Thursday, January 14, 2010

Florida Supreme Court To Consider Presumption Of Legitimacy In Wrongful Death Actions

The Florida Supreme Court accepted jurisdiction in Jonathan Greenfield, M.D. v. Dorothea Daniels, et al (SC09-1675) and Tenet St. Mary’s, Inc. v. Dorothea Daniels (SC09-16765).  The court's order accepting jurisdiction and consolidating the two cases can be viewed HERE.  The Fourth District's decision under review can be viewed HERE

The petitioner's brief on jurisdication in case 1675 can be viewed HERE and the respondent's brief on jurisdiction can be viewed HERE.  The petitioner's jurisdiction brief in case 1676 HERE and the respondent's brief HERE

The Fourth District's decision under review stated:
The personal representative of the estate of Shea Daniels appeals a summary judgment which determined that Daniels’s son, Javon Daniels, was not a survivor under the Wrongful Death Act, because at the time of Javon’s birth, his mother was married to another man, although the mother had not seen her husband for several years. We hold that under the unique circumstances of this case, the court erred in determining as a matter of law that the child is not a survivor in accordance with the wrongful death statute. We reverse.
The personal representative argues that the trial court erred in refusing to allow her to prove that the decedent was Javon’s father, because resolution of paternity may occur in a wrongful death case. The appellees contend that the trial court correctly granted summary judgment because the child was born during the mother’s marriage to another man who, by operation of law, was the legal father of the child and his parental rights had not been legally divested. We hold that the presumption is not a conclusive presumption and the issue of survivorship is to be determined in the wrongful death proceeding.


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