DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PHILIP MORRIS USA, INC., a foreign corporation,

R.J. REYNOLDS TOBACCO COMPANY, individually, and as successor 

by merger to BROWN & WILLIAMSON TOBACCO CORPORATION, 

individually and as successor by merger to

THE AMERICAN TOBACCO COMPANY, a foreign corporation,

LORILLARD TOBACCO COMPANY, a foreign corporation,

LIGGETT GROUP LLC (f/k/a Liggett Group, Inc., f/k/a

Liggett & Myers Tobacco Company), and VECTOR GROUP LTD., INC. 

(f/k/a Brooke Group, Ltd.), a foreign corporation,

Appellants,

v.

BRYAN RINTOUL, as Personal Representative of the

ESTATE OF EDWARD CAPRIO,

Appellee.

No. 4D20-1963

[May 11, 2022]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; David A. Haimes, Judge; L.T. Case No. CACE07-036719.

Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, 

DC and Scott A. Chesin of Shook, Hardy & Bacon LLP, New York, NY, for 

appellant Philip Morris USA Inc.

Michael A. Carvin of Jones Day, Washington, DC, Eric L. Lundt, and 

Robert C. Weill of GrayRobinson, Fort Lauderdale, Charles R.A. Morse of 

Jones Day, New York, NY, and Kenneth M. Grose of Jones Day, Columbus, 

OH, for appellant R.J. Reynolds Tobacco Company.

Daniel E. Nordby, Steven M. Ebner and Michael A. Muñoz of Shutts & 

Bowen LLP, Tallahassee, Scott P. Schlesinger, Jonathan R. Gdanski, 

Steven J. Hammer and Brittany Barron of Schlesinger Law Offices, P.A., 

Fort Lauderdale, and Bard D. Rockenbach of Burlington & Rockenbach, 

P.A., West Palm Beach, for appellee.

Mary L. Bonauto and Chris Erchull of GLBTQ Legal Advocates & 

Defenders, Boston, MA, Freddy Funes of Toth Funes PA, Miami, Andrew 
2

J. Fuller of Gelber Schachter & Greenberg, P.A., Miami, and Daniel B. 

Tilley, ACLU Foundation of Florida, Miami, for Amicus Curiae-GLBTQ 

Legal Advocates & Defenders and American Civil Liberties Union of 

Florida.

PER CURIAM.

In this Engle1 progeny wrongful death case, the defendants, Philip 

Morris (“PM”) and R.J. Reynolds (“RJR”), appeal a final judgment in favor 

of the plaintiff, Bryan Rintoul, as Personal Representative for the Estate of 

Edward Caprio, awarding substantial compensatory damages to Rintoul 

as surviving spouse and punitive damages against both appellants. Of the 

multiple issues raised, we address three. First, we reverse the punitive 

damage award based upon Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 

3d 114 (Fla. 2021). Second, we conclude that the admission of substantial 

evidence regarding JUUL Labs, Inc. (“JUUL”) and e-cigarettes in support 

of Rintoul’s punitive damage claim was harmful error, requiring a new trial 

on all issues. Third, we agree with RJR that Rintoul is not entitled to 

recover non-economic damages based upon Kelly v. Georgia-Pacific, LLC, 

211 So. 3d 340 (Fla. 4th DCA 2017),2 which relied on Tremblay v. Carter, 

390 So. 2d 816 (Fla. 2d DCA 1980), because Rintoul was not married to 

the decedent when the symptoms of a tobacco-related illness manifested. 

We reject the trial court’s creation of an exception to Kelly for a same-sex 

couple based upon Obergefell v. Hodges, 576 U.S. 644 (2015). We 

conclude that Obergefell does not compel us to make an exception to either

Kelly or Tremblay. Therefore, while we reverse all issues for a new trial, 

Rintoul may not claim compensatory damages as a “surviving spouse” 

based on those cases.

Facts

Decedent Edward Caprio, who was born in 1943, began smoking at age 

15. In 1996, he was diagnosed with COPD, a disease caused by smoking. 

Later, he was diagnosed with lung cancer and had surgery to remove 

portions of his right lung.

Caprio filed suit in 2007, alleging membership in the Engle class and 

asserting claims for strict liability, negligence, fraudulent concealment, 

1 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).

2 We note that in Ripple v. CBS Corp., 47 Fla. L. Weekly D750 (Fla. 4th DCA Mar. 

30, 2022), this court certified conflict between Kelly and Domino’s Pizza, LLC v. 

Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018).
3

and conspiracy. In 2015, while the case was pending, Florida legalized 

same-sex marriage. Shortly thereafter, Caprio married Bryan Rintoul, 

with whom he had been in a relationship since 1982. The case mis-tried 

in 2015. After his COPD worsened, Caprio died in 2018. Following

Caprio’s death, Rintoul moved to amend the complaint to substitute 

himself as plaintiff in his capacity as Caprio’s personal representative and 

to assert a wrongful death claim, seeking compensatory damages for 

himself as a surviving spouse.

RJR objected to the motion for leave to amend in part, opposing

Rintoul’s amendment to seek surviving spouse loss of consortium noneconomic damages as futile. It cited Kelly to argue that Rintoul married 

Caprio after his injuries occurred and therefore could not bring a wrongful 

death claim for non-economic damages because of Florida’s long-standing 

rule that a spouse cannot marry into a cause of action. In response, 

Rintoul argued that the application of section 768.20, Florida Statutes 

(2019)—the Wrongful Death Act—in the manner advocated by RJR would 

violate his due process and equal protection rights.3

The trial court ruled in Rintoul’s favor. It distinguished Kelly, finding 

that at the time of the diagnosis of COPD, i.e., the “injury,” Rintoul and 

Caprio could not be lawfully married in Florida because the state did not 

recognize same-sex marriages until 2015. Under the court’s reasoning, 

applying the “marriage before injury” rule to Rintoul “would operate to 

discriminate against Rintoul and deprive him of the benefits and 

protections associated with a legal marriage status solely based on the fact 

that he was in a same-sex relationship and was unable to legally marry at 

the time.” Thus, the trial court determined that the Wrongful Death Act 

would be unconstitutional as applied and granted Rintoul leave to amend 

to add the claim for non-economic damages. The result of this ruling was 

that at trial, Rintoul would have to prove and the jury would have to find 

that the couple would have married before 1996 had same-sex marriage 

been legal at the time.

Before trial, appellants moved to preclude evidence regarding JUUL, ecigarettes, and other JUUL products. They argued no evidence showed

that Caprio used JUUL products nor did JUUL have anything to do with 

Engle progeny cases. Appellants acknowledged that PM was a subsidiary 

of Altria Group, Inc. (“Altria”), and that Altria had made a $12.8 billion 

minority investment in JUUL, giving it a thirty-five percent minority 

3 RJR asserted in the lower court and here on appeal that Rintoul’s arguments 

should be rejected based on Florida Rule of Civil Procedure 1.071. We reject that 

argument without discussion.
4

interest in JUUL in December 2018. Yet PM did not control JUUL. RJR 

advised the court that it was not involved with JUUL. Both appellants

argued that evidence of JUUL was improper and irrelevant to the 

determination of both compensatory and punitive damages. Additionally, 

any probative value of the evidence regarding JUUL was outweighed by its 

prejudicial value. Rintoul countered that the purpose of the JUUL 

evidence was to show “[p]erpetuation of the adolescent addiction industry 

and entitlement -- thus reprehensibility and entitlement to punitive 

damages.”

