FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Janet C. Thorpe,
S. Stein and Mark Hicks, of Hicks, Porter, Ebenfeld &
Stein, P.A., Miami, and Richard S. Womble and Christine V.
Zharova, of Rissman, Barrett, Hurt, Donahue & McLain,
P.A., Orlando, for Appellant/Cross Appellee.
S. Mills and Courtney Brewer, of The Mills Firm, P.A.,
Tallahassee, for Appellee/Cross Appellant.
Pizza, LLC,  appeals a final judgment entered in favor
of Yvonne Wiederhold, as personal representative of the
estate of Richard E. Wiederhold. Domino's argues that the
trial court should have granted directed verdicts on Mrs.
Wiederhold's claim as a surviving spouse under the
Wrongful Death Act, sections 768.16-.26, Florida Statutes
(2012) (the "Act"), because she was not married to
Mr. Wiederhold at the time of his injury; and that as a
matter of law, it was not vicariously liable for the actions
of its franchisee, Fischler Enterprises of C.F., Inc.,
because it did not control Fischler's day-today
operations. Domino's also seeks a new trial based on Mrs.
Wiederhold's improper closing arguments, which it claims
denigrated its defense, referenced facts not in evidence,
mischaracterized the law, and expressed counsel's
personal beliefs or evoked the "golden rule." Mrs.
Wiederhold cross-appeals, arguing that the trial court erred
by denying her request for an award of Mr. Wiederhold's
medical expenses paid by Medicare and insurance.
reasons set forth below, we affirm the denial of the directed
verdicts on the issues of Mrs. Wiederhold's status as a
"surviving spouse" and on Domino's vicarious
liability. However, we reverse and remand for a new trial on
liability and damages based on Mrs. Wiederhold's improper
closing argument. We also find merit in Mrs.
Wiederhold's cross-appeal claim. On retrial, all medical
expenses paid by or on Mr. Wiederhold's behalf should be
considered by the jury.
and Procedural Background
January 2011, Richard Wiederhold swerved into the median to
avoid a vehicle that had pulled out in front of him. His
vehicle drifted through the median and back across the
roadway, flipped over once or twice, and came to rest in a
ditch. The collision immediately rendered him a quadriplegic.
The other vehicle was driven by Jeffrey Kidd, who was
delivering pizza for Domino's franchisee, Fischler. One
month after the accident, Mr. Wiederhold sued Domino's,
Fischler, and Mr. Kidd, claiming that Mr. Kidd negligently
caused his injuries and that Fischler and Domino's were
vicariously liable. Several months later, Mr. Wiederhold
married his girlfriend, who was an uninjured passenger in the
accident. In March 2012, Mr. Wiederhold died, and his
now-wife, Mrs. Wiederhold, as personal representative of his
estate, was substituted as the plaintiff. She then filed an
amended complaint to include a claim for wrongful death
damages as Mr. Wiederhold's surviving spouse. In June
2013, Fischler was dismissed from the lawsuit after it
settled with Mrs. Wiederhold for $1 million. That same month,
the trial court allowed the attorneys representing Fischler
and Mr. Kidd to withdraw from representing Mr. Kidd due to
alleged irreconcilable differences. Mr. Kidd represented
himself from that point forward, including at trial.
to trial, Domino's filed several motions for summary
judgment, which argued, among other things, that Mrs.
Wiederhold was not a surviving spouse under the Act because
the Wiederholds were not married at the time of the injury,
it was not vicariously liable because it did not exercise
control over Fischler's day-to-day operations, and all
but one claim for medical and hospital expenses were barred
because no claims had been filed in Mr. Wiederhold's
probate proceeding. The court denied Domino's motions
that challenged Mrs. Wiederhold's status as a surviving
spouse under the Act and Domino's vicarious liability.
However, the trial court granted Domino's motion that
Mrs. Wiederhold could only recover $1165.67 for medical
expenses that were claimed in the probate proceedings. At the
jury trial, Domino's renewed its motion for summary
judgment on the vicarious liability issue and moved for
directed verdict on the surviving spouse issue. The court
denied both motions.
the jury rendered a verdict against Domino's, finding
that: (1) Fischler was an agent of Domino's at the time
of the crash; (2) Mr. Kidd's negligence was ninety
percent of the legal cause of Mr. Wiederhold's injury and
death; (3) total expenses incurred for home renovations to
accommodate Mr. Wiederhold's injuries were $114,
and (4) Mrs. Wiederhold's damages for "loss of her
husband's companionship and protection and for her mental
pain and suffering as a result of [Mr. Wiederhold's]
injury and death" totaled $10 million.
filed a timely renewed motion for directed verdict, judgment
notwithstanding the verdict, or alternative motion for new
trial or new trial on damages, renewing its earlier
arguments, and additionally arguing that certain objected-to
and unobjected-to comments made by Mrs. Wiederhold's
counsel in closing argument warranted a new trial.
Specifically, Domino's sought a new trial based on Mrs.
