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Parental Consortium

Family Law

On the terrifying prologue of one of the 1970s’ more controversial films, When a Stranger Calls, a babysitter is troubled by a caller who repeatedly asks, “Have you checked the children?” The ordinary troubles of having a crank caller soon become real terror once the calls are traced to an upstairs telephone. Unfortunately, the rest of the film disregards the promise of its opening in exchange for the wasteful complexity of a police drama.

Much of the same can be said of F.S. §768.0415.

F.S. §768.0415 is a little-known provision by which a child’s right to parental consortium is established. Under §768.0415, “[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 [is] liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society.”1

Many practitioners are unaware of this statute and its history. The legislature enacted §768.0415 after the Florida Supreme Court declined to create the right to parental consortium in Zorzos v. Rosen, 467 So. 2d 305 (Fla. 1985). In Zorzos, the Supreme Court was asked to decide whether Florida should recognize a cause of action for parental consortium when a parent is injured by the negligence of a third party.2 The court responded somewhat ambivalently. It acknowledged that such a cause had been rejected previously by Florida’s lower courts.3 It then acknowledged that it could recognize the cause of action even though the legislature had not done so previously. In the end, the Florida Supreme Court decided that “it is wiser to leave it to the legislative branch[.]”4

In 1988, the Florida Legislature noted the Supreme Court’s ambivalence in Zorzos and enacted F.S. §768.0415.5 However, very few cases brought on behalf of an injured parent currently include the derivative claims of the parent’s children.6 Even fewer cases involving §768.0415 have been reported by Florida’s courts. In fact, a search of the reporters produces only six cases even citing the statute.7

The promise of a statutory right to parental consortium apparently has been lost in the wasteful complexity of the statute’s terms. As noted in the jury instructions on parental consortium, F.S. §768.0415 does not define “significant permanent injury,” “dependent” or “permanent total disability.”8 The statute further refers only to “negligence” without distinguishing between common law negligence and “negligence cases” as defined in F.S. §768.81(4)(a).9 Regardless of the statute’s ambiguity elsewhere, the term “permanent total disability” is the most determinative and most troubling among those used in §768.0415. “Permanent total disability” certainly subsumes the statute’s notion of “significant permanent injury,” yet the term’s definition remains elusive.

“Permanent total disability,” when considered literally, suggests death. This cannot be what the legislature intended, especially in light of Florida’s Wrongful Death Act.10 Nevertheless, no ruling directs practitioners elsewhere.11 A practitioner might only understand the legislative intent for §768.0415 and the statute’s usefulness by reviewing workers’ compensation law.

“Permanent total disability” is defined in workers’ compensation law as “catastrophic injury.”12 & #x201c;Catastrophic injury” is a permanent impairment constituted by:

(a) spinal cord injury involving severe paralysis of an arm, a leg, or the trunk; (b) amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage; (c) severe brain or closed-head injury. . . ; (d) second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands; (e) total or industrial blindness; or (f) any other injury. . . of a nature and severity that would qualify an employee to receive disability income benefits under Title II or supplemental security income benefits under Title XVI of the federal Social Security Act[,]. . . without regard to any time limitations provided under that act.13

Accordingly, a statutory claim for parental consortium would be an important element of most actions brought for parents’ injuries. While the requisite “permanent total disability” likely includes the devastating conditions classified as “catastrophic injuries” under workers’ compensation law, lesser injuries meriting benefits under the Social Security Act would also be included.14

Titles II and XVI of the Social Security Act define “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]”15 The Secretary of Health and Human Services has developed a five-part test for determining whether an individual is “disabled” under the Social Security Act.16 First, the individual cannot be engaged in “substantial gainful activity.”17 Second, the individual must have a medically severe impairment or combination of impairments.18 Impairment “results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”19 Third, the impairment should be equivalent to one of a number of disabling conditions previously acknowledged by the Secretary.20 If the impairment is not equivalent to one of those acknowledged by the Secretary, two other steps follow. Fourth, the impairment must prevent the performance of the individual’s prior job.21 Fifth, the individual must not be able to perform other work in the community in view of the individual’s age, education, and experience. 22

The disabling conditions acknowledged by the Secretary, as well as the decisions construing Titles II and XVI, are much less severe than the “catastrophic injuries” which otherwise define “permanent total disability” under Florida law. For example,the Secretary has acknowledged the disabling conditions of active rheumatoid arthritis,23 radiculopathy due to a herniated disk or spinal stenosis,24 “soft tissue injuries of an upper or lower extremity” requiring multiple surgeries,25 vertigo,26 central nervous system dysfunction,27 and depression.28 Additionally, courts have construed disability under Titles II and XVI to include severe bilateral carpal tunnel syndrome,29 chronic fatigue syndrome,30 severe headaches,31 and chronic incontinence.32

