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Kimberly Roden, as Personal Representative v. R.J. Reynolds Tobacco Co., et al., Case No. 4D11-4211 (4th DCA)

In Roden, the Plaintiff appealed an order granting the tobacco companies’ motion to dismiss, arguing that the trial court erred in determining that the complaint could not be amended to add a wrongful death claim. The Fourth DCA agreed with the Plaintiff, and reversed.

The Plaintiff’s decedent filed suit in 2008 as a member of the Engle class. Later in 2008, the original plaintiff died. Months later, the original plaintiff’s daughter filed a motion to substitute party, seeking to substitute herself into the suit as personal representative. The trial court granted the motion to substitute. In August 2011, the tobacco companies moved to dismiss the complaint, arguing that the personal injury claim was extinguished by the original plaintiff’s death, and that Fla. Stat. 768.20 dictated that the personal injury action could not survive the original plaintiff’s death because the personal representative never filed a complaint or an amended complaint seeking a wrongful death claim. The tobacco companies additionally argued that the Plaintiff could not amend the complaint to add a wrongful death claim because the wrongful death claim must be brought as a separate cause of action and the statute of limitations for a wrongful death claim had run. After the trial court granted the tobacco companies’ motion to dismiss, the Plaintiff appealed, raising two issues: (1) whether a wrongful death claim must be brought as a new and separate cause of action when a plaintiff dies during the pendency of a personal injury action; and (2) whether the statute of limitations for wrongful death claims bars the Plaintiff’s ability to amend the complaint. The Fourth DCA answered both questions in the negative.

As to the first question, the Fourth DCA noted that during the pendency of the appeal, the Florida Supreme Court addressed the term “abate” as used in Fla. Stat. 768.20, and stated:

“[W]e hold that when a personal injury action ‘abates’ pursuant to section 768.20, this does not require that the entire case be deemed immediately void and must be dismissed . . . . Instead, ‘abate,’ as that term is used in section 768.20 must be interpreted to cause the case to be suspended until the personal representative of the decedent’s estate is added as a party to the pending action and receives a reasonable opportunity to amend the complaint to state the damages sought under a wrongful death claim or to state both a claim for survival damages and, in the alternative, wrongful death where – as here – the cause of the decedent’s death may be disputed by the parties.”

Thus, the tobacco companies’ argument that the wrongful death complaint must be brought as a separate cause of action has been explicitly rejected.

As to the second issue, the tobacco companies argued that the two year statute of limitations on a wrongful death claim has run prior to the Plaintiff seeking to amend the complaint. The Fourth DCA found that the claim relates back to the filing of the original complaint.

The Fourth DCA relied upon Florida Rule of Civil Procedure 1.190(c), which states that “[w]hen the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” To survive a motion to dismiss after the statute of limitations has passed, an amended complaint must relate back to the original pleading made before the expiration of the statute of limitations. Distinguishing those cases cited by the tobacco companies, the Fourth DCA noted that in Roden, the damages sought in both the personal injury claim and the wrongful death claim were based on the allegation that the initial, and eventual, injuries to the decedent were caused by smoking cigarettes. The Fourth DCA determined that both claims arose out of the same transaction, because both claims arose based on the decedent’s claim of injury due to smoking cigarettes.

The Fourth DCA added that an additional consideration for courts when analyzing whether the relation back doctrine applies is notice to the other party. The Fourth DCA summarily determined there were no surprises in this case, given that the decedent’s death certificate was filed within months of her death.

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