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 filed a personal injury complaint for asbestos-related injuries. Five days later, Lance Ruble died as a result of asbestos-related mesothelioma. Joan Ruble then filed a motion to amend the complaint to allege a cause of action for wrongful death. The Rinker defendants opposed the motion, arguing that it is improper for Ms. Ruble to attempt to convert the personal injury action into a claim for wrongful death. The trial court agreed, finding that since Mr. Ruble’s claim was one for personal injuries and those injuries ultimately caused his death, the Wrongful Death Act requires Mrs. Ruble to file a new complaint to allege wrongful death. 

The Supreme Court of Florida accepted jurisdiction of both cases and Oral Argument was held on June 5, 2012.  The questions posed by Justices Quince, Pariente and Lewis focused on whether the legislature intended to require a personal representative to file a new action once the personal injury action was abated. Counsel for each side agreed that the term “abate” means “extinguish” and that the personal injury claims are extinguished upon the death of a plaintiff.  However, the parties disagreed as to the proper procedure for asserting the wrongful death allegations. Advocates for the plaintiffs in both cases argued that the legislative intent was not to extinguish the entire lawsuit, but rather to extinguish the personal injury claims. They cited to a series of cases where the parties stipulated to substituting the proper party and to an amendment of the pleadings to reflect the wrongful death allegations. Counsel for Philip Morris and Rinker argued that the statute clearly dictates the procedural vehicle for asserting a wrongful death claim and there is generally no prejudice to the plaintiff if they timely file the new lawsuit. 

Justice Pariente was the most vocal of the Justices, repeatedly questioning the policy reasons for requiring a personal representative to file a new lawsuit and expressing doubt that such a procedure serves the ever-present goal of judicial efficiency. Justice Lewis also explored the statute of limitations issue, questioning both the plaintiff’s failure to take advantage of the available option of filing a new suit and the fairness of the harsh result reached in the Capone case. The Justices also considered lengthy arguments from both sides in the Ruble case regarding the Court’s jurisdiction. The parties disagree about whether Ruble timely served a Motion for Reconsideration, which then gave rise to her appeal to the Third District. Counsel for Rinker argued that the motion was not timely served and that Court does not have jurisdiction over the matter. This issue was not addressed in the Third District’s order affirming the trial court’s decision to dismiss the case.

The Florida Supreme Court has not yet issued an opinion in either case. The Court’s decision will provide a bright line rule regarding the procedure for asserting wrongful death allegations when a plaintiff dies. If the Court affirms the Third District decisions, a personal representative for an estate will have to pursue the wrongful death claim in a separately filed action. Should the Court reverse the Third District, personal representatives will be permitted to substitute themselves as the plaintiff and amend the complaint to include wrongful death