ON PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE FOURTH DISTRICT COURT OF APPEAL BRIEF OF PETITIONER, MARK SAMAREL, ON JURISDICTION

Transcription

1 A MARK SAMAREL, vs. Petitioner, BRIAN GARNER, ETC., ET AL. Respondents. / IN THE SUPREME COURT OF THE STATE OF FLORIDA *CASE NO. SC3-1234, L.T. CONSOLIDATED CASE NOS. 4D01-912, 4D , 4D ON PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE FOURTH DISTRICT COURT OF APPEAL BRIEF OF PETITIONER, MARK SAMAREL, ON JURISDICTION SHELLEY H. LEINICKE, ESQ. WICKER, SMITH, O HARA, McCOY, GRAHAM & FORD, P.A. Counsel for Petitioner, Mark Samarel 515 East Las Olas Boulevard Suntrust Center, Suite 1400 P.O. Box Ft. Lauderdale, FL Phone: (954) Fax: (954) *Motion to consolidate with Cases #SC and SC was served February 24, 2005.

2 TABLE OF CONTENTS PAGE TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 ISSUE... 2 WHETHER THE INSTANT CASE CONFLICTS WITH STATUTORY AND CASE LAW ESTABLISHING THAT A CLAIM FOR LOSS OF PARENTAL CONSORTIUM EXISTS ONLY FOR CHILDREN WHO WERE BORN AT THE TIME OF THE PARENT S INJURY ARGUMENT SUMMARY... 2 ARGUMENT... 3 THE INSTANT CASE CONFLICTS WITH STATUTORY AND CASE LAW ESTABLISHING THAT A CLAIM FOR LOSS OF PARENTAL CONSORTIUM EXISTS ONLY FOR CHILDREN WHO WERE BORN AT THE TIME OF THE PARENT S INJURY CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF COMPLIANCE i

3 TABLE OF CITATIONS CASES PAGE Ady v. American Honda Finance Corp., 675 So.2d 577, 581 (Fla. 1996)... 3 Day v. Nationwide Mut. Ins. Co., 328 So.2d 560 (Fla. 2 nd DCA 1976)...5,6 Dept. of Revenue v. Johnston, 442 So.2d 930 (Fla. 1983)... 7 Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla. 1981)...4, 7 Fullerton v. Hospital Corp. of America, 660 So.2d 389 (Fla. 5 th DCA 1995)... 5 Gibson v. Avis Rent-a-Car System, Inc., 386 So.2d 520, 521 (Fla. 1980)...4,7 Mystan Marine, Inc. v. Harrington, 339 So.2d 200 (Fla. 1976)... 7 Tanner v. Hartog, 696 So.2d 705 (Fla. 1997)...4,5 Wheeler Co. v. Pullins, 11 So. 303 (Fla. 1942)... 6 Wilson v. Southern Bell Telephone & Telegraph Co., 327 So.2d 220 (Fla. 1976)... 7 Zorzos v. Rosen, 467 So.2d 305 (Fla. 1985)... 3 ii

4 TABLE OF CITATIONS (Continued) Other Authority Florida Statute Section (1992)...1,3,6 Florida Statute Section (1992) A Fla. Jur. 2d Statutes 114, iii

5 STATEMENT OF THE CASE AND FACTS 1 Garner was three months pregnant when she was involved in an intersectional auto accident. Despite her injuries, she carried the fetus to term. The resulting lawsuit alleged, inter alia, that after Braden was born he was entitled to pursue a claim for loss of parental consortium based on his mother s injuries. The defense argued that an after-born child cannot have a claim for loss of consortium for parental injuries because the child had no pre-existing relationship with the parent by which such a loss could be measured. The defense analogized to claims for loss of marital consortium, where the parties must be legally married prior to the accident for any claim to arise. The defense further argued that an unborn, non-viable fetus is not, and cannot be, an unmarried dependent for purposes of entitlement to parental consortium pursuant to Florida Statute Section (1992). Over strenuous objection to the parental consortium claim, the jury awarded $3 million for this claim. 1 A Notice to Invoke Discretionary Jurisdiction was served on July 8, 2003, on behalf of Co-Appellants, Michael E. Larusso and Filipe S. Joiner. Should this Honorable Court grant review, a formal motion to consolidate these matters will be filed. 1

