Opinion
Case Nos. 4D01-912, 4D01-1082, 4D01-1115.
Opinion filed February 11, 2004.
Consolidated appeals from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Edward H. Fine, Judge, L.T. Case Nos. CL 95-5464 AI CL 96-8765 AI.
Hinda Klein of Conroy, Simberg, Ganon, Krevans Abel, P.A., Hollywood, for appellants Michael E. Larusso and Felipe S. Jonior.
Shelley H. Leinicke of Wicker, Smith, O'Hara, McCoy, Graham Ford, P.A., Fort Lauderdale, for appellant Mark Samarel.
Doreen E. Lasch of the Law Offices of Roland Gomez, Miami Lakes, and David B. Pakula of David B. Pakula, P.A., Weston, for appellant Southern Group Indemnity, Inc.
Edna L. Caruso of Caruso, Burlington, Bohn Compiani, P.A., West Palm Beach, and Gregg A. Schlesinger and Todd R. McPharlin of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellees Brian Garner and Braden Daniel Garner.
We withdraw our previous opinion and substitute the following opinion in its place.
This opinion addresses only certain issues and arguments raised in these consolidated appeals. Southern Group Indemnity, Inc. ("SGI") appeals the final judgment entered in favor of Brian Garner and his son, Braden Garner. Felipe Jonior ("Jonior"), Mark Samarel ("Samarel") and Michael Larusso ("Larusso") seek review of the awards to Braden for his injuries and loss of consortium and to Brian for loss of consortium.
The separate appeals of Larusso and Jonior, Samarel, and Southern Group Indemnity were consolidated.
The appeals in this case stem from a tragic accident that occurred on October 27, 1994. Ana Martinez Garner, Brian's wife of approximately two weeks, who was three-months pregnant with Braden, was driving a Toyota Tercel that she alone owned. She was stopped at the traffic light at the intersection of Glades Road and State Road 441 in Boca Raton, an intersection that was under construction. Jonior, driving a vehicle owned by Larusso, turned from 441 onto Glades Road and collided with the vehicle Samarel was driving through the intersection. Samarel's vehicle spun out of control as a result of the collision and crashed into Ana's Tercel on the driver's side. As a result of this second collision, Ana sustained severe brain damage and bodily injury. Despite these serious injuries and a resulting coma, Ana carried Braden to term.
Ana, through a temporary guardian necessitated by her injuries, filed an automobile negligence personal injury lawsuit against Larusso, Jonior, Samarel, the Florida Department of Transportation, and the construction companies at work on the intersection (Metric and Hardrives). Brian, individually and as parent and guardian of his son Braden, sued the same defendants as well as SGI, the automobile insurance carrier that insured his 4Runner. The lawsuits were consolidated for trial. During the litigation, Ana and Brian were divorced. Because Ana settled her lawsuit, her claims are not the subject of this appeal.
Under review in this case are the claims of Brian and Braden as well as the question of whether Brian owned an automobile insurance policy that provided uninsured motorist benefits at the time of Ana's accident. On behalf of Braden, Brian filed personal injury claims for Braden's organic brain injury sustained both in utero during the accident and as a result of subsequent treatment, as well as a claim for loss of consortium regarding Braden's relationship with his mother. Brian filed his own claims for loss of consortium as to his wife and son due to their permanent injuries. As to SGI, Brian and Braden sought uninsured motorist benefits from the insurer of Brian's 4Runner to assist in paying damages resulting from the accident.
SGI moved for summary judgment, asserting that at the time of Ana's accident, Brian no longer had automobile insurance coverage under the policy on his 4Runner because: (1) Brian had cancelled his policy effective prior to Ana's accident on October 27, 1994 and (2) as a matter of law, Brian had no insurable interest after he sold his 4Runner on October 12, 1994. Summary judgment was denied and the case proceeded to trial.
At the conclusion of the trial, SGI moved for directed verdict arguing, inter alia, that even if Brian's SGI policy were in effect at the time of Ana's accident, the uninsured motorist coverage in Brian's policy did not cover the accident. The trial court denied the motion and submitted the case to the jury.
The jury found, inter alia, that Brian's policy was not cancelled effective on or before the October 27 accident date, that Brian provided notice of the accident within thirty days of October 12 to the insurance agency or insurance company, and that the SGI policy provided uninsured motorist benefits for the October 27 accident.
