Same-sex spouse blocked from getting $9M tobacco settlement

TALLAHASSEE — A state appeals court said a man could not collect millions of dollars from tobacco companies in the death of his husband because they were not married when a smoking-related illness began in the 1990s — a time when Florida law prevented them from being married.

A panel of the 4th District Court of Appeal on Wednesday rejected a Broward County jury’s decision to award $9 million to Bryan Rintoul in the death of Edward Caprio. That was part of a broader ruling by the panel to reject a $157 million judgment against Philip Morris USA and R.J. Reynolds Tobacco Co. and order a new trial.

Caprio, who started smoking at age 15 and was diagnosed with chronic-obstructive pulmonary disease in 1996, filed the lawsuit in 2007. It was one of thousands of cases known as “Engle progeny” cases against tobacco companies. Plaintiffs in those types of cases must show that illnesses had emerged by November 1996.

Rintoul and Caprio were in a relationship starting in 1982 and were married after same-sex marriage became legal in Florida in 2015, according to Wednesday’s ruling. Caprio, however, died in 2018 with the lawsuit still unresolved.

Ater Caprio’s death, Rintoul sought to add himself as a plaintiff and pursue a wrongful-death claim as a surviving spouse. A circuit judge allowed Rintoul to pursue the claim.

But the appeals-court panel said Florida law blocks the claim because Rintoul and Caprio were not married when the illness manifested — even though they could not be legally married at the time. The ruling said “our jurisprudence provides that if one spouse was injured before marriage, the other spouse has no right to recover damages for loss of consortium pertaining to that injury.”

“In sum, the lower court in this case agreed to let a jury reach back in time and establish a same-sex marriage even though Florida did not recognize then, or now, common law marriage,” said the opinion, fully shared by Judges Spencer Levine and Mark Klingensmith.

Levine, in a concurring opinion, said the Legislature would have to change state law to allow such claims.

“No matter how sympathetic we are to appellee’s (Rintoul’s) argument, we cannot create or effectively ‘legislate’ an exception to well-established law,” Levine wrote. “We cannot judicially ‘backdate’ a marriage to allow appellee to proceed with his claim.”

Levine wrote that legislatures in such states as Delaware, Illinois and Washington have created processes to “backdate” marriages for pre-existing domestic partnerships and civil unions. Other states have “merged” civil unions into marriages, he said.