Niemi v. BROWN & WILLIAMSON TOBACCO CORPORATION

• Decision Date: 24 September 2003
• Docket Number: No. 2D03-2600.,2D03-2600.
• Citation: 862 So.2d 31
• Parties: Lena M. NIEMI, individually, and Lena M. Niemi And Michele D. Mata, as Co-Personal Representatives of the Estate of Peter V. Niemi, Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to The American Tobacco Company, a foreign corporation; and R.J. Reynolds Tobacco Corporation, a foreign corporation, Appellees.
• Court: Florida District Court of Appeals

862 So.2d 31

Lena M. NIEMI, individually, and Lena M. Niemi And Michele D. Mata, as Co-Personal Representatives of the Estate of Peter V. Niemi, Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to The American Tobacco Company, a foreign corporation; and R.J. Reynolds Tobacco Corporation, a foreign corporation, Appellees.

No. 2D03-2600.

District Court of Appeal of Florida, Second District.

September 24, 2003.

Howard M. Acosta of the Law Offices of Howard M. Acosta, St. Petersburg; Bruce H. Denson and Kent G. Whittemore of Whittemore, Denson, P.A., St. Petersburg; and Charles P. Schropp of Schropp, Buell & Elligett, P.A., Tampa, for Appellants.

Benjamin H. Hill, III; Troy A. Fuhrman; Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa; and Stephanie E. Parker and John F. Yarber of Jones Day, Atlanta, GA, for Appellee R.J. Reynolds Tobacco Company.

William A. Gillen, Jr., of Gray, Harris, Tampa, for Appellee Brown & Williamson Tobacco Corporation.

ALTENBERND, Chief Judge.

This appellate proceeding involves a very unusual procedural problem. Although it is arguable that the order on appeal is a final order, we conclude that certiorari review provides the simplest solution.

Peter V. Niemi and his wife, Lena M. Niemi, filed a lawsuit against Brown and Williamson Tobacco Corporation and R.J. Reynolds Tobacco Company alleging that Mr. Niemi had sustained bodily injuries as a result of smoking cigarettes manufactured and distributed by the defendants. Mrs. Niemi sought consortium damages. On October 27, 2002, while the case was pending prior to trial, Mr. Niemi died. The cause of his death is not established in the record. In January 2003, Lena M. Niemi and Michele D. Mata filed a motion in the circuit court alleging that they had been appointed co-personal representatives of Mr. Niemi's estate and asking the court to substitute them as plaintiffs in the action in place of Mr. Niemi. The trial court denied this motion, apparently concluding that the action had automatically abated at the time of Mr. Niemi's death. The trial court did not dismiss the action, which may still be pending on Mrs. Niemi's consortium claim. Compare Taylor v. Orlando Clinic, 555 So.2d 876 (Fla. 5th DCA 1989) (holding consortium claim survives husband's death), with ACandS, Inc. v. Redd, 703 So.2d 492 (Fla. 3d DCA 1997) (holding consortium claim is derivative and, like spouse's claim, abates with spouse's death).

Lena M. Niemi and "Peter V. Niemi" filed a timely notice of appeal from this ruling. The defendants moved to dismiss the appeal, arguing that no final order had yet been entered dismissing Mr. Niemi's action or the consortium claim and that Mr. Niemi was dead and thus not able to appeal the order denying the motion to substitute parties. This court asked the parties to address whether mandamus might be an appropriate method to review the trial court's order.

As a threshold matter, Peter V. Niemi cannot be a party to this appellate proceeding because he is dead. Florida Rule of Appellate Procedure 9.360(c) permits this court to substitute parties when necessary. Accordingly, we have substituted Lena M. Niemi and Michele D. Mata, as co-personal representatives of the estate of Peter V. Niemi, as the proper parties to this appeal.

Next, we conclude that the transition from life to death for a personal injury action is not as simple as the defendants wish it to be. It is true that under the common law, actions for personal wrongs and personal injuries die with the person. See Taylor, 555 So.2d at 878. However, section 46.021, Florida Statutes (2002), has long overridden the common law. Section 46.021 states: "No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law."

Death creates a complexity for pending personal injury actions because section 768.20, Florida Statutes (2002), provides that "[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate." Thus, when death is the result of a personal injury, the law of Florida essentially substitutes a statutory wrongful death action for the personal injury action that would otherwise survive under section 46.021.

"Abatement" is a common-law term with various definitions. It is often used to signify that an action has been extinguished or ended. See generally 1 Am. Jur.2d Abatement, Survival and Revival § 1 (1994). We will not attempt a precise definition of "abate" for purposes of section 768.20. As a matter of legal theory, "abatement" may bring a pending action to an end or extinguish it, but this theoretical event does not automatically terminate a lawsuit, which is represented by a physical file in the courthouse. A pending lawsuit does not simply self-destruct like the secret message on a rerun of "Mission Impossible." In some fashion, it must be dismissed by court order. Moreover, pursuant to section 768.20, a personal injury action only "abates" if it is first determined that the personal injury resulted in the plaintiff's death. Such a determination may be established by the pleadings or by the finder of fact. No such determination has been made by the circuit court in this case. It is not uncommon for a plaintiff in a lawsuit to be uncertain whether the alleged personal injury resulted in death. For example, an older person who suffers an...