6 ISSUE WHETHER THE INSTANT CASE CONFLICTS WITH STATUTORY AND CASE LAW ESTABLISHING THAT A CLAIM FOR LOSS OF PARENTAL CONSORTIUM EXISTS ONLY FOR CHILDREN WHO WERE BORN AT THE TIME OF THE PARENT S INJURY ARGUMENT SUMMARY A child had no claim for loss of parental consortium at common law. Because such claim is permitted only through a statute in derogation of the common law, it must be strictly construed. Until the instant decision, no court has held that a fetus can, after birth, bring a claim for loss of parental consortium. Not only is such a claim outside the scope of the statutory provisions, it is contrary to well settled law that rights of parties are determined at the time of the tort therefore one who is unmarried (or unborn) at the time of an accident cannot marry into a lawsuit (or be delivered into a lawsuit ) and claim a loss of consortium. While at least one appellate decision holds that a child born alive may sue for damages for its own injuries that were incurred prenatally, this does not support the expansion of the narrowly constructed parental consortium statute. 2

7 ARGUMENT THE INSTANT CASE CONFLICTS WITH STATUTORY AND CASE LAW ESTABLISHING THAT A CLAIM FOR LOSS OF PARENTAL CONSORTIUM EXISTS ONLY FOR CHILDREN WHO WERE BORN AT THE TIME OF THE PARENT S INJURY Children had no common law claim for loss of parental consortium. Zorzos v. Rosen, 467 So.2d 305 (Fla. 1985). Such claim exists only within the confines of Florida statute: A person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society , Fla. Stat. (1992). As a matter of clear and obvious statutory construction 2 the term unmarried dependent can apply only to children who were born at the time of the accident. The district court created a conflict in the law when it violated the rules of statutory construction by disregarding this defining term 2 Statutes in derogation of common law must be strictly construed. A court will presume that such statute was not intended to alter common law other than by what is clearly and plainly specified in the statute. Moreover, any party seeking to receive the benefits of a statute in derogation of the common law must demonstrate strict compliance with the statute s provisions. Ady v. American Honda Finance Corp., 675 So.2d 577, 581 (Fla. 1996) (internal cites omitted). 3

8 within the statute in conflict with the plain meaning of the statute, the intent of the statue, the rules of statutory construction, and common sense. The district court attempts to support its position by comparison to the provisions of the Wrongful Death Act and the fact that a child born alive may recover damages under the Wrongful Death Act for a parent killed shortly before the child s birth. (opinion p. 6) Respectfully, there is no basis for this analogy because the Wrongful Death Act has different provisions than the statute in question. The Wrongful Death Act allows recovery for a minor child or a survivor, both of which are distinctly different than an unmarried dependent. By improperly citing a wrongful death case as purported support for the instant decision, the instant case creates a conflict. Gibson v. Avis Rent-a-Car System, Inc., 386 So.2d 520, 521 (Fla. 1980) ( this Court has certiorari jurisdiction based on conflict when a district court of appeal misapplies the law by relying on a decision which involves a situation materially at variance with the one under review ); Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla. 198l) (discussion of legal principles applied by the district court is sufficient for conflict review). The instant case conflicts with this Court s opinion in Tanner v. Hartog, 696 So.2d 705 (Fla. 1997) and the many cases cited therein which 4

9 hold that a fetus is not a person for purposes of a tort claim recovery. Moreover, the plaintiff s in Tanner were limited to recovery of their own pain and suffering as a result of their own personal injuries and had no consortium claim arising out of the loss of the parent/child relationship. Equal protection requirements are violated if a fetus can bring a consortium claim for pre-natal injuries sustained by a parent, but the parent cannot bring a similar consortium claim for injuries sustained by the fetus. The instant decision also directly conflicts with the Wrongful Death Act which holds that there is no cause of action for the stillbirth of a fetus thereby establishing that a fetus cannot be the subject of any tort claim. The statutory construction followed by the district court in the instant case conflicts with the well settled law that applies to claims for loss of marital consortium. There is no doubt that in a claim for loss of marital consortium, the parties must be legally married prior to the accident for such claim to exist. See, e.g.: Fullerton v. Hospital Corp. of America, 660 So.2d 389 (Fla. 5 th DCA 1995). The instant case also misapplies Day v. Nationwide Mut. Ins. Co., 328 So.2d 560 (Fla. 2 nd DCA 1976). In Day, a physically injured fetus who was born alive was allowed to pursue a claim for the prenatal injuries inflicted by the tortfeasor. The decision was based on a public policy to alleviate a 5