Although PM put JUUL coupons in Marlboro packages, made their 

customer list available to JUUL for sending coupons, and shared shelf 

space at stores with JUUL products, PM’s counsel argued that the JUUL 

relationship was not material to the issue of punitive damages because a 

defendant can only be punished for its own conduct that causes harm to

a plaintiff, not a third party’s conduct. Rintoul’s own expert testified that 

JUUL products did not harm Caprio. Nevertheless, the trial court ruled 

the evidence admissible as to punitive damages entitlement.

At trial, a significant amount of testimony and documents involved 

JUUL, including press releases and documents from Altria. PM again

objected to that evidence’s introduction because Altria was not a party and 

was the parent company to PM. The trial court admitted the evidence, 

stating that the documents could be admitted because JUUL was part of 

a party opponent. Based upon these rulings, documents discussing 

concerns over the use of e-cigarettes among children were introduced. The 

trial court also allowed an expert to testify with respect to e-cigarettes and 

use by high school students. The expert also pointed out that JUUL was 

the leader in the e-cigarette market. Other testimony showed that former 

PM officers were now JUUL officers. Letters from the FDA to JUUL and to 

Altria were admitted regarding the FDA’s concern over children’s use of ecigarettes. Rintoul’s attack on JUUL continued during closing argument. 

In Phase I closing arguments, Rintoul’s counsel directly invoked JUUL to 

argue that the case is “about cigarettes. It’s about JUUL and JUUL 

devices. It’s about the perpetuation . . . of the adolescent . . . addiction 

industry, which is the same as it ever was.”

Ultimately, the case was submitted to the jury in Phase I where the jury

found that Caprio was addicted to cigarettes which were a legal cause of 

his COPD. The jury attributed forty-nine percent negligence to both PM 

and RJR, and two percent negligence to Caprio. The jury’s verdict awarded 

$200,000 in damages to the Estate and $9,000,000 to Rintoul for loss of 

consortium and pain and suffering. The jury also found by way of special 

interrogatory that Rintoul and Caprio would have been married before 
5

Caprio developed COPD had it been legal for them to do so. Finally, the 

jury found that punitive damages were warranted against both appellants.

In Phase II of the trial pertaining to the amount of any punitive damages

award, Rintoul offered more evidence regarding JUUL over appellants’

objection. Appellants also objected to references to JUUL in closing 

argument. Rintoul’s counsel requested $24 million as to each appellant. 

The jury assessed almost six times the amount which Rintoul requested—

$74,122,719.43—in punitive damages against each appellant. 

Interestingly, that number matched Caprio’s age at death, 74, and his date 

of birth, 12/27/1943.

The trial court entered final judgment on both the compensatory and 

punitive damages, including remitting the award of economic damages to 

$155,866.82 to comport with the evidence. Appellants subsequently 

moved for new trial and a reduction of the punitive damage award on 

various grounds, all of which were denied. This appeal followed.

Punitive Damages

In 1999, the Legislature amended section 768.73 to prohibit punitive 

damage awards against a defendant in a civil action where punitive 

damages had previously been awarded against the defendant in another

action that alleged “harm from the same act or single course of conduct 

for which the claimant seeks compensatory damages.” § 768.73(2)(a), Fla. 

Stat. (1999). The single course of conduct included “acts resulting in the 

same manufacturing defects, acts resulting in the same defects in design, 

or failure to warn of the same hazards, with respect to similar units of a 

product.” Id. The legislation permitted additional punitive damages in 

certain circumstances:

(b) In subsequent civil actions involving the same act or single 

course of conduct for which punitive damages have already 

been awarded, if the court determines by clear and convincing 

evidence that the amount of prior punitive damages awarded 

was insufficient to punish that defendant’s behavior, the court 

may permit a jury to consider an award of subsequent 

punitive damages. . . . Any subsequent punitive damage 

awards must be reduced by the amount of any earlier punitive 

damage awards rendered in state or federal court.

§ 768.73(2)(b), Fla. Stat. (1999). Although the law stated that the 

amendments “shall be applied to all causes of action arising after the 

effective date of this act,” this court in R.J. Reynolds Tobacco Co. v. 
6

Konzelman, 248 So. 3d 134, 135 (Fla. 4th DCA 2018), agreed with other 

appellate courts in holding “that the pre-1999 version of section 768.73, 

Florida Statutes, applies in an Engle progeny personal injury suit that is 

converted into a wrongful death action upon the smoker’s death.”

Acknowledging that this court had rejected the application of the 

amended statute in Engle cases, PM and RJR nevertheless filed notices in 

the trial court invoking the amended version of section 768.73(2) and 

alleging that each had paid millions of dollars in punitive damage awards 

already. They preserved their claim that the statute applied in their 

motions for directed verdict and motions for new trial, and they also 

preserved the issue by raising it in their briefs.

During the pendency of this appeal, the Florida Supreme Court in

Sheffield reversed Konzelman, holding “the relevant 1999 amendments to 

section 768.73 apply in Engle progeny wrongful death actions in which the 

decedent died after the effective date of the amendments.” 329 So. 3d at 

125. Because of Sheffield, we reverse and remand to the trial court to 

apply amended section 768.73 in determining any punitive damage award.

JUUL Evidence and Argument

At trial, the court allowed Rintoul to introduce evidence and argument 

regarding JUUL on the theory that it was probative on the issue of punitive 

damages as continued misconduct of appellants. Although PM did not 

own JUUL, and its parent company Altria owned only a minority interest, 

Rintoul alleged PM engaged in joint marketing efforts with JUUL by 

providing JUUL coupons in PM cigarette packages and sharing shelf space 

at stores. In denying the motion for new trial, which again challenged the 

admission of the evidence, the trial court explained that evidence of 

marketing JUUL products and other e-cigarettes as an alternative nicotine 

delivery device and of targeting minors was the type of conduct which 

harmed Caprio.

We disagree and hold that admitting the JUUL evidence was error for 

two reasons. First, admitting JUUL evidence against PM requires 

disregarding corporate entities, essentially a piercing of the corporate veil 

without evidence to support it. Second, the sole evidence showing a joint 

marketing effort between JUUL and PM was, at best, dissimilar to the acts 

upon which liability for Caprio’s death were predicated and thus punished

appellants for conduct which did not harm Caprio.

“The standard of review for admissibility of evidence is abuse of 

discretion.” Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001) 
7

(citing Melendez v. State, 700 So. 2d 791 (Fla. 4th DCA 1997)). “However, 

a trial court’s discretion is limited by the rules of evidence.” Nardone, 798 

So. 2d at 874 (citation omitted). The legal question of whether evidence is 

admissible under an exception to the hearsay rule is reviewed de novo. 

Philip Morris USA, Inc. v. Pollari, 228 So. 3d 115, 120 (Fla. 4th DCA 2017). 

Because the trial court’s decision to pierce the corporate veil involves a 

pure issue of law, we review it under a de novo standard. Flooring Depot 

FTL, Inc. v. Wurtzebach, 330 So. 3d 47, 49 (Fla. 4th DCA 2021).

To find the evidence regarding Altria’s purchase of an interest in 

JUUL—together with the other evidence about Altria’s statements

regarding JUUL—was admissible as to PM would require disregarding that 

PM is a distinct corporate entity:

[C]ourts will look through the screen of corporate entity to the 

individuals who compose it in cases in which the corporation 

was a mere device or sham to accomplish some ulterior 

purpose, or [] a mere instrumentality or agent of another 

corporation or individual owning all or most of its stock, or 

where the purpose is to evade some statute or to accomplish 

some fraud or illegal purpose.

Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1117 (Fla. 1984) 

(quoting Mayer v. Eastwood-Smith & Co., 164 So. 684, 687 (Fla. 1936)).

To pierce the corporate veil, litigants must prove the following three 

factors by a preponderance of the evidence:

(1) the shareholder dominated and controlled the corporation 

to such an extent that the corporation’s independent 

existence, was in fact non-existent and the shareholders were 

in fact alter egos of the corporation;

(2) the corporate form must have been used fraudulently or 

for an improper purpose; and

(3) the fraudulent or improper use of the corporate form 

caused injury to the claimant.

Flooring Depot FTL, 330 So. 3d at 49 (citations omitted). Here, Rintoul 

offered no evidence to pierce the corporate veil to introduce the Altria and 

JUUL evidence.
8

We addressed a similar scenario in Humana Health Insurance Co. of 

Florida v. Chipps, 802 So. 2d 492 (Fla. 4th DCA 2001), where the trial 

court admitted testimony concerning nonparties that imputed culpability 

to the defendant. In Chipps, the plaintiff sued his healthcare insurer for 

cutting off benefits for specialized care for his child born with cerebral 

palsy. Id. at 494. He sought both compensatory and punitive damages. 

Id. At trial, the court allowed the plaintiff to offer testimony from parents 

of other critically ill children regarding insurers other than defendant’s

insurer Humana. Id. at 497. This court held:

To the extent that these insurers were not the same as 

Humana, we hold the court erred. Although they shared the 

same parent company (Humana, Inc.) and although the 

[plaintiff] argued that Humana, Inc. acted as an agent for its

subsidiaries in scheming to cut [plaintiff’s minor child] and 

others from the Medical case Management program, Humana, 

Inc. was not named as a party to this lawsuit. There was no 

attempt to pierce the parent company’s corporate veil or 

pursue a legal theory that would have allowed the jury to 

disregard the corporate structure and hold the subsidiaries 

responsible for each other’s conduct. The evidence was 

irrelevant and unduly prejudicial.

Id.

Similarly, in this case, the trial court admitted testimony regarding 

PM’s parent company Altria even though Altria was not a named party. 

Rintoul made no attempt to pierce the corporate veil and hold Altria 

responsible for PM. Moreover, PM does not share the same parent 

company with JUUL, as Altria is only a minority shareholder in JUUL. 

Even if JUUL were a wholly-owned subsidiary of Altria, Rintoul offered no 

basis for the jury to disregard its corporate structure and hold PM 

responsible for JUUL.

We also find the JUUL evidence should not have been admitted,

because punitive damages cannot be based on conduct which is dissimilar 

to that which harmed the plaintiff. “A defendant should be punished for 

the conduct that harmed the plaintiff, not for being an unsavory individual 

or business.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 

423 (2003). Conduct which is dissimilar from the conduct by which the 

injured party is harmed cannot be the basis for a punitive damage award 

to the injured party. Id. at 422.
9

In Campbell, the insured sued his insurer, State Farm, for failure to 

pay a claim against him arising out of an automobile accident. Id. at 412. 

The litigation against the insured for the automobile collision resulted in 

a judgment against the insured far in excess of the policy limits. Id. at 

413. The insured sued State Farm for bad faith and sought punitive 

damages. Id. at 414. At trial, the insured offered evidence of a nationwide 

scheme by State Farm to take cases to trial to meet corporate fiscal goals. 

Id. at 415. The trial court allowed the insured to admit substantial expert 

testimony regarding State Farm’s fraudulent practices over twenty years 

involving cases of all types, many of which did not involve third party 

automobile insurance claims. Id. On appeal from a punitive damage 

judgment in the amount of $145 million, the Utah Supreme Court upheld 

the punitive damage award, relying on the evidence of State Farm’s 

national tactics, finding State Farm’s conduct was “reprehensible.” Id. at 

415–16.

The Supreme Court held that the award was excessive and noted that 

State Farm’s handling of the insured’s claim was sanctionable with 

punitive damages. Id. at 429. Instead of punishing for the handling of the 

insured’s particular case, however, the case “was used as a platform to 

expose, and punish, the perceived deficiencies of State Farm’s operations 

throughout the country.” Id. at 420. The Court provided two reasons for 

disapproving the reference to State Farm’s nationwide practices in the 

case. Id. at 422. First, a state cannot punish a defendant for acts 

committed in another jurisdiction which were lawful where committed, as

the insured admitted many of State Farm’s policies were. Id. “Lawful outof-state conduct may be probative when it demonstrates the 

deliberateness and culpability of the defendant’s action in the State where 

it is tortious, but that conduct must have a nexus to the specific harm 

suffered by the plaintiff.” Id. Second, “[a] defendant’s dissimilar acts, 

independent from the acts upon which liability was premised, may not 

serve as the basis for punitive damages.” Id.

The Court also concluded that State Farm could not be punished as a 

“recidivist.” Id. at 423. “Although ‘[o]ur holdings that a recidivist may be 

punished more severely than a first offender recognize that repeated 

misconduct is more reprehensible than an individual instance of 

malfeasance,’ in the context of civil actions courts must ensure the 

conduct in question replicates the prior transgressions.” Id. (citing TXO

Prod. Corp. v. All. Res. Corp., 509 U.S. 443, 462 n.28 (1993) (noting that 

courts should look to “the existence and frequency of similar past 

conduct”)) (internal citation omitted).
10

Applying Campbell to this case, we conclude that the JUUL evidence 

could not be used to support a punitive damage claim for the harm caused 

to Caprio for at least two reasons. First, the specific conduct which led to 

Caprio’s death was his addiction to tobacco cigarettes and not e-cigarettes. 

While the nicotine in cigarettes causes an addiction, it is the smoking of 

the tobacco which results in the terrible diseases its participants can 

experience. Indeed, the Engle findings which form the basis of liability for 

this case require smoking cigarettes:

1 (that smoking cigarettes causes [certain named diseases, 

including lung cancer]),

945 So. 2d at 1254, 1276–77 (emphasis added); Hess v. Philip Morris USA, 

Inc., 175 So. 3d 687, 694 (Fla. 2015). E-cigarettes do not involve smoking 

tobacco, which was the cause of Caprio’s disease. Therefore, the harm 

caused by the tobacco is entirely dissimilar to the JUUL e-cigarettes.

Second, while Rintoul used JUUL to argue that PM continued to market 

to minors, getting them addicted to nicotine just as it had enticed minors 

to smoke in the 1950s, the joint marketing introduced at trial consisted of 

the placement of JUUL coupons in packs of PM cigarettes. However, 

because minors cannot legally purchase cigarettes, the coupon was lawful 

conduct directed at adults, not minors. This is not the same conduct 

which “replicates the prior transgressions.” See Campbell, 538 U.S. at 

423.

Because the court erred in admitting the JUUL evidence and argument, 

which became a feature of the trial and closing argument, we reverse and 

remand for a new trial on all issues. We cannot conclude that the error 

was harmless under Special v. West Boca Medical Center, 160 So. 3d 1251 

(Fla. 2014).

Rintoul’s Claim as Surviving Spouse

At the trial court, Rintoul made three related arguments in support of 

his right to bring a marital consortium claim. Marital consortium is 

defined under Florida law as a right arising from the marital union to have 

performance by a spouse of all the duties and obligations assumed by the 

marriage relationship, including the right to society, companionship, and 

services. See Gates v. Foley, 247 So. 2d 40, 43 (Fla. 1971). 

