By: Jimmy McLaughlin
In what could become the next landmark case for gay rights, on November 15, 2019, Bryan Rintoul became the first gay spouse to successfully challenge a legal rule in personal injury law called the “marriage before injury rule” that disproportionately and negatively affects gay spouses.[1]A Broward County jury awarded Mr. Rintoul with $9 million while smacking Big Tobacco with $148 million in punitive damages.[2]The unique facts in the case bring to light how many state laws continue to have a discriminatory effect on gay spouses even after Obergefell v. Hodges.
Bryan Rintoul’s deceased husband, Edward Caprio, had started smoking cigarettes when he was a teenager during an era when Big Tobacco had withheld studies from the American public regarding the harmful and addictive nature of cigarettes.[3]After Mr. Caprio was diagnosed with chronic obstructive pulmonary disease (COPD) necessitating around-the-clock oxygen in 1996, he filed a lawsuit against R.J. Reynolds Tobacco Co., Philip Morris USA Inc., Lorillard Tobacco Co., and Ligget Group Inc.[4]While the case was pending, in 2015, Florida’s prohibition against gay-marriage was struck down as unconstitutional.[5]Caprio and Rintoul married immediately after to formalize their loving relationship of 30-plus years.[6]Unfortunately, shortly after their formal marriage, in early 2018, Caprio passed away.[7]To continue his husband’s lawsuit against the tobacco companies, Mr. Rintoul filed a derivative loss of consortium claim under the Florida Wrongful Death Act.[8]The tobacco companies tried to dismiss Mr. Rintoul’s loss of consortium claim, arguing Mr. Rintoul was legally required to be married prior to his husband’s 1996 COPD diagnosis.[9]
Under Florida law and the law many other states, the “marriage before injury rule” requires a spouse to be married to the plaintiff at the time of the tort injury to recover damages for pain and suffering (called “loss of consortium damages”).[10]The rule was originally created by judges to prevent fraudulent legal claims by spouses who marry knowing their significant other had accrued a lucrative legal claim.[11]Mr.Rintoul’s loss of consortium claim would have been barred by an arbitrary application of the “marriage before injury rule.”[12]However, in July of 2018, Mr. Rintoul’s attorneys argued in front of Broward County Circuit Court that the application of the “marriage before injury rule” to Mr. Rintoul and other LGBT spouses violated the Equal Protection and Due Process clause of both the federal and Florida Constitution.[13]Judge David A. Haimes agreed and applied a broad reading of Windsorand Obergefell to address the disparate impact of the rule on LGBT spouses while allowing Rintoul to argue in front of the jury that he would have been married at the time of his husband’s COPD diagnosis if it were not for Florida’s unconstitutional ban on gay-marriage.[14]The tobacco companies plan on appealing the decision to the Fourth District Court of Appeal.[15]
The Fourth District will have the opportunity to revisit a number of prior decisions that have a discriminatory application to LGBT spouses. One area of controversy is whether the state legislation of the Florida Wrongful Death Act, which extends a personal injury lawsuit to allow surviving spouses to bring claims, also includes the “marriage before injury rule.”[16]Florida’s Fourth and Fifth District Court of Appeals reached different decisions on this question, creating a circuit split.[17]The Fourth District where Mr. Rintoul resides extends the “marriage before injury rule” to claims made under the Florida Wrongful Death Act while the Fifth District does not.[18]The Fourth District’s decision regarding the Florida Wrongful Death Act has had significant implications for gay spouses residing in the Fourth District because they are forced to make a constitutional challenge whereas LGBT spouses residing in the Fifth District face no such obstacle to bringing their loss of consortium claim as surviving spouse.
Broward County Circuit Court, hamstrung by the Fourth District’s prior ruling on the Florida Wrongful Death Act, took a creative approach in Mr. Rintoul’s case on the constitutional challenge, but does it accord with U.S. Supreme Court precedent? Prior precedent by the United States Supreme Court does not allow disparate impact as a cognizable claim under the Equal Protection clause of the Constitution.[19]Some scholars have argued for a different approach, urging courts to apply Obergefellretroactively rather than using the Equal Protection clause of the Fourteenth Amendment.[20]If the Fourth District considers this alternative approach this could provide a uniform solution for future courts while avoiding more abstract arguments of Equal Protection and Due Process that have shakier caselaw.