For these reasons, a practitioner should run, not walk, to F.S. §768.0415. The statutory right to parental consortium arises whenever another’s negligence causes “permanent total disability” to a parent. Permanent total disability likely includes both catastrophic injuries, as defined under Florida’s workers’ compensation law, and the lesser conditions deemed disabling under the Social Security Act. Certainly, most tort claims feature these types of injuries. q

1 Fla. Stat. §768.0415 (1999).
2 Zorzos, 467 So. 2d at 306.
3 Id. at 306 (citing Clark v. Suncoast Hospital, Inc., 338 So. 2d 1117 (Fla. 2d D.C.A. 1976); Fayden v. Guerrero, 420 So. 2d 656 (Fla. 3d D.C.A. 1982); Ramirez v. Comm. Union Ins. Co., 369 So. 2d 360 (Fla. 3d D.C.A. 1979)).
4 Zorzos, 467 So. 2d at 307.
5 1988 Fla. Laws ch. 173.
6 Taylor v. GMAC, 622 So. 2d 1169 (Fla. 5th D.C.A. 1993) (children’s claim of parental consortium derivative of parent’s claim of negligence).
7 E.g., Gomez v. Avis Rent-a-Car System, Inc., 596 So. 2d 510, 511 (Fla. 3d D.C.A. 1992) (§768.0415 provides children with claim against both active tortfeasor and owner of dangerous instrumentality).
8 Standard Jury Instructions—Civil Cases (No. 98-4), 746 So. 2d 440 app. (Fla. 1999).
9 Id.
10 Fla. Stat. §768.16 et seq. (1999).
11 In U.S. v. Dempsey, 635 So. 2d 961, 965 (Fla. 1994), the Florida Supreme Court reminded itself of its ambivalence in Zorzos and decided to recognize a parent’s ability to claim a loss of filial consortium due to a child’s injury. The Supreme Court limited the right to filial consortium in the same manner in which parental consortium is limited under §768.0415. Id. The court held “that a parent of a negligently injured child has a right to recover for the permanent loss of filial consortium suffered as a result of a significant injury resulting in the child’s permanent total disability.” Id. Regrettably, neither “significant injury” nor “permanent total disability” was defined for the benefit of practitioners.
12 Fla. Stat. §440.15(1)(b) (1999) (Only a catastrophic injury as defined in §440.02 shall. . . constitute permanent total disability.).
13 Fla. Stat. §440.02(37) (1999).
14 Qualification for social security benefits is solely an illustrative concept and not a requirement under Fla. Stat. §440.02(37)(f). Florida courts are not bound by a federal administrative court’s denial of social security benefits when determining whether an individual is permanently and totally disabled under workers’ compensation law. See Fla. Distillers v. Rudd, 2000 Fla. App. LEXIS 1975 (Fla. 1st D.C.A. 2000).
15 Compare 42 U.S.C. §416(i)(2000) with 42 U.S.C. §423(d)(1)(2000) and 42 U.S.C. §1382c(a)(3)(A)(2000); see also Sullivan v. Zebley, 493 U.S. 521, 525 (1990) (Title XVI definition of disability taken from Title II).
16 See 20 C.F.R. §404.1520 (2000); 20 C.F.R. §416.920 (2000).
17 Fla. Stat. §§404.1520(a), 416.920(a).
18 Id.; see also Bowen v. Yuckert, 482 U.S. 137, 145(1987) (second step of Secretary’s test supported by Social Security Act and its legislative history).
19 42 U.S.C. §423(d)(3) (2000); 42 U.S.C. §1382c(a)(3)(D)(2000).
20 20 C.F.R. §404.1520(d) (2000); 20 C.F.R. §416.920(d) (2000).
21 Fla. Stat. §§404.1520(e), 416.920(e).
22 Fla. Stat. §§404.1520(f), 416.920(f).
23 20 C.F.R. §404 app. 1 (1999).
24 Id.; see also Penny v. Sullivan, 2 F.3d 953, 959 (9th Cir. 1993); Cruz v. Shalala, 815 F. Supp. 839, 843 (E.D. Pa. 1993).
25 20 C.F.R. §404 app. 1 (1999).
26 Id.
27 Id.
28 Id.
29 Harris Corp. v. Gary, 695 So. 2d 800, 801-02 (Fla. 1st D.C.A. 1997).
30 Hallgring v. Callahan, 975 F. Supp. 84, 92 (D. Mass. 1997).
31 Miyoshi v. Bowen, 696 F. Supp. 346, 351 (N.D. Ill. 1988).
32 Giardine v. Heckler, 639 F. Supp. 5, 7 (M.D. Penn. 1985).

Richard C. Alvarez practices in the areas of personal injury, products liability and commercial litigation at Tampa’s Yerrid, Knopik & Krieger, P.A. He received his B.S. in accounting from the University of Florida and his J.D. from the University of Notre Dame.

This column is submitted on behalf of the Trial Lawyers Section, Robert F. Spohrer, chair, and D. Keith Wickenden, editor.

Family Law