The Fifth District Court of Appeal, in Randall v. Walt Disney World, 5D12-4353, recently held that a surviving spouse’s loss-of-consortium claim can survive the death of the deceased spouse.  In so holding, the Fifth District relied on its prior precedent that it explained, although disapproved of on other grounds by a recent Florida Supreme Court decision, was still good law.  See Taylor v. Orlando Clinic, 555 So. 2d 876, 878 (Fla. 5th DCA 1989), disapproved on other grounds, Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013).

The Fifth District also certified conflict with ACandS, Inc. v. Redd, 703 So. 2d 492 (Fla. 3d DCA 1997), which held that a cause of action for a loss of consortium does not survive the death of the injured spouse.  In ACandS, the Third District concluded that loss of consortium, when joined with the primary cause of action, was derivative and could not exist in the absence of the primary cause of action.  In its decision, the Third District was persuaded by the fact that the Legislature made recovery for a surviving spouse a part of the Wrongful Death Act, “implicitly conclud[ing] that because the surviving spouse can recover from the date of the injury, the loss of consortium from the date of injury merges with the continuing injury suffered after death, and the surviving spouse therefore recovers.”