The Fourth District may also have to reexamine its rigid application of the statute of limitations for loss of consortium claims–another area where the Fourth District differs from other Florida districts.[21]Florida’s statute of limitations requires personal injury claims to be filed within four years of the injury.[22]However, a Florida rule of civil procedure called “relation back” provides an exception that allows a court discretion to allow a late-added claim to have the filing date of the first claim if the late-added claim is sufficiently similar to the first claim.[23]The “relation back” exception is typically applied by Florida courts when the timely claim and the late-filed claim have enough common facts that the defendant was “on notice” for the late-filed claim and the addition would not “unfairly prejudice” the defendant.[24]Mr. Rintoul’s loss of consortium claim as a derivative claim shares many facts in common with his husband’s original, timely filed personal injury claim. The tobacco companies were also aware that spouses had explicit rights to bring derivative claims under the Florida Wrongful Death Act when their loved one dies, making this an interesting case to liberally use the “relation back” exception. The Fourth District, however, has closed the door on this argument by holding in a prior decision that the exception cannot be used for a spouse’s late filed loss of consortium claim.[25]The unique facts in this case may force the Fourth District to reconsider. It would be incredibly unfair to impose the statute of limitations on gay spouses who never had the opportunity to bring a loss of consortium claim until they could legally marry.
*Jimmy McLaughlin was a law clerk for Judge Haimes in summer of 2018 when oral argument occurred. As a third-year law student at the University of Miami and a member of the Race and Social Justice Law Review, he has closely followed the case and is finalizing a casenote titled “Back To the Future: Why Courts Must Travel Back In Time To Provide Spouses of LGBT Plaintiffs Equal Protection.”
[1]Rafael Olmeda, A jury just awarded a gay Florida man $157 million from tobacco companies. Here’s why it could be a landmark case, Sun Sentinel, Nov. 19, 2019, at A1.
[2]Id.
[3]Caprio v. R.J. Reynolds Tobacco Co., No. 78387447 (Fla. Cir. Ct. 2018) (order granting motion for leave to amend complaint).
[4]Id.
[5]Id.
[6]Id.
[7]Id.
[8]Id.
[9]Id.
[10]Tremblay v. Carter, 390 So.2d 816, 817 (Fla. 2d DCA 1980).
[11]See id.
[12]Caprio, No. 78387447 at *4.
[13]Id.
[14]See id.
[15]Olmeda, supra note 1.
[16]Compare Kelly v. Georgia Pacific, L.L.C., 211 So.3d 340, 347 (Fla. 4th DCA 2017) with Domino’s Pizza, Inc. v. Wiederhold, 248 So.3d 212, 219 (Fla. 5th DCA 2018) (“We certify express and direct conflict with Kellyon this issue.”).
[17]Id.
[18]Id.
[19]See Washington v. Davis, 426 U.S. 229, 239 (1976); see alsoMass. v. Feeney, 442 U.S. 256, 277-79 (1979).
[20]SeeLee-Ford Tritt, Moving Forward By Looking Back: The Retroactive Application of Obergefell, 2016 WISC. L. REV. 873, 875 (2016).
[21]Compare Philips Morris USA v. McCall, 234 So.3d 4, 7 n.4 (Fla. 4th DCA 2018) with Kopel v. Kopel, 229 So.3d 812, 815 (Fla. 2017).
[22]FLA. STAT. § 95.11 (3) (2019).
[23]See Kopel v. Kopel, 229 So.3d 812, 815 (Fla. 2017); see alsoCliff v. Payco General American Credits, Inc., 363 F.3d 1113, 1119 (11th Cir. 2004).
[24]See id.
[25]SeePhilips Morris USA v. McCall, 234 So.3d 4, 7 n.4 (Fla. 4th DCA 2018).