Regarding liability, the jury found Jonior to be thirty percent at fault for the accident, Samarel to be sixty percent at fault, and divided the remaining ten percent of fault between the construction companies working on the intersection. Braden was awarded one million dollars for future lost earning capacity and future medical treatment for his injuries sustained in utero. He was also awarded three million dollars for the loss of his mother's consortium and two million dollars for permanent injuries sustained in the accident. Brian was awarded $300,000 for the loss of Ana's consortium and $500,000 for the loss of Braden's consortium. Larusso, Jonior, and Samarel appeal these verdicts on grounds that an as yet unborn fetus cannot claim loss of consortium and that Brian and Braden's consortium damages should have been limited to the duration of Braden's minority.
The following is a list of the facts most pertinent to resolving the issues on appeal. In July 1994, Brian purchased a six-month SGI automobile insurance policy for his 4Runner, effective on July 21. He sold this vehicle on October 12, 1994. On October 27, 1994, his wife at the time, Ana, was involved in an automobile accident with her Tercel which she alone owned and separately insured with another insurance company. On November 10, 1994, Brian telephoned his insurance agent to notify her of Ana's accident and informed her that he had sold the 4Runner. The agent believed that Brian had coverage for Ana's accident under the policy. Brian was instructed to obtain a copy of the purchaser's registration for the 4Runner and visit the agency to execute the necessary paperwork. On November 14, 1994, when Brian went to the agency's office with the purchaser's registration, his insurance agent drafted a letter which Brian signed reflecting the sale of the 4Runner and attempting to cancel the policy retroactive to October 12. It is this November 14 letter that SGI contends retroactively cancelled Brian's policy. It is undisputed that Brian did not request a retroactive cancellation. In a letter dated November 22, 1994, the attorney for Brian and Ana inquired about coverage for Ana's accident under Brian's policy. SGI's adjustment firm replied by letter on December 8, 1994 that the policy was cancelled on October 12 and that payment of any claim arising from the October 27 accident would be denied. Based on these facts, we now turn to the various arguments made in support of SGI's fundamental contention that on the day of Ana's accident, Brian did not own an SGI policy that afforded uninsured motorist benefits.
When insurance coverage is in question, the applicable standard of review is de novo. Allstate Ins. Co. v. Rush, 777 So.2d 1027, 1029 (Fla. 4th DCA 2000).
Several rules for insurance policy interpretation were stated in Roberts v. Florida Lawyers Mutual Insurance Co., 839 So.2d 843 (Fla. 4th DCA 2003):
The scope and intent of insurance coverage is defined by the language and terms of the policy. In construing an insurance policy, the court should read the policy as a whole, giving every provision its full meaning and operative effect. Any ambiguities in an insurance policy are to be interpreted liberally and in favor of the insured and strictly against the insurer. A policy is ambiguous when the language is subject to "more than one reasonable interpretation, one providing coverage and another limiting coverage."
Id. at 845 (citations omitted). These rules of interpretation are consistent with an insurance policy's status as a contract of the parties. Cont'l Cas. Co. v. City of Ocala, 127 So. 894, 895 (Fla. 1930); see Planck v. Traders Diversified, Inc., 387 So.2d 440, 441 (Fla. 4th DCA 1980). When the language of an insurance policy "is clear and unambiguous, it must be construed to mean `just what the language therein implies and nothing more.'" Walker v. State Farm Fire Cas. Co., 758 So.2d 1161, 1162 (Fla. 4th DCA 2000).
Now, we address SGI's argument that the trial court erred by failing to grant its motion for summary judgment on two grounds. The first is that Brian's policy had been retroactively cancelled. The second is that he had no insurable interest at the time of Ana's accident.
To answer whether Brian's policy was retroactively cancelled, it is necessary to review the language of Brian's SGI insurance policy. The policy provides that after the policy is in effect for two months:
The named insured shown in the Declarations may cancel by:
(1) returning this policy to us; or
(2) giving us advance written notice of the date cancellation is to take effect.
Brian purchased the policy in July and the relevant events took place in October and November, so this provision was in effect.
