Gomez v. R.J. Reynolds Tobacco Co.

• Decision Date: 25 January 2023
• Docket Number: 3D21-622
• Parties: George Gomez, Silvia Pohl, and Joy Gomez, Appellants, v. R.J. Reynolds Tobacco Co., and Philip Morris USA Inc., et al., Appellees.
• Court: Florida District Court of Appeals

George Gomez, Silvia Pohl, and Joy Gomez, Appellants, v. R.J. Reynolds Tobacco Co., and Philip Morris USA Inc., et al., Appellees.

No. 3D21-622

Florida Court of Appeals, Third District

January 25, 2023

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 08-109 Valerie R. Manno Schurr, Judge.

Hicks Porter, Ebenfeld & Stein, P.A., and Mark Hicks and Dinah S. Stein, for appellants.

King & Spalding LLP, and William L. Durham II (Atlanta, GA) for appellee R.J. Reynolds Tobacco Company; Arnold &amp Porter Kaye Scholer LLP, and Geoffrey J. Michael (Washington DC); Shook, Hardy & Bacon L.L.P, and Frank Cruz-Alvarez and J. Daniel Gardner, for appellee Philip Morris USA Inc.; Easley Appellate Practice, PLLC, and Dorothy F. Easley, for appellee Reka Gomez, Individually as Survivor.

Before LOGUE, LINDSEY, and LOBREE, JJ.

LOGUE J.

In the action below, the personal representative of the estate of the decedent filed a cause of action for wrongful death against various tobacco companies ("Tobacco Defendants"). On behalf of the estate, the personal representative sought damages for herself as the surviving spouse and, in the alternative, for the decedent's adult children. On the Tobacco Defendants' motion, the trial court dismissed the personal representative's claim for damages for the adult children. Although not parties, the adult children filed this appeal in their own capacity (not by way of the personal representative). Given the unique nature of Florida's statutory wrongful death statute, we dismiss the appeal as one from a non-final, non-appealable order because the personal representative's wrongful death action for liability and for alternative damages remains pending below.

STATEMENT OF THE FACTS

This appeal arises from an Engle-progeny tobacco case involving the death of Ramon Gomez. Reka Gomez was the wife of the decedent at the time he died. She was appointed as the personal representative of the estate and she filed the complaint below. In the complaint at issue, Reka, as the personal representative, sought non-economic (pain and suffering) damages for herself as the surviving spouse and, in the alternative, for George Gomez, Silvia Pohl, and Joy Gomez as the decedent's adult children from a prior marriage (collectively, the "Gomez children").

The Tobacco Defendants moved to dismiss the estate's claim for damages for the Gomez children on the basis that Reka was a surviving spouse. Under the wrongful death statute, the adult children can recover only if there is no surviving spouse. §768.21 (3), Fla. Stat. A finding that the estate can recover Reka's damages would therefore foreclose the estate from recovering the Gomez children's damages. The parties dispute whether Reka Gomez qualifies as the surviving spouse under the statute because she was not married to the decedent at the time the injury occurred.^[1] Thus, although Reka Gomez is the personal representative, the interests of Reka Gomez in her individual capacity are adverse to the interests of the Gomez children.

For this reason, although the Gomez children were never parties to the wrongful death suit, the trial court allowed the Gomez children to appear by counsel on the motion to dismiss the estate's claim for damages for the Gomez children. The Court ultimately granted the motion to dismiss. The Gomez children timely appealed and, alternatively, petitioned for certiorari.

ANALYSIS

The Appellee Tobacco Defendants moved to dismiss this appeal on the basis that the trial court's order dismissing the estate's claim for damages for the Gomez children is an interlocutory order because the estate's claim against the Tobacco Defendants for liability and for damages for Reka, the surviving spouse, remain pending below. The Gomez children respond that the order constitutes a partial final judgment under Florida Rule of Appellate Procedure 9.110(k).

Rule 9.110(k) defines a partial final judgment as one that either "disposes of an entire case as to any party" or "disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims." The Gomez children contend the trial court's order constitutes a partial final judgment disposing of an entire case as to a party, namely the Gomez children, because the order completely dismisses them from the case. The problem with this argument is that, while a decedent's survivors are certainly the real parties in interest to a wrongful death suit, they are not entitled to join the wrongful death action as parties. § 768.20, Fla. Stat.