First, Rintoul contended that the Supreme Court’s holding in

Obergefell—that same-sex couples can no longer be denied the right to 

marry—should be applied retroactively to establish a marriage at a time 
11

before his partner’s (later spouse) manifestation of injury. Second, he 

asserted that this suggested retroactivity of Obergefell should be extended 

to him for the purpose of allowing him to claim consortium damages

because he would have been married before his partner’s onset of illness

but for Florida’s prior unconstitutional prohibition of same-sex marriage. 

Third, Rintoul argues the trial court did not err in submitting this issue to 

the jury as a finding of fact or in ultimately holding that he was entitled to 

bring his loss of consortium claim. We disagree as to all three of appellee’s

arguments.

In August 2014, a federal court ruled Florida’s same-sex marriage ban 

to be unconstitutional. Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 

2014).4 Although the court’s order in that case had been stayed 

temporarily, the stay expired in January 2015 when the State of Florida 

4 Prior to Obergefell, section 741.212, Florida Statutes (2014), governed samesex marriage in the state of Florida.

741.212 Marriages between persons of the same sex.—

(1) Marriages between persons of the same sex entered into in any 

jurisdiction, whether within or outside the State of Florida, the 

United States, or any other jurisdiction, either domestic or foreign, 

or any other place or location, or relationships between persons of 

the same sex which are treated as marriages in any jurisdiction, 

whether within or outside the State of Florida, the United States, or 

any other jurisdiction, either domestic or foreign, or any other place 

or location, are not recognized for any purpose in this state.

(2) The state, its agencies, and its political subdivisions may not 

give effect to any public act, record, or judicial proceeding of any 

state, territory, possession, or tribe of the United States or of any 

other jurisdiction, either domestic or foreign, or any other place or 

location respecting either a marriage or relationship not recognized 

under subsection (1) or a claim arising from such a marriage or 

relationship.

(3) For purposes of interpreting any state statute or rule, the term 

“marriage” means only a legal union between one man and one 

woman as husband and wife, and the term “spouse” applies only to 

a member of such a union.

§ 741.212, Fla. Stat. (2014).

In 2008, Florida amended its state constitution to define marriage as between 

a man and a woman. Art. I, § 27, Fla. Const. (2008). 
12

dropped its appeal of the case filed in the Eleventh Circuit Court of 

Appeals. See Order, Brenner v. Armstrong, No. 14-14061 (11th Cir. Oct. 

19, 2015) (granting voluntary dismissal of state’s appeal). Since then, 

Florida has recognized the legality of same-sex marriages.

However, regardless of Florida’s recognition of same-sex marriage in 

2015, the state’s law on common law marriage remained unaffected. A 

common law marriage is defined as “[a] marriage that takes legal effect, 

without license or ceremony, when a couple live together as husband and

wife, intend to be married, and hold themselves out to others as a married

couple.” Black’s Law Dictionary (11th ed. 2019). When common law 

marriages were recognized in Florida, they were given the “same dignity 

and recognition” as was accorded to ceremonial marriages. Budd v. J.Y.

Gooch Co., 27 So. 2d 72, 74 (Fla. 1946). Elements of common law marriage 

from that time in Florida included cohabitation and the essential 

requirement of a mutual agreement between the parties “to be husband 

and wife.” Phillips v. Phillips, 215 So. 2d 83, 84 (Fla. 3d DCA 1968).

Florida ceased to recognize common law marriages in 1968 by enacting

section 741.211, Florida Statutes (1968):

No common-law marriage entered into after January 1, 1968, 

shall be valid, except that nothing contained in this section 

shall affect any marriage which, though otherwise defective, 

was entered into by the party asserting such marriage in good 

faith and in substantial compliance with this chapter.

In Obergefell, the Court did not compel states to convert all same-sex 

relationships predating that decision into formally recognized marriages. 

576 U.S. at 681. Obergefell’s holding required a state to recognize a samesex marriage that was lawful in another state; it did not directly address 

the rights of same-sex couples who entered into some other arrangement 

or agreement, regardless of whether it took the form of an informal 

understanding or something more formal, such as a civil union or 

domestic partnership. Id. In fact, at no time before the 2015 Obergefell

ruling, or since, has the Florida Legislature acted to formally recognize 

such arrangements retroactively. 

Rintoul argued in the trial court that he could nonetheless recover loss 

of consortium damages as a surviving spouse if the jury found that he and 

Caprio would have been married had it been legal at the time of injury. Id.

at 675–76. Rintoul claimed, and the jury apparently agreed, that but for 

Florida’s unconstitutional prohibition on same-sex marriage, the couple 

would have been married years before the accrual of the cause of action. 

Rintoul emphasized at trial their long-time affection and commitment to 
13

one another. The parties’ commitment to one another is not disputed, yet

it is also not relevant to establishing Rintoul’s legal right to consortium 

damages. The fundamental flaw with his alleged standing to bring such a 

claim is that Rintoul and Caprio were not married under the laws of 

Florida, or any jurisdiction for that matter, at the time of the manifestation 

of Caprio’s injury.

Under Florida law, it is axiomatic that marriage is an essential element 

of a loss of marital consortium claim. A cause of action for this type of 

loss of consortium, being incident to the marriage relationship, cannot 

exist without it. Absent such a relationship, the right does not exist, and 

thus no recovery may be had for loss thereof. Submitting the issue of 

Rintoul and Caprio’s relationship to the jury under the circumstances was 

an indirect attempt to improperly give retroactive legal recognition to what 

was, for all intents and purposes, a common law marriage. Further, giving 

retroactive legal recognition to a common law relationship based on the

jury’s interrogatory finding on a verdict form was also error. Even 

assuming without deciding that Obergefell might have retroactive effect in 

certain limited circumstances, Florida law does not permit courts to create 

a “marriage by jury.”

Another well-established principle under Florida law is that a spouse 

assumes the risk of premarital injuries upon marriage. See Tremblay, 390 

So. 2d at 818; Fullerton v. Hosp. Corp. of Am., 660 So. 2d 389, 391 (Fla.

5th DCA 1995); Kelly, 211 So. 3d at 345. In Tremblay, the Second District

considered whether a consortium claim could be brought by the wife of a

decedent who succumbed to asbestos-related mesothelioma when their

marriage took place after the exposure causing the injury. 390 So. 2d at

816. The Second District held, “If an accident occurs when the 

relationship of husband and wife does not exist, a person does not acquire 

the right to claim a loss of consortium when [t]he [person] subsequently 

marries the injured party.” Id. at 818. Three reasons exist for the rule: (1) 

a person should not be permitted to marry a cause of action; (2) one 

assumes with a spouse the risk of deprivation of consortium arising from 

any prior injury; and (3) allowing loss of consortium claims arising from 

premarital injuries would provide for near-unlimited liability for 

tortfeasors. Green v. A.P.C., 960 P.2d 912, 918 (Wash. 1998); Stager v. 

Schneider, 494 A.2d 1307, 1315 (D.C. 1985).

The Tremblay court explained the rationale for this common law rule:

Since a cause of action for personal injury and the derivative

rights flowing therefrom ordinarily accrue when the tort is

committed, the courts concluded that to permit an unmarried
14

person to claim loss of consortium upon his marriage to an

injured spouse would have the effect of allowing him to marry

into the cause of action.