No evidence was presented that Brian returned the policy to SGI, so cancellation was not accomplished by the first method set forth in the policy. Regarding the second method of cancellation, the requirement that written notice be given in advance of the date the cancellation is to take effect means that Brian's cancellation could have become effective no earlier than November 14, the day Brian requested cancellation in writing. To conclude otherwise would render meaningless the policy's requirement of advance written notice of the cancellation date. Thus, contrary to SGI's assertion, Brian's policy, by the clear and unambiguous terms of the contract, could not have been retroactively cancelled effective October 12, even if Brian had requested retroactive cancellation, which he did not. Because Brian did not cancel his policy by either method prior to Ana's October 27 accident, we conclude that the trial court did not err in denying SGI's motion for summary judgment on the ground that Brian had retroactively cancelled his SGI policy prior to Ana's accident.
SGI's second ground in support of its motion for summary judgment also fails. SGI asserts that Brian no longer had an insurable interest once he sold his 4Runner on October 12, and therefore the policy ceased to provide coverage by operation of law. Without regard for the language of the insurance policy, SGI bases this argument on Johnson v. Aetna Life Casualty Co., 472 So.2d 859 (Fla. 3d DCA 1985), and the Florida Statutes cited therein, sections 627.405 and 627.727(1).
Florida Statute section 627.405 as relied upon by SGI provides:
(1) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured as at the time of the loss.
(2) "Insurable interest" as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.
Considering section 627.405, SGI reasons as follows. When Brian sold his 4Runner, he no longer had any insurable interest. Without an insurable interest, Brian could not enforce the insurance policy to recover uninsured motorist benefits. In essence, SGI argues that coverage under Brian's policy would exist only during the time Brian actually owned a vehic le, either the 4Runner or a vehicle acquired consistent with the terms of the policy. Thus, SGI concludes that under the facts of this case, Brian had no insurable interest on the day of Ana's accident and therefore no enforceable insurance policy affording uninsured motorist benefits.
SGI's reasoning is based on the interpretation of section 627.727(1) in Johnson:
Uninsured motor vehicle coverage must be provided in all motor vehicle liability insurance contracts issued in this state, unless the named insured rejects the coverage in writing. Thus, the required UM benefits are an adjunct of the other coverage provided in automobile policies, which is itself dependent on an insurable interest. Consequently, UM benefits are indirectly dependent on the existence of an insurable interest.
Johnson, 472 So.2d at 861 (citations omitted).
On the other hand, Brian asserts that his SGI policy provided for a thirty-day period of automatic coverage following the sale of an insured automobile. Relying on the policy language, Brian claims that a "covered auto," his insurable interest, can include an auto that is acquired during the policy period if the insured requests in writing within thirty days that the vehicle be insured. Brian maintains that he intended to purchase a new vehicle within the policy period, but because of the circumstances of Ana's accident, never had the opportunity. It is unnecessary to address this argument by Brian, because we conclude there is uninsured motorist coverage available on different grounds, as more fully explained below.
In this case, Brian's insurance coverage continued despite the fact that Brian did not purchase a vehicle, because the language of the policy prevented the cessation of coverage until cancellation of the policy. The language of the insurance policy relevant to the issue of whether insurance coverage existed at the time of Ana's accident states:
"Your Covered Auto" means:
1. Any vehicle shown in the Declarations.
2. Any of the following vehicles on the date you become the owner:
a. a private passenger auto; or,
b. a pickup or van that:
(1) has a gross vehicle weight of less than 10,000 lbs; and,
(2) is not used for the commercial delivery or transportation of goods and materials.
This provision (2.) applies only if:
a. you acquire the vehicle during the policy period; and,
b. you request, in writing, within 30 days of the date you become the owner, we insure such vehicle; and,
c. with respect to a pickup or van, no other insurance policy provides coverage for that vehicle; and,
d. we insure all cars you own.
We have already concluded that Brian's policy could not have been cancelled any earlier than November 14. Because Ana's accident occurred prior to that date, it occurred during the policy period. Based on the "Your Covered Auto" provisions of the policy, insurance coverage existed during this time despite the fact that Brian sold his 4Runner on October 12. This is because the provision allows for a vehicle other than the vehicle listed in the policy to become the "covered auto" for purposes of insurance coverage, if that vehicle is purchased during the policy period and SGI is notified of that purchase within thirty days. Simply because no "covered auto" exists under the policy where the vehicle listed in the policy has been sold, and a new one has not yet been purchased or declared to SGI, does not alter the fact that insurance coverage, including any uninsured motorist coverage, remains in existence.