Wiederhold's closing arguments, many of which were
related to her theme that Domino's business model and its
defense of this case was a "greedy charade"
designed to control the activities of its franchisees to
maximize profits, while contending that it lacked sufficient
control of its franchisee's activities to avoid vicarious
liability. The trial court denied Domino's motions and
entered a final judgment against Domino's for ninety
percent of the verdict amount, less the $1 million setoff for
the Fischler settlement, for a total judgment of $8, 103, 194
in favor of Mrs. Wiederhold and the estate. This appeal and
Is Mrs. Wiederhold a Statutory Survivor?
first argues that one's status as a survivor is
determined on the date of injury, and thus, we must reverse
the wrongful death award to Mrs. Wiederhold because she is
not a survivor under the Act.
a matter of statutory construction subject to de novo review.
Citizens Prop. Ins. Corp. v. Perdido Sun Condo.
Ass'n, 164 So.3d 663, 666 (Fla. 2015). "The
starting point of statutory interpretation is the language of
the statute itself." Herrin v. City of Deltona,
121 So.3d 1094, 1097 (Fla. 5th DCA 2013) (citing GTC,
Inc. v. Edgar, 967 So.2d 781, 785 (Fla. 2007)). "If
statutory language is clear and unambiguous, 'there is no
occasion for resorting to the rules of statutory
interpretation and construction; the statute must be given
its plain and obvious meaning.'" Id.
(quoting A. R. Douglass, Inc. v. McRainey, 137 So.
157, 159 (Fla. 1931)). "However, if a statutory
provision is ambiguous, courts may employ rules of
construction and extrinsic aids to discern legislative
intent." Id. (citing Holly v. Auld,
450 So.2d 217, 219 (Fla. 1984)).
wrongful death action must "be brought by the
decedent's personal representative, who shall recover for
the benefit of the decedent's survivors and estate all
damages, as specified in this act, caused by the injury
resulting in death." § 768.20, Fla. Stat. (2012).
The Act defines "survivors" as "the
decedent's spouse, children, parents, and, when partly or
wholly dependent on the decedent for support or services, any
blood relatives and adoptive brothers and sisters."
Id. § 768.18(1). Where the legislature has
defined a term, courts are bound to follow that definition.
Streeter v. Sullivan, 509 So.2d 268, 272
(Fla. 1987). Section 768.21 specifies the types of damages
that may be awarded to "each survivor" and
additional types of damages for certain survivors, including
a "surviving spouse." It states, in pertinent part:
All potential beneficiaries of a recovery for wrongful death,
including the decedent's estate, shall be identified in
the complaint, and their relationships to the decedent shall
be alleged. Damages may be awarded as follows:
(1) Each survivor may recover the value of
lost support and services from the date of the
decedent's injury to her or his death, with
interest, and future loss of support and services
from the date of death
and reduced to present value. In evaluating loss of support
and services, the survivor's relationship to the
decedent, the amount of the decedent's probable net
income available for distribution to the particular survivor,
and the replacement value of the decedent's services to
the survivor may be considered. In computing the duration of
future losses, the joint life expectancies of the survivor
and the decedent and the period of minority, in the case of
healthy minor children, may be considered.
(2) The surviving spouse may also recover
for loss of the decedent's companionship and protection
and for mental pain and suffering from the date of
. . . .
(5) Medical or funeral expenses due to the decedent's
injury or death may be recovered by a
survivor who has paid them.
§ 768.21(1), (2), (5), Fla. Stat. (2012) (emphasis
added). However, while the statute defines
who survivors are, it does not answer the
question presented in this case of when
their status as a survivor is determined.
the Act does not specify whether a "surviving
spouse" must be married at the time of injury or the
time of death, that alone does not render the term unclear or
ambiguous if the common and ordinary meaning leads to clear
and unambiguous results. Univ. of Fla. Bd of Trs v
Andrew, 961 So.2d 375, 376 (Fla 1st DCA 2007); see
State v Nichols, 892 So.2d 1221, 1227 (Fla 1st DCA
2005) (holding failure of statute to define term does not
necessarily render statute ambiguous) The common and ordinary
meaning of the term "survivor" is "esp a
person remaining alive after an event in which others have
died" Survivor, The Oxford American College Dictionary
(2002 ed) Black's Law Dictionary defines
"survivor" even more succinctly as "[o]ne who
outlives another" Survivor, Black's Law Dictionary
(9th ed 2009) By extension, the common and ordinary meaning
of a "surviving spouse" is a married person who
outlives his or her husband or wife Consequently, applying
the plain meaning of these terms, we conclude 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 Accord King v Font Corp,
612 So.2d 662, 664 (Fla 2d DCA 1993) ("[I]t seems clear
that the definition of 'survivors' in section 76818,
Florida Statutes (Supp 1990), determines survivorship at the
moment of the wrongful death"); see Snyder v Alamo
Rent-A-Car, Inc, 790 So.2d 1262, 1262 (Fla 5th DCA 2001)
(Sharp, J, concurring specially) (noting that this
Court's affirmance was based on King); Thomas D. Sawaya,
6 Fla. Prac, Personal Injury & Wrongful Death Actions
§ 20:1 (2017-18 ed.) ("The definition of survivor
in this statute determines survivorship at the time of the
decedent's death." (citing King, 612 So.2d at 664)).
conclusion is consistent with cases recognizing that wrongful
death actions accrue on the date of the decedent's death.
