Florida Supreme Court To Decide Appropriate Procedure For Litigating Wrongful Death Claims That Arise During Pendency of Personal Injury Action

Two recent opinions from the Third District Court of Appeals cast doubt as to the appropriateness of amending a lawsuit upon the plaintiff's death. In both cases, the Third District held that Florida's Wrongful Death Act extinguishes a personal injury action and survivors must file a new lawsuit asserting the wrongful death allegations.

In Capone v. Philip Morris U.S.A., Inc., 56 So. 3d 34 (Fla. 3d DCA 2010), the Third District considered whether it was proper for the trial court to deny Capone's motion to amend her complaint to assert a claim under Florida's Wrongful Death Act. Frank and Karen Capone filed suit against Philip Morris in 2005, alleging Mr. Capone sustained personal injuries as a result of smoking the defendant's cigarettes. Mr. Capone's injuries ultimately led to his death in July 2006. In 2008, Capone moved to amend her complaint to assert a new cause of action for injured smokers made available to litigants as a result of the decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). Capone also moved to substitute herself as the personal representative of her husband's estate as the proper party plaintiff. Philip Morris moved to dismiss, arguing that the personal injury action abated upon Mr. Capone's death and that Capone's wrongful death suit had to be filed separately.

Philip Morris relied upon a provision within Florida's Wrongful Death Act, Section 768.20, Florida Statutes. This statute provides in pertinent part that "[w]hen a personal injury to the decedent results in death, no action for personal injury shall survive and any such action pending at the time of death shall abate." The trial court agreed with Philip Morris and dismissed the personal injury case. The court's ruling served to permanently extinguish Ms. Capone's claims against Philip Morris, since at the time of the ruling the statute of limitations for the wrongful death claim had expired. Upholding the trial court's decision, the Third District explained, "[t]he trial court correctly dismissed the amended complaint because Frank Capone's personal injury claim had abated upon his death and Karen Capone was required to file a separate wrongful death claim, which she did not do prior to the expiration of the two-year statute of limitation for that cause of action."

The Third District affirmed a similar trial court decision in Ruble v. Rinker Material Corporation, 59 So. 3d 137 (Fla. 3d DCA 2011). On August 11, 2008, Lance and Joan Ruble...