10 burden to society because a child who is born alive but inflicted with a physical or mental injury or deformity is a potential public charge. Where the injury or deformity is caused by the fault of another, fairness dictates that the financial needs of such child should be borne by the tortfeasor rather than the taxpayer. Id. at 562. A similar public policy supported this Court s decision in Wheeler Co. v. Pullins, 11 So. 303 (Fla. 1942). There is no public policy to be served in permitting recovery of non-economic, parental consortium damages based on an event occurring while the fetus was in utero. Not only did the district court misinterpret section and the relevant case law, its decision impermissibly expanded the scope of parental consortium damages beyond the period of minority. The court reasoned that despite the fact that common law limits filial consortium damages to the time of a child s minority and prohibits any claim for parental consortium, Garner s unique claim for statutory parental consortium (though creative at best and even though the statute must be construed because it is in derogation of the common law) should have no time limit, and should extend throughout the claimant s entire lifetime. Conflict certiorari is available where there is a direct conflict between or among decisions. Review is limited to those situations because of the 6

11 concern for uniformity in decisions as precedent rather than the adjudication of the rights of particular litigants. Mystan Marine, Inc. v. Harrington, 339 So.2d 200 (Fla. 1976). Because the instant case clearly conflicts with the settled law of this state (as well as a plainly worded and controlling statute), certiorari review on the grounds of conflict is available. Wilson v. Southern Bell Telephone & Telegraph Co., 327 So.2d 220 (Fla. 1976); Dept. of Revenue v. Johnston, 442 So.2d 930 (Fla. 1983); Gibson, supra; Ford Motor Co, supra. CONCLUSION For the reasons set forth herein, it is respectfully submitted that the instant decision expressly and directly conflicts with multiple decisions of this state as well as the controlling statute. This conflict can be resolved only if this Court accepts jurisdiction. It is respectfully requested that this Honorable Court exercise its discretion to review the instant case. 7

12 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true copy of the foregoing was mailed this 25th day of February 2004, to all parties on the attached service list. WICKER, SMITH, O'HARA, MCCOY, GRAHAM & FORD, P.A. Attorney for Petitioner, Mark Samarel 515 East Las Olas Boulevard Suntrust Center, Suite 1400 P.O. Box Ft. Lauderdale, FL Phone: (954) Fax: (954) By: Shelley H. Leinicke Florida Bar No

13 CERTIFICATE OF COMPLIANCE PURSUANT TO FLA. R. APP. PRO (a)(2) Counsel for the Petitioner, Mark Samarel, certifies the following: Pursuant to Fla. R. App. P (a)(2), the instant brief of Petitioner is printed using a proportionally spaced 14 point Times New Roman typeface. Dated: Shelley H. Leinicke Florida Bar. No

14 Service List Hinda Klein, Esq. Conroy, Simberg & Gannon, P.A Hollywood Blvd., Second Floor Hollywood, FL Counsel for Michael E. Larusso and Felipe S. Jonior Doreen E. Lasch, Esquire Law Offices of Roland Gomez 8100 Oak Lane, Suite 400 Miami Lakes, Florida and David B. Pakula, Esq. David B. Pakula, P.A N. Federal Hwy., Suite 202 Ft. Lauderdale, FL Counsel for Southern Group Indemnity, Inc. Edna L. Caruso, Esq. Caruso & Burlington, P.A. Suite 3A/Barristers Bldg Forum Place West Palm Beach, FL and Gregg A. Schlesinger, Esquire and Todd R. McPharlin Sheldon J. Schlesinger, P.A Southeast Third Avenue Fort Lauderdale, FL Counsel for Brian Garner and Braden Daniel Garner Parkway Insurance Agency, Inc. 125 West Sunrise Blvd. Ft. Lauderdale, FL David M. Beckerman, P.A North Federal Highway Suite 320 Boca Raton, FL