a right of action where none existed at common law. It follows that we must reject appellant's contention that damages for loss of consortium could have been lawfully claimed by appellee in this second common law action filed by him." (161 So.2d at page 883; Emphasis added)
The above quoted language from the Bowie case is dispositive of the issue sub judice. Such appears to have also been the essential holding of the Supreme Court of Florida in Shearn v. Orlando Funeral Home, Inc., Sup.Ct.Fla. 1956, 88 So.2d 591, cited in the Bowie opinion.
Having held that damages by reason of loss of services, society, affection, consortium and funeral expenses incurred as a result of the death of a spouse are recoverable only in an action for wrongful death, it follows that the learned trial judge erred in refusing to strike same from appellee's amended complaint which was bottomed on an action for common-law negligence.
Reversed and remanded for further proceedings consistent herewith.
MILLS, J., concurs.
JOHNSON, J., concurs specially.
I agree with the ultimate result reached in Judge Boyer's opinion — that a surviving spouse's action seeking to recover damages for a loss of consortium, affection, services, society and funeral expenses resulting from the wrongful death of a spouse must be brought within the two year period prescribed in § 95.11(6), F.S. 1971. However, I do not feel that the cases of Shearn v. Orlando Funeral Home, 88 So.2d 591 (Fla. 1956) nor Bowie v. Reynolds, 161 So.2d 882 (Fla.App. 1st, 1964) are dispositive of this issue. Those cases pertain simply to the splitting of causes of action, and not to the application of conflicting statutes of limitations. I base my conclusion on the rule of law that where two or more distinct, separate and independent causes of action arise out of one state of facts or one breach of duty, each is governed by the statute of limitations appropriate to it. Stated differently, where several causes of actions are properly joined in one action, each of the causes is governed by the statute applicable thereto. 53 C.J.S. Limitations of Actions §§ 33 and 107. Where there is some doubt as to which of two or more statutes of limitation applies to a particular proceeding, the courts will often resolve such doubt in favor of the application of the statute containing the longest period of limitation. However, this rule will not prevent a court from applying the shorter period where satisfied that it ought to apply, as in the instant situation involving a cause of action for wrongful death, where the legislative mandate of a two year limitation period is clear.
In short, I concur with the majority that the trial court erred in refusing to strike the wrongful death allegations from appellee's amended complaint for the reasons set forth above.