390 So. 2d at 817.

In Kelly, this court relied on Tremblay to hold that a spouse who had 

married the decedent after the occurrence of the latent injury that caused 

the decedent’s ultimate demise was precluded from recovering loss of 

consortium or pain and suffering damages under the Wrongful Death Act. 

211 So. 3d at 345. This court reiterated that under the common law, a 

loss of consortium claim required that the spouse be married to the person 

before the injury. Id.

Kelly also considered whether the “marriage before injury rule” was 

limited or whether it also applied in those cases where the injury is a latent 

injury that did not reveal itself until after the parties marry. Id. at 346.

There, the plaintiff argued that in the case of latent injuries “there would 

be no risk, or at least a diminished risk, of a spouse ‘marrying into a cause 

of action.’” Id. To resolve that issue, this court relied on the Fifth District’s

decision in Fullerton. Id. In that case, a husband attempted to make a 

consortium claim stemming from his wife’s exposure to radiation when she 

was a student trainee studying radiation technology at the hospital. 

Fullerton, 660 So. 2d at 390. Although she had been exposed before the 

marriage, they did not realize that she was injured until three years after 

they had married when she developed thyroid cancer. Id.

The Fifth District in Fullerton concluded that the husband could not 

maintain a consortium claim because his wife’s injury occurred prior to 

marriage, finding that “[i]n the absence of any statutory law on this point, 

Florida courts are required to follow the common-law rule.” Id. at 391.

The Fifth District also extended the Tremblay rule to include a situation 

where the plaintiffs were aware before the marriage that conduct that 

ultimately caused the injury—the wife’s exposure to radiation—had 

occurred even though they were not aware that she had been injured from 

the exposure.5 Id.; see also Bashaway v. Cheney Bros., 987 So. 2d 93, 95–

5 The Fullerton court certified the following question to the Florida Supreme 

Court:

WHETHER THE COMMON–LAW RULE SET FORTH IN TREMBLAY

V. CARTER, 390 SO. 2D 816 (FLA. 2D DCA 1980), PRECLUDES A 

CLAIM FOR LOSS OF CONSORTIUM WHEN THE INJURY WHICH 

FORMS THE BASIS OF THE CLAIM OCCURS PRIOR TO THE 
15

96 (Fla. 1st DCA 2008) (common law “marriage before injury rule” applied

to prohibit loss of consortium claim by unmarried partner in same-sex

relationship).

Under Florida law, a personal injury “cause of action accrues . . . when 

the injury was first inflicted, and not from the time when the full extent of 

the damages sustained have been ascertained.” Larson & Larson, P.A. v.

TSE Indus., Inc., 22 So. 3d 36, 42 (Fla. 2009) (quoting Seaboard Air Line

R.R. Co. v. Ford, 92 So. 2d 160, 164 (Fla. 1956) (on reh’g)). As set forth in 

Tremblay and Kelly, these accrual principles also apply to loss of marital 

consortium claims. Because this cause of action is incident to the marital 

relationship, our jurisprudence provides that if one spouse was injured 

before marriage, the other spouse has no right to recover damages for loss 

of consortium pertaining to that injury.

In Engle, the Florida Supreme Court stated that the “cut-off date” for 

class membership was November 21, 1996—the date the trial court 

recertified the class—and described the class as those “who have suffered, 

presently suffer or who have died from diseases and medical conditions 

caused by their addiction to cigarettes that contain nicotine.” Engle v. 

Liggett Grp., Inc., 945 So. 2d 1246, 1274 (Fla. 2006) (emphasis omitted) 

(quoting R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39, 40 (Fla. 3d 

DCA 1996)). The “critical event” in establishing membership in the Engle

class “is not when an illness was actually diagnosed by a physician, but 

when the disease or condition first manifested itself.” Engle, 945 So. 2d at 

1276 (second emphasis added). “The phrase ‘who have suffered, presently 

suffer or have died’ supports the view that the class should include only 

those people who were affected in the past or who were presently suffering 

at the time the class was recertified by the trial court.” Id. at 1275.

Applying the Engle decision, this court concluded in R.J. Reynolds

Tobacco Co. v. Ciccone, 123 So. 3d 604 (Fla. 4th DCA 2013), that the “key 

point in determining Engle class membership is pinpointing when the 

plaintiff began ‘suffering’ from the smoking-related illness or when the 

illness ‘manifested.’” Id. at 615 (quoting Engle, 945 So. 2d at 1275). On 

review of our decision, the Florida Supreme Court in R.J. Reynolds Tobacco 

Co. v. Ciccone, 190 So. 3d 1028, 1030–31 (Fla. 2016), approved this court’s 

definition of “manifestation,” stating that “manifestation” for purposes of 

establishing membership in the Engle class means the point at which the 

MARRIAGE BUT THE CAUSE OF ACTION DOES NOT ACCRUE 

UNTIL THE INJURY IS DISCOVERED DURING THE MARRIAGE.

Since that case, the Florida Supreme Court has never resolved this question.
16

plaintiff began suffering from or experiencing symptoms of a tobaccorelated disease or medical condition. “Under the definition we adopt, the 

plaintiff does not need to have been formally diagnosed or know that the 

symptoms were tobacco-related prior to the ‘cut-off date’ for class 

membership.” Id. However, the court consistently referred to whether the 

plaintiff was “suffering from a tobacco-related disease” as the critical event 

in establishing whether the disease or condition had manifested itself. Id.

at 1036.

Unlike in Kelly, this case deals with a patent injury and not a latent 

injury. However, because even a latent injury that precedes marriage 

would prevent a marital consortium claim, clearly a patent injury, as in 

this case, would do so as well. Because any deviation from the common 

law by statute must be unequivocal or so repugnant to the common law 

that the two cannot co-exist, we held in Kelly that the Wrongful Death Act 

could not be held to have changed the common law. Kelly, 211 So. 3d at 

342. Thus, while Kelly is instructive as a latent injury case, it is not 

completely dispositive when applied to a case involving a patent injury. 

Recognizing Kelly’s precedential effect, Rintoul argues that we should 

reconsider that decision. We decline to do so.

The cases which Rintoul cites in support of his argument that 

Obergefell should be applied retroactively to establish a marriage preexisting 1996, when Caprio’s COPD first manifested, are inapplicable here. 

Those cases, all from other states, deal with the retroactive recognition of 

common law marriages for same-sex couples in those jurisdictions where 

such marriages were otherwise recognized for heterosexual partners and 

where there was factual support for finding the existence of a common law 

marriage. For instance, in Ranolls v. Dewling, 223 F. Supp. 3d 613, 625

(E.D. Tex. 2016), the court applied Obergefell retroactively to permit a 

spouse to assert a claim for damages for the wrongful death of the decedent 

based upon the long-standing recognition of common law marriages in 

Texas. Under Texas’s informal marriage statute, a common law marriage 

may be established through the proffer of evidence that the couple “agreed 

to be married and after the agreement they lived together in this state” and 

“represented to others that they were married.” Id. at 618 (quoting Tex. 

Fam. Code § 2.401); see also Swicegood v. Thompson, 865 S.E.2d 775 (S.C. 

2021); LaFleur v. Plyfer, 479 P.3d 869 (Colo. 2021); In re J.K.N.A., 454 P.3d 

642 (Mont. 2019); In re Estate of Carter, 159 A.3d 970 (Pa. Super. Ct. 

