Advertising Disclosure Email Disclosure

A Spouse Who Married a Decedent After Injury Could Recover as a “Surviving Spouse,” Says Fifth DCA, in Conflict With Fourth DCA

September 4, 2018

Defense Digest, Vol. 24, No. 3, September 2018

By Joey M. Chindamo, Esq.*

Key Points:

  • The term “surviving spouse” in the Wrongful Death Act is determined on the date of the other spouse’s death, not on the date of injury.
  • The Fifth DCA certified express and direct conflict with the Fourth DCA.
  • Reversed and remanded for new trial on liability and damages due to plaintiff’s counsel’s improper closing argument.


A man suffers serious injuries in a motor vehicle accident. After the crash, he marries his girlfriend, but he dies several months later. Can his post-injury wife recover damages as a “surviving spouse” under the Wrongful Death Act? The Fifth District Court of Appeal recently answered that question in the affirmative, certifying express and direct conflict with the Fourth District Court of Appeal in doing so.

Domino’s Pizza, LLC v. Wiederhold, 2018 Fla. App. LEXIS 6598 (Fla. 5th DCA May 11, 2018), arose from a January 2011 motor vehicle accident. Richard Wiederhold swerved to avoid Jeffrey Kidd, who was delivering pizza for a Domino’s franchisee. Wiederhold’s vehicle rolled several times, rendering him a quadriplegic. After filing a lawsuit against Domino’s, the franchisee and Mr. Kidd, Wiederhold married his girlfriend, Yvonne Wiederhold. Months later, Richard died. Yvonne, as personal representative of Richard’s estate, was substituted as the plaintiff. Her amended complaint included a claim for wrongful death damages as Richard’s “surviving spouse.” After settling separately with the franchisee before trial, Yvonne proceeded to trial against Domino’s and Mr. Kidd, who represented himself pro se.

The trial court denied Domino’s motions for summary judgment, which argued that Yvonne was not a “surviving spouse” under the Wrongful Death Act because she was not married to Richard at the time of his injuries. Ultimately, the jury returned its verdict against Domino’s in excess of $10 million. In its renewed motion for directed verdict, judgment notwithstanding the verdict or alternative motion for a new trial, Domino’s renewed its earlier arguments and additionally sought a new trial on the basis of improper comments made by plaintiff’s counsel during closing argument. The trial court denied Domino’s motions and entered a final judgment against Domino’s. An appeal to the Fifth DCA followed.

The Fifth DCA first tackled the question of whether wrongful death actions accrue from the date of a decedent’s death or a decedent’s injury by determining the scope of the term “surviving spouse.” The court noted that statutory interpretation begins with the language of the statute itself, and a statute must be given its plain and obvious meaning if the statutory language is clear and unambiguous. The court analyzed § 768.21, Fla. Stat. (2012), and did not find that the term was unclear or ambiguous. It held that the term “‘surviving spouse’ is necessarily determined on the date of the other spouse’s death because one cannot be a survivor before that date.” The court found support for this interpretation from other Fifth DCA opinions and the Florida Supreme Court’s decision in Love v. Hannah, 72 So.2d 39 (Fla. 1954).

However, the Domino’s opinion noted its express and direct conflict with the opinion of its sister court in Kelly v. Georgia-Pacific, LLC, 211 So.3d 340 (Fla. 4th DCA 2017). In Kelly, the Fourth DCA reached the opposite conclusion regarding the scope of the term “surviving spouse.” The Kelly court held:

The plain language of the Wrongful Death Act indicates that the legislature did not intend for a surviving spouse to recover consortium damages if the surviving spouse was not married to the decedent prior to the date of the decedent’s injury. The definition of “survivor” in the statute is limited to familial relationships only, and both subsections (1) and (2) of section 768.21 clearly provide that damages are recoverable from the date of “injury.” §§ 768.18(1), 768.21(1)-(2), Fla. Stat. (2015). Thus, the plain language of the statute indicates that the legislature anticipated that the surviving spouse would have been married to the decedent prior to the date of injury.

Kelly, 211 So.3d at 345.

The Fifth DCA distinguished its interpretation by stating that, “[i]f, as posited by the Kelly majority, survivorship is determined at the time of injury, then children born or adopted by the decedent after the date of injury would not be considered survivors. Likewise, a spouse who divorces a decedent after the date of injury would be considered a survivor. This would be contrary to established precedent, which holds that such determinations are made at the time of the decedent’s death.” The Fifth DCA also cited out-of-state opinions from Georgia, Louisiana, New York, Ohio, and Pennsylvania that interpreted similar statutory language and similarly found that the plain statutory language permitted such claims. Accordingly, the Fifth DCA affirmed the trial court’s ruling allowing Mrs. Wiederhold to recover as a surviving spouse.

However, the Fifth DCA reversed and remanded for a new jury trial on liability and damages due to multiple improper comments made by plaintiff’s counsel during closing argument. Domino’s objected to some, but not all, of the alleged improper comments. Therefore, the Fifth DCA assessed the entire closing argument to evaluate the cumulative effect of both the preserved and unpreserved error. Plaintiff counsel’s multiple denigrations of Domino’s case as a “greedy charade” were determined to be improper as disparaging, arguing facts not in evidence, and as an improper “send-a-message” argument. Plaintiff counsel’s also impermissibly suggested that a specific amount of requested damages would withstand post-trial scrutiny when he requested $10 million, but “[n]o more than that because it might not be able to be upheld in post-trial motions.” These violations, as well as improper golden rule (suggesting the jury place itself in the plaintiff’s position) and personal opinion arguments, led the Fifth DCA to conclude that the plaintiff’s closing argument “was not designed to prompt a logical analysis of the evidence in light of the applicable law,” and the cumulative effect of the preserved and unpreserved error was not harmless.

On the issue of who is a “surviving spouse,” Domino’s stands as precedent in the Fifth DCA. It remains to be seen at this time whether the Florida Supreme Court will resolve the conflict between the Fourth and Fifth DCAs.

*Joey is an associate in our Orlando, Florida office. He can reached at 407.505.4680 or



Defense Digest, Vol. 24, No. 3, September 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact


Affiliated Attorney

Joey M. Chindamo
(407) 505-4680


Practice Areas

Before you send this email please note:

You are attempting to send email, through a link on our website, to an attorney of Marshall Dennehey Warner Coleman & Goggin or an employee in our firm. Please note that your email may not be treated as confidential and does not create an attorney-client relationship. You should not rely upon the transmission of an email through this website if you are seeking to enter into such a relationship. Until such time as we have agreed to represent you, no information in your email will be treated as confidential. Please contact us directly by telephone at 1.800.220.3308 if it is your intent to seek legal counsel with our firm or convey confidential information.

If it is still your intent to send this email, knowing that it may not be treated as confidential, you may accept our terms of agreement by pressing "OK". If you choose not to accept these terms of agreement you may navigate away from this page by pressing "Cancel."