Garber v. Snetman

¶1The judgment is affirmed on authority of Mizrahi v. North Miami Med. Ctr., Ltd., 712 So.2d 826 (Fla. 3d DCA 1998) (on motion for rehearing), and Stewart v. Price, 704 So.2d 594 (Fla. 1st DCA 1997). We certify the *482same question of great public importance certified in Mizrahi:

Does section 768il(8), Florida Statutes (1995), which is part of Florida’s Wrongful Death Act, violate the Equal Protection Clause of the Florida and federal constitutions, in that it precludes recovery of non-pecuniary damages by a decedent’s adult children where the cause of death was medical malpractice while allowing such children to recover where the death was caused by other forms of negligence?

¶2Mizrahi, slip op. at 2, 712 So.2d at 827.

¶3Affirmed; question certified.

¶4COPE and GREEN, JJ., concur.

¶5specially concurring.

¶6I concur because I am bound to do so by Mizrahi. See In re Rule 9.331, 416 So.2d 1127 (Fla.1982). However, as I have previously indicated, see Diaz v. CCHC-Golden Glades, Ltd., 696 So.2d 1346, 1347 n. 3 (Fla. 3d DCA), review denied, 703 So.2d 475 (Fla.1997), cert. denied, — U.S. ——, 118 S.Ct. 1797, 140 L.Ed.2d 938 (1998), I believe that it is contrary to the requirements of substantive due process1 and equal protection to discriminate between survivors of the victim of a wrongful death on the basis of their age only to accomplish the stated purpose of making medical malpractice insurance somewhat less expensive. To my mind, it is no less “unreasonable, arbitrary, capricious, discriminatory [and] oppressive”, 10 Fla.Jur.2d Constitutional Law § 427, at 740 (1997), and cases cited, to restrict the right to recover on this basis than it would be for the legislature to do so as to survivors with blue eyes or— heaven forfend! — of less than a certain height.