Roden v. R.J. Reynolds Tobacco Co.

• Decision Date: 13 August 2014
• Docket Number: No. 4D11–4211.,4D11–4211.
• Citation: 145 So.3d 183
• Parties: Kimberly RODEN, as Personal Representative, for the Estate of Loretta Roden, deceased, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, individually and as successor my merger to Brown & Williamson Tobacco Corporation (a/k/a Brown & Williamson USA, Inc.), individually and as successor by merger to The American Tobacco Company (f/k/a The American Tobacco Company Inc.), a foreign corporation; Lorillard Tobacco Company, a foreign corporation; Lorillard, Inc., a foreign corporation; Altria Group, Inc., a foreign corporation and Philip Morris, U.S.A., Inc., (f/k/a Philip Morris Inc.), a foreign corporation; Vector Group Ltd, Inc., (f/k/a Brooke Group Ltd., Inc., f/k/a Brooke Group Holding Inc.), and holding company for Liggett Group, LLC, individually and successor by merger to the Liggett Group Inc., (f/k/a Liggett & Myers Tobacco Company), a foreign corporation; Liggett Group, LLC., a foreign corporation; The Counsil for Tobacco Research U.S.A., a foreign corporation; The Tobacco Institute, Inc., a foreign corporation and John Doe Corporation, unknown at this time, Appellees.
• Court: Florida District Court of Appeals

145 So.3d 183

Kimberly RODEN, as Personal Representative, for the Estate of Loretta Roden, deceased, Appellant,

v.R.J. REYNOLDS TOBACCO COMPANY, individually and as successor my merger to Brown & Williamson Tobacco Corporation (a/k/a Brown & Williamson USA, Inc.), individually and as successor by merger to The American Tobacco Company (f/k/a The American Tobacco Company Inc.), a foreign corporation; Lorillard Tobacco Company, a foreign corporation; Lorillard, Inc., a foreign corporation; Altria Group, Inc., a foreign corporation and Philip Morris, U.S.A., Inc., (f/k/a Philip Morris Inc.), a foreign corporation; Vector Group Ltd, Inc., (f/k/a Brooke Group Ltd., Inc., f/k/a Brooke Group Holding Inc.), and holding company for Liggett Group, LLC, individually and successor by merger to the Liggett Group Inc., (f/k/a Liggett & Myers Tobacco Company), a foreign corporation; Liggett Group, LLC., a foreign corporation; The Counsil for Tobacco Research U.S.A., a foreign corporation; The Tobacco Institute, Inc., a foreign corporation and John Doe Corporation, unknown at this time, Appellees.

No. 4D11–4211.

District Court of Appeal of Florida, Fourth District.

Aug. 13, 2014.

Chanthina Abney of Gary, Williams, Lewis & Watson, P.L., Stuart, for appellant.

Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C., for appellee Philip Morris USA Inc.

Charles R.A. Morse of Jones Day, New York, New York, for appellee R.J. Reynolds Tobacco Company.

Elliot Scherker, David L. Ross, Julissa Rodriguez and Stephanie L. Varela of Greenberg Taurig, P.A., Miami, for appellee Lorillard Tobacco Company.

Karen H. Curtis of Clarke Silvergate, P.A., Miami, Co–Counsel for appellee Liggett Group LLC.

PER CURIAM.

Kimberly Roden appeals the trial court's order granting the tobacco companies' motion to dismiss. Roden argues that the trial court erred in determining that the complaint could not be amended to add a wrongful death claim. We agree.

In January 2008, the original plaintiff, Loretta Roden (“Loretta”), filed a complaint against the tobacco companies as a member of the Engle¹ class. Loretta alleged that she suffered injuries caused by smoking cigarettes and the actions of the tobacco companies.

In May 2008, during the pendency of the case, Loretta died. Her death certificate listed the causes of death as cardiac arrest, myocardial infarction, and coronary artery disease. On September 29, 2008, Loretta's daughter, Roden, filed a motion for substitution of party, seeking to substitute herself into the suit as Loretta's personal representative. In January 2009, the trial court signed an order granting Roden's motion to substitute.

In August 2011, the tobacco companies filed a motion to dismiss the complaint. In the motion to dismiss, the tobacco company argued that “the personal injury claim was extinguished by [Loretta]'s death”, and therefore the complaint should be dismissed, and cited to Niemi v. Brown & Williamson Tobacco Corp., 862 So.2d 31 (Fla. 2d DCA 2003), and Taylor v. Orlando Clinic, 555 So.2d 876 (Fla. 5th DCA 1989). The tobacco companies also cited to section 768.20, Florida Statutes (2013), arguing that the statute dictated that the personal injury action could not survive Loretta's death, and since Roden never filed a complaint or an amended complaint seeking a wrongful death claim, the action had “abated” and the complaint must be dismissed. The tobacco companies also argued that Roden could not be granted leave to amend the complaint to add a wrongful death claim because the wrongful death action had to be filed as a separate cause of action and that the statute of limitations for a wrongful death claim ² had already run.