2017). As noted in Anderson v. South Dakota Ret. Sys., 924 N.W.2d 146, 

150 (S.D. 2019), courts applying Obergefell retroactively did so to recognize 

a common law marriage which was legal in the state of the parties’ 

residence.
17

Although Rintoul and Caprio lived together for years and purchased 

property together, they never attempted to obtain a marriage license. In 

testimony, Rintoul stated that their commitment to each other was 

reflected by the couple moving in together. Yet that conduct is common 

among many couples, both same-sex and heterosexual. Such conduct

does not create a marriage. Without obtaining a marriage license, one 

cannot be married in Florida. Even with retroactive application in certain 

limited circumstances, Obergefell would not support recognizing a 

marriage between Rintoul and Caprio before 1996.

In sum, the lower court in this case agreed to let a jury reach back in 

time and establish a same-sex marriage even though Florida did not 

recognize then, or now, common law marriage. Rintoul asks this court to 

affirm the establishment of a “common law” marriage. However, juries 

cannot create marriages in Florida, and courts cannot recognize one where 

none existed. Though Rintoul attempts to frame the couple’s relationship 

as “just like a marriage,” the fact remains undisputed that they were not

married under Florida law until 2015. And because Florida has not 

recognized common law marriages since 1968, the result is clear: Rintoul 

and Caprio would have had to be legally married at the time of the 

manifestation of Caprio’s injury in 1996 to have a viable marital 

consortium claim in this case. In accordance with Tremblay and Kelly,

Rintoul cannot claim damages for loss of consortium or pain and suffering 

as a surviving spouse in either a survival action or under Florida’s 

Wrongful Death Act. Therefore, we reverse Rintoul’s final judgment for 

loss of consortium.

Closing Argument

PM and RJR also argue that plaintiff’s counsel’s closing arguments were

replete with improper arguments. We need not detail those arguments as 

many of these same closing argument comments have already been 

addressed in other cases. See, e.g., R.J. Reynolds Tobacco Co. v. Gafney, 

188 So. 3d 53, 58 (Fla. 4th DCA 2016); R.J. Reynolds Tobacco Co. v. 

Mahfuz, 324 So. 3d 495, 497 (Fla. 4th DCA 2021); R.J. Reynolds Tobacco 

Co. v. Neff, 325 So. 3d 872, 879 (Fla. 4th DCA 2021). If this case is tried 

again, counsel has been well warned to steer clear of such arguments.

Conclusion

For the foregoing reasons, we reverse the final judgment in favor of the 

Estate and remand for further proceedings, including a new trial on all 

issues. Sheffield requires the reversal of the punitive damage award and 

remand for further proceedings in accordance with the statute as 
18

amended. 329 So. 3d at 125. A new trial is also required because of the 

admission of JUUL evidence and argument. Finally, we reverse the award 

of damages to Rintoul for loss of consortium and pain and suffering 

damages based upon Tremblay, Fullerton, and Kelly. We also certify 

conflict with Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212 (Fla. 5th 

DCA 2018).

Reversed and remanded for further proceedings.

LEVINE and KLINGENSMITH, JJ., concur.

LEVINE, J., concurs specially with opinion, in which KLINGENSMITH, J., 

concurs.

WARNER, J., concurs in part and dissents in part with opinion.

LEVINE, J., concurring specially.

I agree with the majority opinion but write to explain in greater detail 

why we cannot “backdate” appellee’s marriage to predate the decedent’s 

injury. Appellee asks us to make a “very narrow exception” to the common 

law rule, recognized by this court in Kelly v. Georgia-Pacific, LLC, 211 So. 

3d 340 (Fla. 4th DCA 2017), that a spouse must be married to the injured 

spouse before the date of injury or exposure to injury. We cannot make 

that “very narrow exception” to the law because the judiciary is without 

power to do so—only the legislature in our system of separation of powers 

can enact laws and create any statutory exceptions. The legislature 

created the statutory acceptance of the common law in Florida in absence 

of clear statutory guidance. See § 2.01, Fla. Stat. (2022). The legislature 

also created the wrongful death statute which outlined when and who can 

file claims under the law. See § 768.21, Fla. Stat. (2022).

No matter how sympathetic we are to appellee’s argument, we cannot 

create or effectively “legislate” an exception to well-established law. We 

cannot judicially “backdate” a marriage to allow appellee to proceed with 

his claim. Neither can we create an effective “common law” marriage, 

especially since the Florida Legislature has forthrightly and directly 

abolished common law marriage by statute as of January 1, 1968. See § 

741.211, Fla. Stat. (2022). Only the legislature can change the law. Thus, 

based on the present law, we must reverse.

In Kelly v. Georgia-Pacific, LLC, this court concluded that “the Wrongful 

Death Act does not, directly or indirectly, abrogate or supersede the 

common law requirement that the spouse must be married to the injured 

party at the time of the injury to recover for loss of consortium.” 211 So. 

3d at 345. In Kelly, the spouse asked this court also to make an exception, 
19

like in the present case, arguing that since the injury in Kelly was latent 

“there would be no risk, or at least a diminished risk, of a spouse ‘marrying 

into a cause of action.’” Id. at 346.

We declined to make an exception in Kelly, as we do in the present case, 

because “[i]n the absence of any statutory law on this point, Florida courts 

are required to follow the common-law rule.” Id. (quoting Fullerton v. Hosp.

Corp. of Am., 660 So. 2d 389, 391 (Fla. 5th DCA 1995)). Once common 

law is established, the courts “cannot abrogate, modify, repeal, or amend 

rules long established and recognized as parts of the law of the land.” State 

v. Egan, 287 So. 2d 1, 7 (Fla. 1973). Instead, “it is the province of the 

legislature and not of the court to modify the rules of the common law.” 

Id. at 6. Thus, any statute modifying, or as appellee asks us to do, creating 

an exception, must “explicitly, clearly, and unequivocally” supersede the 

common law. Kelly, 211 So. 3d at 343. We found in Kelly that the 

“legislature did not explicitly and clearly overrule the common law 

limitation on loss of consortium when enacting the Wrongful Death Act” 

and that “the common law marriage before injury rule was incorporated 

into the Act.” Id. at 345. Thus, it is up to the legislature to create the 

contours of legislation, and to decide whether to create statutory 

“exceptions” to the law.

Legislatures in other states, such as Delaware, Illinois, and 

Washington, have taken initiative to create a statutory process to backdate 

the date of marriage for pre-existing domestic partnerships and civil 

unions. Charles W. “Rocky” Rhodes, Loving Retroactivity, 45 Fla. St. U.L. 

Rev. 383, 429 (2018); Del. Code Ann. tit. 13, § 218(e) (2022); 750 Ill. Comp. 

Stat. 75/65(b) (2021); Wash. Rev. Code § 26.60.100(4) (2022); see also

Colo. Rev. Stat. § 14-15-118.5 (2022) (calculating the duration of the 

marriage to include the time in which the parties were in a civil union).

Other states, such as Connecticut, New Hampshire, and Rhode Island, 

by statute merged civil unions into marriages without backdating the date 

of marriage to the date of the pre-existing civil union—the effective date of 

the marriage is the date of recording of the marriage certificate. See Conn. 

Gen. Stat. §§ 46b-38qq(b), 46b-38rr(a) (2022); N.H. Rev. Stat. Ann. § 

457:46(II) (2022); R.I. Gen. Laws § 15-3.1-13 (2022).