To repeat, the relevant dates in this uninsured motorist coverage case are as follows. On October 12, Brian sold his 4Runner, on October 27, Ana had the accident, and pursuant to the terms of the policy, Brian cancelled the policy effective November 14. Thus, at any time during the policy period, that is, until November 14, Brian could have become the owner of a vehicle and had coverage pursuant to the terms of the policy. Because the language in Brian's policy fails to clearly convey that uninsured motorist coverage is terminated during the period following the sale of the insured vehicle and until such time (within the policy period) that a new vehicle is acquired, the policy provision should be enforced against SGI as the drafter of the insurance policy. See Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla. 2002) (citing Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000)). Another problem with the argument that when Brian owned no car there was no insurable interest, is that it ignores the fact that Brian would need coverage when driving a vehicle owned by someone else.
Therefore, we conclude that the policy in question does not provide for the flipping on and off of a coverage switch. This result is consistent with the Florida Supreme Court's repeated holdings that uninsured motorist coverage follows the insured, not the auto. See Fla. Farm Bureau Cas. Co. v. Hurtado, 587 So.2d 1314, 1318 (Fla. 1991); Coleman v. Fla. Ins. Guar. Ass'n, 517 So.2d 686 (Fla. 1988); Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 233 (Fla. 1971), superseded by statute on other grounds, Carbonell v. Auto. Ins. Co. of Hartford, Conn., 562 So.2d 437 (Fla. 3d DCA 1990) ("Whenever bodily injury is inflicted upon [a] named insured or insured members of his family by the negligence of an uninsured motorist, under whatever conditions, locations, or circumstances, any of such insureds happen to be in at the time, they are covered by uninsured motorist liability insurance."); GEICO v. Douglas, 627 So.2d 102, 103 (Fla. 4th DCA 1993) (citing the three Florida Supreme Court cases). Thus, we conclude that the trial court did not err in denying SGI's motion for summary judgment on the ground that Brian had no insurable interest on the day of Ana's accident.
We next address the question of whether the trial court erred by denying SGI's motion for directed verdict which was based on the argument that even if Brian's SGI policy were in effect at the time of Ana's accident, Brian's uninsured motorist coverage did not cover the accident.
We first turn to the uninsured motorist coverage election form. It is undisputed that in the upper portion of the form, Brian selected boxes both accepting and rejecting uninsured motorist coverage. In the lower portion of the form, Brian selected a box for non-stacked uninsured motorist coverage. SGI contends that the selection of both boxes in the upper portion of the form did not create an ambiguity, but even if it did, there was no contention that there was any ambiguity in selecting non-stacked coverage in the lower portion of the form. On the other hand, Brian asserts that the fact that two boxes were checked in the upper portion (in addition to other alterations) created an ambiguity, and therefore prevented Brian from making an informed and knowing selection of non-stacked uninsured motorist benefits in the lower portion of the form.
Ambiguities in insurance policies are construed in favor of the insured. Roberts, 839 So.2d at 845 (citation omitted). Multiple checks on an uninsured motorist coverage election form are considered ambiguous. Scatigno v. State Farm Mut. Auto. Ins. Co., 425 So.2d 217, 218 (Fla. 2d DCA 1983). Therefore, the jury could have concluded that the fact Brian selected both boxes in the upper portion of the election form created an ambiguity to be resolved in favor of Brian, providing him with uninsured motorist coverage. Furthermore, because Brian failed to make a clear choice accepting or rejecting uninsured motorist coverage, it cannot be said that he made a knowing and informed decision regarding that coverage. See id. at 219. Because Brian did not make a knowing choice as to the upper portion of the form, the jury could have concluded that he could not make a knowing choice of non-stacked insurance coverage in the lower portion of the form. This conclusion emanates from the strong public policy favoring the insured in uninsured motorist coverage cases and requiring that an informed selection of policy limitations be made. See Tres v. Royal Surplus Lines Ins. Co., 705 So.2d 643, 645 (Fla. 3d DCA 1998). This outcome is consistent with the special care that courts are to give to uninsured motorist coverage disputes to protect the insured. See Flores, 819 So.2d at 745.
