VARIETY CHILDREN'S HOSPITAL, Petitioner, v. Thomas PERKINS, as Personal Representative of the Estate of Anthony Perkins, Respondent, 445 So. 2d 1010

BOYD, Justice. We have for review a decision of a district court of appeal, Perkins v. Variety Children’s Hospital, 413 So.2d 760 (Fla. 3d DCA 1982), which passed upon a question certified to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Thomas Perkins, as personal representative of the estate of his son Anthony Perkins, brought an action to recover for his son’s wrongful death.

The action was based on injuries which had already been the subject of a personal injury action in which the injured minor recovered damages for his injuries and the parents recovered for past and future medical expenses. The defendant raised the affirmative defenses that the cause of action had already been satisfied and that the statute of limitations had run, measured from the time of the original incident. The trial court entered

summary judgment for the defendant. The district court of appeal reversed on the ground that the right to recover for wrongful death is separate and independent from, rather than derivative of, the injured person’s right while living to recover for personal injuries. The court also held that the two-year statute of limitations for wrongful death begins to run at the time of death, not at the time of the original incident, and that the action was therefore timely filed.

The court then certified the following question as one of great public importance: Whether a judgment for personal injuries recovered during life-time of an injured person bars a subsequent wrongful death action by the personal representative of the deceased where death is a result of the same injuries. 413 So.2d at 766. We take the view contrary to that of the district court of appeal and hold that the judgment for personal injuries rendered in favor of the injured party while living barred the subsequent wrongful death action based on the same tortious conduct.

Our holding is based upon the language contained in

section 768.19, Florida Statutes (1981), which provides: When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.

The district court of appeal reasoned that this section, which is part of the Florida Wrongful Death Act, creates an independent cause of action in the statutory beneficiaries which cannot be barred by the decedent’s having obtained a prior judgment for personal injuries.

The district court’s decision is contrary to the prevalent view ascribed to by the courts of other jurisdictions that have similar statutes. “[T]he majority of the courts have held that a judgment for or against the decedent in an action for his injuries commenced during his lifetime, or the compromise and release of such an action, will operate as a bar to any subsequent suit founded upon his death.” W. Prosser, Law of Torts, § 127 (4th ed. 1971) (footnotes omitted).

The general rule is that, if the injured party sues and recovers damages for his fatal injuries during his lifetime, the cause of action is thereby satisfied and, in the absence of fraud, duress, inadvertence or mistake, no right of action for death remains for the benefit of the persons named in the wrongful death statute. This rule is supported by the theory that a cause of action merges into the judgment and, once the judgment is rendered and final, no cause of action exists.

In some cases the rule has been based upon the ascertained legislative intention to provide a remedy where, under the common law, none existed, and not to make the wrongdoer pay twice for one wrong. In other instances, it is based upon an express statutory provision that the right of action for death exists only in cases where the injured party could himself maintain the action if he were living in conjunction with an

interpretation of such provision as requiring, as a condition precedent, the right of decedent to maintain the action at the time of his death. S. Speiser, Recovery for Wrongful Death, § 5:18 (1966) (footnotes omitted). We find these reasons supporting the majority rule to be persuasive. At common law a person's right to sue for personal injuries terminated with his death. This created the anomaly that a tortfeasor who would normally be liable for damages caused by his tortious conduct would not be liable in situations where the damages were so severe as to result in death.

This paradox was remedied by creating an independent cause of action for the decedent’s survivors. It is thus clear that the paramount purpose of the Florida Wrongful Death Act is to prevent a tortfeasor from evading liability for his misconduct when such misconduct results in death. In this case the deceased had already obtained a judgment of $1,000,000 and his parents had recovered $200,000 from the defendant. Hence the defendant has already been held accountable for its tortious conduct.

To allow the estate to relitigate the case to obtain an additional judgment would not further the paramount purpose of the Florida Wrongful Death Act. Instead it would create many additional problems involving “lack of repose, double recovery, discouragement of settlement, the interests of unborn heirs and res judicata." Alfone v. Sarno, 87 N.J. 99, 130, 432 A.2d 857, 873 (1981) (Clifford, J., dissenting). See also Note, Action for Wrongful Death Not Extinguished by Decedent’s Personal Injury Recovery, 12 Seton Hall L.Rev. 371 (1982).

At the moment of his death the injured minor Anthony Perkins had no right of action against the tortfeasor because his cause of action had already been litigated, proved and satisfied. The recovery awarded by the judgment in the previous personal injury action included damages arising from future expenses. Since there was no right of action existing at the time of death, under the statute no wrongful death cause of action survived the decedent. See Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934); Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894); Warren v.

Cohen, 363 So.2d 129 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 462 (Fla.1979). We therefore quash the decision of the district court of appeal and remand with instructions that the trial court’s judgment be affirmed. It is so ordered. ALDERMAN, C.J., and OVERTON and McDONALD, JJ., concur. EHRLICH, J., concurs in result only with an opinion, with which OVERTON, J., concurs. ADKINS, J., dissents with an opinion.