In any event, it was the legislature in each state that made the decision 

of what pre-existing domestic partnerships or civil unions would be 

merged into marriages and whether the marriages would be “backdated” 

or not. Absent such action from the Florida Legislature to create an 

exception for same-sex couples prohibited from marrying prior to the 

decedent’s injury, appellee is without redress. “To create such an 
20

exception when one does not clearly exist would constitute impermissible 

judicial legislation. The wisdom of creating such an exception should be 

addressed to the legislature.” Martin v. Town of Palm Beach, 643 So. 2d 

112, 115 n.7 (Fla. 4th DCA 1994) (citation omitted). Florida has never 

passed statewide recognition of civil unions and domestic partnerships, 

though a few Florida counties have recognized domestic partnerships via 

ordinances. See Lowe v. Broward County, 766 So. 2d 1199 (Fla. 4th DCA 

2000) (discussing the constitutionality of the Broward County Domestic 

Partnership Act).

In the absence of legislative statutory guidance, Charron v. Amaral, 889 

N.E. 2d 946 (Mass. 2008), is instructive. In Charron, appellant and Kalish 

entered into a relationship starting in 1990. Id. at 947. They exchanged 

rings in a private ceremony in 1994. Id. Appellant was diagnosed with 

breast cancer in 2003. Id. at 948. Subsequently both appellant and Kalish 

applied for a marriage license on the first day Massachusetts permitted 

same sex marriage, in 2004, as a result of Goodridge v. Department of 

Public Health, 798 N.E. 2d 941 (Mass. 2003). Charron, 889 N.E. 2d at 948. 

The Supreme Judicial Court of Massachusetts rejected Kalish’s “argument 

that we should allow her to recover for the loss of consortium because she 

meets all other criteria for recovery and would have been married but for 

the legal prohibition.” Id. at 950. In Charron, the court concluded that 

the court in Goodridge “never stated that people in same-sex, committed 

relationships (including the Goodridge plaintiffs, who had applied for, and 

were denied, marriage licenses) would be considered married before they 

obtained a marriage license.” Id. at 950-51. Further, the court noted it 

did not “state that it was amending, in any way, the laws concerning the 

benefits available to couples who marry to make up for past discrimination 

against same-sex couples.” Id. at 951.

Similarly, in the present case, we cannot treat a couple married prior 

to obtaining a marriage license. We cannot backdate, or judicially create, 

a nonexistent marriage license. Nor, like in Charron, can we “amend” the 

laws concerning “the benefits” available for appellee. This court may not 

create a license or “engage in forensic retrospective marriage 

construction.” Hawkins v. Grese, 809 S.E. 2d 441, 449 (Va. Ct. App. 2018) 

(“That Hawkins and Grese were legally forbidden to marry in the 

Commonwealth at the time they began their relationship does not 

establish that they would have exercised the option if it were available.”); 

see also Lake v. Putnam, 894 N.W. 2d 62, 66 (Mich. Ct. App. 2016) (“While 

we acknowledge that the issue presented in this case is complex, we simply 

do not believe it is within courts’ discretion to, at the request of one party 

and in light of the United States Supreme Court’s decision in Obergefell v. 

Hodges, 576 U.S. [644] (2015), retroactively transform an unmarried 
21

couple’s past relationship into marriage for the purpose of custody 

proceedings.”).

Anderson v. South Dakota Retirement System, 924 N.W. 2d 146 (S.D. 

2019), is also persuasive. An individual retired in 2012 and married 

appellant in 2015 right after Obergefell was decided. Id. at 147-48. That 

retired individual died in 2017, and appellant sought survivor’s benefits. 

Id. at 148. The South Dakota law defined the surviving spouse eligible for 

survivor’s benefits as a “person who was married to the member at the 

time of the death of the member and whose marriage was both before the 

member’s retirement and more than twelve months before the death of the 

member.” Id. at 149 (citation omitted). The court confronted the issue of 

whether it may “create a marriage post hoc.” Id. at 150. The South Dakota 

court stated that “assuming without deciding that Obergefell applies 

retroactively, there was no marriage, act of solemnization, or common-law 

marriage to refer back to.” Id. Further, South Dakota “does not recognize 

common-law marriage, requiring that a marriage ‘be solemnized, 

authenticated, and recorded.’” Id. at 151 (citation omitted). The court 

concluded that appellant could not meet the statutory definition of a 

spouse and thus was not entitled to survivor’s benefits. Id.; see also In Re 

Estate of Leyton, 22 N.Y.S.3d 422, 422 (N.Y. App. Div. 2016) (Under New 

York law, Obergefell “does not compel a retroactive declaration that the 

‘Commitment Ceremony’ entered into by decedent and Hunter in 2002, 

when same-sex marriage was not recognized under New York law, was a 

legally valid marriage for purposes of the ‘former spouse’ provisions . . . .”).

In the present case, like South Dakota in Anderson, Florida does not 

recognize common-law marriages. See § 741.211, Fla. Stat. (2022) 

(refusing to recognize any common law marriages entered into after 

January 1, 1968). States recognizing common law marriage have in 

certain circumstances allowed same-sex couples to backdate their 

marriage as these states statutorily do not require a marriage license. See 

In re Estate of Carter, 159 A.3d 970, 977-78 (Pa. Super. Ct. 2017) 

(“Consequently, because opposite-sex couples in Pennsylvania are 

permitted to establish, through a declaratory judgment action, the 

existence of a common law marriage prior to January 1, 2005, same-sex 

couples must have that same right.”) (citation omitted); LaFleur v. Pyfer, 

479 P. 3d 869, 874 (Colo. 2021).

The dissent says “we should reconsider” Kelly, referencing the Florida 

Supreme Court’s decision in Sheffield. However, Sheffield does not affect 

Kelly. Sheffield determined the date of injury for purposes of entitlement 

to punitive damages under section 768.73. In contrast, Kelly involved the 

issue of the date of marriage for determining standing to proceed on an 
22

action for non-economic damages arising from loss of consortium. The 

dissent conflates these two disparate issues. The dissent’s position, a 

“marriage after injury” rule, would allow a person to marry into an active 

lawsuit only one day before death, effectively gutting the common law rule. 

This is contrary to the dictates of Kelly and Ripple v. CBS Corp., 47 Fla. L. 

Weekly D750 (Fla. 4th DCA Mar. 30, 2022).

In summary, there is no statutory basis in Florida to create or 

“backdate” a marriage even assuming the parties had solemnized a civil 

union or domestic partnership at a date prior to the injury. From the time 

preceding the adoption of the United States Constitution, the founding 

generation realized that separation of powers was of paramount concern, 

not just as a structure of government, but also as a guardrail to safeguard 

the rights of the citizenry.

A little attention to the subject will convince us, that these 

three powers ought to be in different hands, and independent 

of one another, and so ballanced [sic], and each having that 

check upon the other, that their independence shall be 

preserved—If the three powers are united, the government will 

be absolute, whether these powers are in the hands of one or 

a large number. The same party will be the legislator, accuser, 

judge and executioner; and what probability will an accused 

person have of an acquittal, however innocent he may be, 

when his judge will be also a party.

If the legislative and judicial powers are united, the maker 

of the law will also interpret it; and the law may then speak a 

language, dictated by the whims, the caprice, or the prejudice 

of the judge, with impunity to him . . . .

Theophilus Parsons, Essex Result (1778), reprinted in Memoir of 

Theophilus Parsons, Chief Justice of the Supreme Judicial Court of 

Massachusetts; with Notices of Some of His Contemporaries 373 

(Theophilus Parsons ed. 1859).