See, e.g., Love v. Hannah, 72 So.2d 39, 41 (Fla.
1954) ("The plaintiffs' right of action under the
wrongful death statute must be determined by the facts
existing at the time of the death of decedent.");
Phlieger v. Nissan Motor Co., 487 So.2d 1096, 1098
(Fla. 5th DCA 1986) (reiterating that supreme court held, in
Love, that plaintiff's right of action under wrongful
death statute must be determined by facts existing at time of
decedent's death); Bruce v. Byer, 423 So.2d 413,
414-15 (Fla. 5th DCA 1982) ("The general rule is that a
cause of action for wrongful death accrues upon the date of
the decedent's death.").
recognize that our conclusion conflicts with Kelly v.
Georgia-Pacific, LLC, 211 So.3d 340 (Fla. 4th DCA),
review denied, No. SC17-714 (Fla. Oct. 23, 2017). In Kelly,
the majority concluded that
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.
Id. at 345.
agree that although the definition of "survivors"
is limited to familial relationships, nothing in that
definition limits those terms to familial relationships
existing at the time of
injury. As the Kelly dissent observed, "The
statute defines 'survivors' as including 'the
decedent's spouse' without any other
limitation." Id. at 348 (Taylor, J.,
dissenting). Thus, "[i]t would be inappropriate for this
Court to read any more into [the statutory definition] than
what is plainly there." Streeter, 509 So.2d at
272. "Even where a court is convinced that the
legislature really meant and intended something not expressed
in the phraseology of the act, it will not deem itself
authorized to depart from the plain meaning of the language
which is free from ambiguity." Forsythe v. Longboat
Key Beach Erosion Control Dist., 604 So.2d 452, 454
(Fla. 1992) (quoting Van Pelt v. Hilliard, 78 So.
693, 694 (Fla. 1918)).
if, 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
holding that such determinations are made at the time of the
decedent's death. See, e.g., Powell v. Gessner,
231 So.2d 50, 51 (Fla. 4th DCA) ("[T]he status of a
child in respect to its right to sue for the wrongful death
of a parent is determined at the time of the death of the
parent."), opinion adopted, 238 So.2d 101 (Fla. 1970).
It also would be contrary to the legislative intent expressed
in section 768.17, Florida Statutes (2012), which states,
"It 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. Sections
768.16-768.26 are remedial and shall be liberally
construed." See also Wagner, Vaughan, McLaughlin &
Brennan, PA v. Kennedy Law Grp., 64 So.3d 1187, 1191
(Fla. 2011) (noting that Act is "designed to substitute
the financial resources of the wrongdoer for the resources of
the decedent, in an attempt to meet the financial obligations
of the decedent, . . . and to prevent a tortfeasor from
evading liability for his or her misconduct when such
misconduct results in death").
Kelly majority's reliance on the Act's damage
provisions to limit the definition of survivors is
unconvincing. It concluded that the phrase "from the
date of injury, " repeatedly used in the damages
section, "indicates that the legislature anticipated
that the surviving spouse would have been married to the
decedent prior to the date of injury." 211 So.3d at 345.
While it is appropriate to read all sections of the Act
together to determine the meaning of its terms, see, e.g.,
BellSouth Telecommunications, Inc. v. Meeks, 863
So.2d 287, 290 (Fla. 2003) ("To ascertain the meaning of
a specific statutory section, the section should be read in
the context of its surrounding sections."), we agree
with the Kelly dissent that the damages provisions do not
limit who may recover, but rather, only
limits what a survivor may recover. See
Kelly, 211 So.3d at 349 (Taylor, J., dissenting). In fact,
the legislature's frequent differentiation between the
"date of injury" and the "date of death"
in section 768.21 demonstrates its awareness that these may
be two different dates in a given case. Given this
recognition, it is illogical to conclude that the legislature
would not also have recognized that a decedent's legal
relationships and obligations may change between the date of
injury and date of death. Yet, the Kelly majority's
conclusion limits such relationships and obligations to those
present on the date of injury. If the legislature intended to
limit survivors to those existing on the date of injury, it
could have done so. Cf § 440.16, Fla. Stat. (2014)
("Relationship to the deceased giving right to
compensation under the provisions of this section must have
existed at the time of the accident, save only in the case of
afterborn children of the deceased.").
such a limitation is read into the statute based on the
damages language, it would, at best, create an ambiguity as
to whether survivors are determined on the date of injury or
the date of death. And, as we have already noted, the
legislature has instructed that the Act is to be liberally
construed to achieve its purposes. Cf Ellis v. Humana of
Fla., Inc.,569 So.2d 827, 829 (Fla. 5th DCA 1990)
(construing Act liberally to hold that "a posthumous
child is a ...