Capone v. Philip Morris USA. Inc

• Decision Date: 01 December 2010
• Docket Number: No. 3D09-3331,No. 05-10312,3D09-3331,05-10312
• Parties: Karen Capone, individually, and as Personal Representative of the Estate of Frank Capone, Appellants, v. Philip Morris U.S.A. Inc., Appellee.
• Court: Florida District Court of Appeals

Karen Capone, individually, and as Personal Representative of the Estate of Frank Capone, Appellants,

v.Philip Morris U.S.A. Inc., Appellee.

No. 3D09-3331

No. 05-10312

Third District Court of Appeals

July Term, A.D. 2010

Opinion filed December 1, 2010.

An Appeal from the Circuit Court for Miami-Dade, Ellen L. Leesfield, Judge.

J. Michael Fitzgerald (Virginia), for appellants.

Carlton Fields and Geoffrey Michael, Gary L. Sasso and Joseph Hagedorn Lang, Jr., (Tampa), for appellee.

BEFORE SUAREZ, ROTHENBERG, and SALTER, JJ.

SUAREZ, J.

Karen Capone appeals from an order denying her motion for relief from judgment, motion to correct a scrivener's error, and verified motion to vacateand/or reconsider. We affirm, as Karen Capone is precluded from filing a wrongful death action because the appropriate statute of limitations has run.

In 2005, Karen Capone and her husband Frank filed a complaint against Philip Morris and other cigarette manufacturers, alleging that Frank had sustained certain personal injuries as a result of smoking the Defendants' cigarettes. Specifically, the complaint contained counts for negligence, strict liability, conspiracy to commit fraudulent misrepresentation and conspiracy to commit fraudulent concealment. Frank died in July 2006.¹ On January 14, 2008, Karen Capone moved to amend the complaint to assert what she claimed was a new cause of action for injured smokers created by the Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), and moved to substitute herself as the estate's personal representative. On February 19, 2008, Philip Morris Co. filed a motion to dismiss claiming that the personal injury action was abated when Mr. Capone died and that any action for wrongful death had to be filed as a new lawsuit pursuant to Section 768.20, Florida Statutes (2008). On June 10, 2008, Capone noticed her motions for a September 2, 2008 hearing. On September 2, 2008, nine months after Capone had filed her Motion to Amend and eight months after Philip Morris filed its Motion to Dismiss and two months after the two-yearanniversary of Mr. Capone's death, Plaintiff's motions were brought for hearing. On September 16, 2008, the trial court denied the Motion to Amend and Motion to Substitute and dismissed the case as "barred by the Wrongful Death Act." Capone then filed her Motion for Reconsideration of Final Dismissal Order.

The problem that now arose was that the motion's certificate of service to opposing counsel was not dated or signed but was, in fact, in blank. Additionally, Capone could not point to anything to show that the motion was served within the ten-day time period specified by Florida Rule of Civil Procedure 1.530(b). At the hearing, this problem was raised and discussed but the trial court did not rule on it. The trial court subsequently vacated the dismissal and allowed the amended complaint to proceed, and Philip Morris timely filed its Motion to Vacate. A successor judge heard the motion and correctly determined that, in fact, the record did not show that Capone's Motion to Reconsider was timely filed. The trial court vacated the prior order and dismissed the complaint.

The statute of limitations for a wrongful death action is two years from the date of death. § 95.11(4)(d), Fla. Stat. (2008). Frank Capone died on July 19, 2006. On January 9, 2008, within two years of Mr. Capone's death, Karen Capone filed a motion to amend the personal injury complaint to include a new cause of action for wrongful death rather than filing a separate suit as required under the Wrongful Death Act, section 768.19, Florida Statutes (2008). By thetime the September 2008 hearing on Capone's Motion to Amend took place, however, the statute of limitations for filing a separate statutory wrongful death action had run.

The original complaint for personal injury could not be amended, on Frank's death, to include a new wrongful death claim because Florida law establishes that a personal injury claim is extinguished upon the death of the plaintiff, and any surviving claim must be brought as a new and separate wrongful death action-it cannot be brought as an amendment to a personal injury action.² See § 768.20 ("[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"); Martin v. United Security Servs., Inc. 311 So. 2d 765, 770 (Fla. 1975) (upholding section 768.20, and explaining that, "a separate lawsuit for deathresulting personal injuries cannot be brought as a survival action"); AC & S, Inc. v. Redd. 703 So. 2d 492, 494 (Fla. 3d DCA 1997) (plaintiff's personal injury action is extinguished and abated even when the plaintiff's death occurs during the trial of his/her case); Niemi, 862 So. 2d at 31 (holding that, 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).

Karen Capone argues that her wrongful death claim was not barred by the wrongful death statute of limitations in section 95.11 (4)(d)...