The judiciary cannot create that missing statutory basis, otherwise 

“[t]he accumulation of all powers, legislative, executive, and judiciary” 

would be “in the same hands, whether of one, a few, or many, and whether 

hereditary, self-appointed, or elective, may justly be pronounced the very 

definition of tyranny.” The Federalist No. 47, at 298 (James Madison) 

(Clinton Rossiter ed., 2003).
23

WARNER, J., concurring in part and dissenting in part.

I concur with the majority opinion except the majority’s declination to 

reconsider Kelly v. Georgia-Pacific, LLC, 211 So. 3d 340 (Fla. 4th DCA 

2017), although I acknowledge that another panel of this court has 

recently reaffirmed this court’s adherence to Kelly. See Ripple v. CBS 

Corp., 47 Fla. L. Weekly D750 (Fla. 4th DCA Mar. 30, 2022). I believe that

Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114 (Fla. 2021), affects 

the analysis of Kelly, and for that reason, I think we should reconsider it.

I would adopt the analysis of Judge Taylor’s dissent in Kelly. In 

addition, I would point out that a loss of consortium claim is a derivative 

claim to the claim of the injured spouse. “[The spouse’s] right of action is 

a derivative right and she may recover only if her husband has a cause of 

action against the same defendant.” Gates v. Foley, 247 So. 2d 40, 45 (Fla. 

1971). Because the cause of action for loss of consortium is derivative, it 

must accrue when the injured spouse’s claim accrues. See Tremblay v. 

Carter, 390 So. 2d 816, 817 (Fla. 2d DCA 1980). Therefore, the common 

law rule requiring a spouse to be married at the time of the injury makes 

sense, because that generally is when the tort cause of action accrues for 

the injured spouse and thus when any derivative claim would accrue.

The Wrongful Death Act, however, created a new, direct cause of action 

not recognized at common law. As noted in Sheffield, 329 So. 3d at 123, 

the cause of action for wrongful death, and the damages permitted under 

the Act, accrue at the date of death, not the date of injury, and the law at 

the date of death is to be applied. “[A]bsent a death, there can be no ‘cause 

of action’ for wrongful death.” Id. At the date of death, the common law 

provided no right to recover damages for injuries to a decedent or a spouse.

The Wrongful Death Act changed this. The statute authorizes the recovery 

to the surviving spouse for “loss of the decedent’s companionship and 

protection and for mental pain and suffering from the date of injury.” § 

768.21(2), Fla. Stat. (2019). This is a direct cause of action, not a 

derivative cause. And it allows the spouse to recover not only loss of 

consortium but also for pain and suffering, an element of damage not 

allowed under common law.

Kelly held that the common law “marriage before injury” rule was not 

abrogated by the statute because “[t]he presumption is that no change in 

the common law is intended unless the statute is explicit and clear in that 

regard.” 211 So. 3d at 344 (quoting Thornber v. City of Ft. Walton Beach, 

568 So. 2d 914, 918 (Fla. 1990)). Thus, “[u]nless a statute unequivocally 

states that it changes the common law, or is so repugnant to the common 
24

law that the two cannot coexist, the statute will not be held to have 

changed the common law.” Id.

I find Kelly’s reliance on Thornber to be misplaced. In Thornber, the 

issue presented to the court was whether city council members could 

receive reimbursement for attorney’s fees expended successfully enjoining 

a recall petition. 568 So. 2d at 916. The trial court denied fee entitlement

to the council members under section 111.07, Florida Statutes, because 

the statute allowed for reimbursement of fees for the defense of an action.

The council had initiated the action and the trial court found that section 

111.07 was the exclusive method to obtain reimbursement. Id.

On petition for certiorari, the Florida Supreme Court explained that at 

common law, Florida officials were entitled to reimbursement for fees 

expended while defending against litigation arising from the performance 

of their duties and while serving a public purpose. Id. at 916–17. For the 

purposes of the common law, the court found that the council members 

were “defending” from an offensive posture of seeking to enjoin the recall 

petition. Thus, under the common law, the council members were entitled 

to their fees. Id. at 917. The court then turned to the statute and 

concluded that it did not change the common law “completely” so as to 

provide the exclusive method of securing reimbursement for fees expended 

by public officials. Id. at 918. “Whether a statutory remedy is exclusive 

or merely cumulative depends upon the legislative intent as manifested in 

the language of the statute. The presumption is that no change in the 

common law is intended unless the statute is explicit and clear in that 

regard.” Id. “We agree with the district court that section 111.07 

recognizes the common law but disagree that the legislature intended this 

statute to replace the common law completely.” Id.

The statute in Thornber acted on an existing common law principle, and 

the supreme court found that both the common law and the statute could 

co-exist, because the statute did not expressly exclude the common law. 

Contrast the statute in Thornber with the Wrongful Death Act. The Act 

created a cause of action where no cause of action at common law existed. 

The Act replaced the common law “completely.”

The Legislature provided for an independent action which allowed a 

surviving spouse to recover for loss of consortium and pain and suffering 

caused by the death of the other spouse. See § 768.21(2), Fla. Stat. (2019). 

Kelly removes that cause of action so that the surviving spouse who is not 

married at the time of an earlier injury has no cause of action. To limit 

the spouse’s damages because of the date of the marriage adds 

qualifications to the statutory language not present within its terms.
25

Further, the Act repudiates the common law principle which excludes 

any post-death action. The Act provides, “[i]t is the public policy of the 

state to shift the losses resulting when wrongful death occurs from the 

survivors of the decedent to the wrongdoer. [The Act is] remedial and shall 

be liberally construed.” § 768.17, Fla. Stat. (2019). Hence, the Act is 

designed “to substitute the financial resources of the wrongdoer for the 

resources of the decedent” to meet the decedent’s financial obligations and 

“to prevent a tortfeasor from evading liability for his or her misconduct 

when such misconduct results in death[.]” Wagner, Vaughan, McLaughlin 

& Brennan, P.A. v. Kennedy Law Grp., 64 So. 3d 1187, 1191 (Fla. 2011). 

Practically, application of the “marriage before injury” rule when the 

decedent’s only survivor is a surviving spouse, as in this case, subverts 

this stated purpose by precluding the surviving spouse from bringing a 

claim. Application of the marriage before injury rule to the Act prevents

cost shifting to the wrongdoer as intended by the legislature and allows a 

wrongdoer to evade liability.6

I would hold that the surviving spouse is entitled to recover the 

damages allowed in the Act. The Legislature created a cause of action not 

recognized by the common law and thus the Act in its entirety is contrary 

to the common law. It is within the Legislature’s prerogative to set the 

elements of a cause of action. If the Legislature intended to bar recovery 

for spouses who did not marry the decedent prior to the injury, even 

though the spouses were married at the date the cause of action accrued, 

i.e. the death, let the Legislature say so. It is not the place of the judiciary 

to disregard the plain language of the Act or to add words to alter its 

express purpose. I would also certify conflict between Kelly and Domino’s 

Pizza, LLC v. Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018).

* * *

Not final until disposition of timely filed motion for rehearing.

6 In his concurrence, Judge Levine suggests that my analysis is incorrect because 

it would allow a person to marry into an active lawsuit only one day before the 

spouse’s death and then recover as a surviving spouse. While technically such a 

result could occur, the concern overlooks the fact that “the jury system continues 

to be the finest method ever devised for the resolution of disputes.” See Devoney 

v. State, 717 So. 2d 501, 505 (Fla. 1998). A jury, in weighing the evidence offered 

by both sides to determine a surviving spouse’s loss of consortium and pain and 

suffering, would certainly take into consideration the length of the marriage.