Additionally, whether Brian's election of nonstacked uninsured motorist coverage in the lower portion of the form is knowing, is also a function of the form itself. Section 627.727(9) does provide that the signature of an insured raises the presumption that a knowing election was made; however, in order for that presumption to operate, the form must be approved by the Florida Department of Insurance. See also Zupan v. Nationwide Mut. Fire Ins. Co., 710 So.2d 594, 595 (Fla. 4th DCA 1998). It is an insurance company's burden to demonstrate that an election form complies with the statutory requirements in order to benefit from the presumption. See Omar v. Allstate Ins. Co., 632 So.2d 214, 216 (Fla. 5th DCA 1994) (discussing insurer's burden to demonstrate informed election to benefit from presumption); Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 708 (Fla. 4th DCA 1997) (discussing insurer's burden of proving that it filed uninsured motorist coverage forms with the Department of Insurance).
"In connection with the offer authorized by this subsection, insurers shall inform the named insured, applicant, or lessee, on a form approved by the department, of the limitations imposed under this subsection and that such coverage is an alternative to coverage without such limitations. If this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations." § 627.727(9), Fla. Stat.
In the case at bar, the insurer, SGI, provided no documentary evidence that the election form signed by Brian had been approved by the Department of Insurance. As a result, SGI cannot benefit from the presumption of informed choice created by his signature. Thus, we also reject SGI's argument that a presumption of informed choice was created by Brian's signature electing non-stacked uninsured motorist coverage.
In sum, on the issue of whether the policy provided uninsured motorist coverage, we conclude that it did. This is because Brian made neither a knowing and informed decision to reject uninsured motorist coverage, nor a knowing and informed decision to elect non-stacking uninsured motorist coverage. Furthermore, SGI did not demonstrate that Brian's signature on the form raised a presumption of informed choice of nonstacked coverage where SGI did not provide documentary evidence that the form was approved by the Department of Insurance.
Now that we have determined that Brian was entitled to uninsured motorist coverage under his SGI policy, we must determine whether that coverage extends to Ana's accident. Brian points out that SGI failed to comply with section 627.727(9) when limiting coverage in a manner recognized by section 627.727(9)(d). See Douglas, 627 So.2d at 103. Subsection (d) provides:
Insurers may offer policies of uninsured motorist coverage containing policy provisions, in language approved by the office, establishing that if the insured accepts this offer:
(d) The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.
Based on the notice requirements of section 627.727(9) previously discussed in this opinion, for any limitation or exclusion to be placed on the uninsured motorist coverage available to an insured, such as that permitted by subsection (d), Department of Insurance approval and disclosure to the insured is required. To conclude otherwise would be to allow insurance companies to provide a limited form of uninsured motorist coverage which is contrary to our public policy preference of unlimited uninsured motorist coverage. See Young v. Progressive Southeastern Ins. Co., 753 So.2d 80, 83 (Fla. 2000); Mullis, 252 So.2d at 233-234.
In the case at bar, Ana is clearly an insured under Brian's SGI policy. SGI relies on policy language and definitions to attempt to create an exclusion described in subsection (d) that would result in Ana being excluded from uninsured motorist coverage. However, because SGI did not (1) obtain approval of the language used in policy provisions, (2) inform Brian of the exclusion on an approved form, or (3) obtain a knowing acceptance of the exclusion, SGI did not succeed in excluding Ana from uninsured motorist coverage. Because Ana is an insured and SGI did not comply with the statutory requirements, Brian could not knowingly consent to limited uninsured motorist coverage excluding Ana.
As we have already determined, SGI's attempt to provide the limited form of non-stacked uninsured motorist coverage to Brian through the use of the election form failed because Brian did not knowingly consent to such a limitation and the form was not properly approved by the Department of Insurance. Likewise, no statement on that form or any approved form explained to Brian that Ana would not have uninsured motorist coverage under the provisions of the policy.
In sum, on the question of whether there is uninsured motorist coverage for Ana's accident, we conclude that she is an insured subject to uninsured motorist coverage under Brian's SGI policy so as to allow the recovery of loss of consortium damages for her accident. Therefore, the trial court did not err by denying SGI's motion for directed verdict on the issue of the existence of uninsured motorist coverage.