The statutory framework of the Wrongful Death Act unambiguously provides that a decedent's personal representative is the party that "shall" bring the action and "shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death." § 768.20, Fla. Stat. "By statute," the Supreme Court has observed, "the personal representative is the only party with the standing to bring a wrongful death action to recover damages for the benefit of the decedent's survivors and the estate. The survivors may not bring separate legal actions." Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So.3d 1187, 1191 (Fla. 2011) (citations omitted). See also Cont'l Nat. Bank v. Brill, 636 So.2d 782, 784 (Fla. 3d DCA 1994) ("Under the Wrongful Death Act, the personal representative is the party who seeks recovery of all damages caused by the injury resulting in death for the benefit of the decedent's survivors and for the estate. The personal representative must bring a single action to recover damages for all beneficiaries.") (citations omitted).

Under this statutory framework, for example, a surviving spouse of a decedent could not have costs taxed against her personally because she was not properly a party to a wrongful death action. See Puig v. Saga Corp., 543 So.2d 238, 239 (Fla. 3d DCA 1989). See also Benjamin v. Tandem Healthcare, Inc., 93 So.3d 1076, 1083-84 (Fla. 4th DCA 2012) (holding that, for purposes of application of the sequestration rule, the only party in a wrongful death action was the personal representative of the estate and trial court did not abuse its discretion in excluding other surviving children of the decedent because they were not parties to the action); Kadlecik v. Haim, 79 So.3d 892, 893 (Fla. 5th DCA 2012) (holding that attorneys' fees awarded against an estate cannot be recovered from funds collected for the benefit of a survivor because "survivors are not parties to the wrongful death litigation, even when the claims are brought for their benefit").

As the Florida Supreme Court explained, the Wrongful Death Act created an independent cause of action which "is a purely statutory right." Toombs v. Alamo Rent-A-Car, Inc., 833 So.2d 109, 111 (Fla. 2002). We are not free to alter or supplement the statutory scheme dictating who shall bring a cause of action for wrongful death and thereby be considered a "party." Rather, "our job is to faithfully apply the law as written." Coates v. R.J. Reynolds Tobacco Co., No. SC21-175, 2023 WL 106899, at *5 (Fla. Jan. 5, 2023) (citing and quoting State v. Rife, 789 So.2d 288, 292 (Fla. 2001) ("[I]t is not this Court's function to substitute its judgment for that of the Legislature as to the wisdom or policy of a particular statute.")). Cf. R.R. v. New Life Community Church of CMA, Inc., 303 So.3d 916, 921-23 (Fla. 2020) (holding that the statutory framework in chapter 95 left "no room for supplemental common law accrual rules" and, "given the comprehensive statutory framework governing accrual, to supply omissions transcends the judicial function," explaining that "[w]hen a statute purports to provide a comprehensive treatment of the issue it addresses, judicial lawmaking is implicitly excluded" (internal quotations and citations omitted)). To do so would "defeat the legislative purpose in the adoption of section 768.20." Morgan v. Am. Bankers Life Assur. Co. of Fla., 605 So.2d 104, 105 (Fla. 3d DCA 1992).

Here, the only named plaintiff in the underlying action is Reka Gomez as the personal representative of the Estate of Ramon Gomez. The Gomez children are not themselves parties to the underlying wrongful death action, even if claims are brought for their benefit. The trial court's order dismissing the estate's claims for the Gomez children's damages, therefore, does not constitute a partial final judgment disposing of an entire case as to any party because the cause of action of the only party - the personal representative on behalf of the estate - remains pending below.

The order on appeal reflects the dismissal of some, but not all of the personal representative's claims on behalf of individual survivors. In this sense, this matter is substantially similar to our decision in Morgan, 605 So.2d 104. In Morgan, a personal representative appealed a trial court's order striking the estate's claim for the damages of the father as an individual survivor because the decedent was survived by a wife. Id. We dismissed the appeal because "a survivor's claim is not any different from the dismissal of any other claim brought by a party and [ ] unless it constitutes a separate and severable controversy, it will not support a plenary appeal." Id. at 104-05. There, it was clear that the estate's claim for damages for the father was dependent upon and interrelated with the estate's claim for damages for the other survivors pending in the trial court insofar as it related to liability. The dismissal of the estate's claim for the father's damages was a dismissal of only a part of the estate's entire claim for damages. Id. at 105. We concluded...