After the tobacco companies filed the motion to dismiss, Roden sought leave to file an amended complaint which included a wrongful death claim. Roden stated that she had not promptly filed a wrongful death claim because she erroneously thought that a complaint, which included a wrongful death claim, had been filed by her prior attorney. The tobacco companies filed an opposition to this motion, along with a motion to dismiss the amended complaint.³

In October 2011, after a hearing on the issues, the trial court judge entered an order granting the tobacco companies' motion to dismiss. The order stated “that Defendant's Motion to Dismiss is Granted based on FS 768.20 and Capone v. Philip Morris, 56 So.3d 34 (Fla. 3d DCA 2011)[sic] and Niemi v. Brown & Williamson, 862 So.2d 31 (Fla. 2d DCA 2003).” Roden appeals this order, 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 Roden's ability to amend the complaint in the instant case. We answer both in the negative.

I.Wrongful Death as a Separate Cause of Action

The first issue is whether a personal injury claim can be amended to add a wrongful death cause of action when a personal injury plaintiff dies during the pendency of the case. “Whether a personal injury complaint can be amended upon the death of an injured party plaintiff to add a wrongful death claim or to substitute parties is a pure question of law. Therefore, our standard of review is de novo.” Capone v. Philip Morris U.S.A., Inc. (Capone II), 116 So.3d 363, 373 (Fla.2013) (citing Universal Ins. Co. of N. Am. v. Warfel, 82 So.3d 47, 57 (Fla.2012)). In its order granting the tobacco companies' motion to dismiss, the trial court judge specifically cited to section 768.20, Capone v. Philip Morris (Capone I), 56 So.3d 34 (Fla. 3d DCA 2011), and Niemi v. Brown & Williamson, 862 So.2d 31 (Fla. 2d DCA 2003). During the pendency of this appeal, the Florida Supreme Court reviewed Capone I and reversed the Third District's holding. Capone II, 116 So.3d at 377.

The main issue our supreme court analyzed in Capone II was whether the term “abate” as used in section 768.20 means that a personal injury claim, upon the death of the plaintiff, is completely extinguished. Capone II, 116 So.3d at 376. The Court 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.Id. at 376–77 (internal citation omitted). The tobacco companies' argument, with which the trial court agreed, that a wrongful death complaint must be brought as a separate cause of action, was explicitly rejected by our supreme court. Without the benefit of Capone II, it was thus error for the trial court to grant the tobacco companies' motion to dismiss based on Capone I, which has been overturned.

II.Statute of Limitations and the Relation Back Doctrine

The tobacco companies also argue that their motion to dismiss was properly granted because the two year statute of limitations period on a wrongful death claim had run prior to Roden seeking to amend the complaint. Roden however, argues that the wrongful death claim relates back to the filing of the complaint and is therefore not time-barred. We agree that the claim relates back.

Florida Rule of Civil Procedure 1.190(c) 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.” Fla. R. Civ. P. 1.190(c) (emphasis added). “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.” Flores v. Riscomp Indus., Inc., 35 So.3d 146, 147 (Fla. 3d DCA 2010). A determination whether an amended complaint arises out of the same general facts and thus relates back is reviewed de novo. Id. at 147–48.

The tobacco companies cite to Cox v. Seaboard Coast Line R.R. Co., 360 So.2d 8 (Fla. 2d DCA 1978), in support of their argument that the wrongful death claim should not relate back. In Cox, a minor and his parents were involved in a train-car collision. 360 So.2d at 9. The minor brought a wrongful death action for the death of his mother, recovered, and then brought a separate wrongful death suit for the death of his father. Id. After the two-year statute of limitations period for a personal injury action had run, the minor sought to amend the wrongful death complaint for his father's death to add a personal injury claim for his own injuries. Id. The Second District affirmed the trial court's order denying the minor leave to amend his complaint. Id. at 10. The court held that, although the rules regarding motions for leave to amend are generally construed liberally, the “[m]inor's personal injury action [wa]s a different cause of action than his wrongful death cause of action.” Id. at 9–10. Therefore, the relation back doctrine did not apply because the doctrine “does not authorize a plaintiff, under the guise of an amendment, to state a new and different cause of action.” Id. at 9.

The tobacco companies also cite to School Board of Broward County, Florida v. Surette, 394 So.2d 147 (Fla. 4th DCA 1981), as authority. In Surette, the parents of a minor, who was killed when she was hit by an automobile, filed a wrongful death action, and then later amended the complaint to add a survival claim. 394 So.2d at 149. However, since the survival action was added...