We now address the consortium awards that Larusso, Samarel, and Jonior claim are in error. The three appellants raise two issues regarding these awards: (1) whether Braden was entitled to recover loss of consortium damages in regard to his relationship with his mother, Ana and (2) whether the duration and amount of Braden's parental consortium award and Brian's filial consortium award were properly calculated.
We first address the issue of Braden's entitlement to damages for loss of parental consortium. In Florida, children do not have a common law loss of consortium claim for their parents. See Zorzos v. Rosen, 467 So.2d 305, 307 (Fla. 1985). However, Florida established a child's claim for loss of parental consortium through 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.
§ 768.0415, Fla. Stat. (1992).
In this case, the question which we must resolve is whether an unborn, non-viable fetus can be an "unmarried dependent" for purposes of this statute. Marital status is clearly beside the point, leaving the meaning of "dependent" for consideration.
In considering the applicable law, well established principles of statutory analysis guide us in our decision. "When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." McLaughlin v. State, 721 So.2d 1170, 1172 (Fla. 1998). "One of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless words are defined by the statute or by the clear intent of the legislature. If necessary, the plain and ordinary meaning of a word can be ascertained by reference to a dictionary." Green v. State, 604 So.2d 471, 473 (Fla. 1992).
Webster's New Collegiate Dictionary defines the term dependent, when used as a noun, as "one that is dependent, especially a person who relies on another for support." Id. at 302 (1980 ed.). Dependent as an adjective is defined as "relying on another for support." Id. Webster's does not make the status of the individual a determining factor; the core of the definition is "reliance on another for support."
By that definition, a fetus is very nearly the physical embodiment of a dependent. For the time it is in the womb, especially during non-viability, it is completely physically dependent on the mother's body for its survival.
The legislature did not limit "unmarried dependents" to persons already born at the time of injury, and it is not our job to write words into the statute. We note, however, that a fetus does not have this claim until after it is born alive, according to Florida's long-standing "born alive" rule. See Shone v. Bellmore, 78 So. 605, 607 (Fla. 1918).
We also point out that this conclusion is not a novel addition to Florida tort law. Florida allows a child born alive to recover damages for its own injuries occurring when it was a fetus regardless of viability. See Day v. Nationwide Mut. Ins. Co., 328 So.2d 560, 562 (Fla. 2d DCA 1976). A child born alive may also receive compensation for a parent's injury or death under the Workers' Compensation statute. See C.F. Wheeler Co. v. Pullins, 11 So.2d 303, 305 (Fla. 1942). A child born alive may also recover damages under the Wrongful Death Act for a parent killed shortly before the child's birth. See Ellis v. Humana of Fla., Inc., 569 So.2d 827, 829 (Fla. 5th DCA 1990). Therefore, on the first issue raised by Larusso, Samarel, and Jonior, we conclude that the trial court did not err in awarding Braden loss of consortium damages due to the injuries to his mother.
Moving on to the calculation issue, filial consortium damages are limited to the period of the child's minority by common law.See Broward Co. Sch. Bd. v. Cruz, 761 So.2d 388, 396 (Fla. 4th DCA 2000), aff'd, 800 So.2d 213 (Fla. 2001), abrogated on other grounds by, Grenitz v. Tomlian, 858 So.2d 999 (Fla. 2003). The plaintiffs concede this point. Therefore, we reverse and remand Brian's award for loss of filial consortium for remittitur to Braden's years of minority.
Braden's claim for loss of his mother's consortium, however, is not common law, making Cruz inapplicable. Section 768.0415 speaks only to who may bring the claim, not to the extent of damages. The statute specifically includes "damages forpermanent loss of services, comfort, companionship, and society." (Emphasis added). Because the statute does not limit damages, we decline to limit damages to the duration of minority. This would be a task for the legislature rather than for this Court. Therefore, Braden's award should remain as set by the trial court.
The comments to the Florida Standard Jury Instructions in Civil Cases also note that "the duration of future damages for which the child may recover is unclear." Standard Jury Instructions — Civil Case (Nos. 01-1 02-2), 825 So.2d 277, 283 (Fla. 2002).
In sum, we affirm the denial of SGI's motion for summary judgment, SGI's motion for directed verdict, and Braden's parental consortium award. We reverse and remand Brian's filial consortium award for remittitur. We affirm all other issues not addressed in this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR REMITTITUR.
WARNER, J., and HARNAGE, HENRY H., Associate Judge, concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.