Amendment of Complaint Upon Death of a Plaintiff

Published October 2013
By Ted Babbitt

Capone v Philip Morris USA, Inc., 38 Fla. L. Weekly S402 (Fla. June 13, 2013) was a tobacco litigation case which was the progeny of Engle v Ligget Group Inc., 945 So. 2d 1245 (Fla. 2006). An action for personal injury was brought by a plaintiff and his wife and the plaintiff died during the pendency of the litigation. The wife was appointed as personal representative and sought to amend the complaint to allege, alternatively, a wrongful death claim based upon the same allegations as the original suit and the survival action for the pain and suffering of the decedent prior to his death. The wrongful death claim asserted that the defendants’ negligence caused the decedent’s death while the survival claim, alternatively, pled that if the defendants showed that the decedent’s death was caused by an unrelated condition or act, then the survival action allowed a claim for pain and suffering allegedly caused by the defendants’ actions and which the decedent suffered until he died from the unrelated cause.
The Circuit Court relied upon the Wrongful Death Statute § 768.20, Florida Statutes (2008) which holds:

“When 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 such death shall abate.”

The Circuit Court held that the word abate was essentially the same as terminate and that the original personal injury action could not be amended to claim wrongful death but that a new and independent lawsuit had to be filed.

The Third District Court of Appeals in Capone v. Philip Morris, 56 So. 3d 34 (Fla. 3rd DCA 2010) affirmed the Circuit Court concluding the above-quoted statute precluded an amendment of the original complaint.

The Supreme Court took jurisdiction based upon a direct conflict with the Third District case and the case of Niemi v. Brown & Williamson Tobacco Corp., 862 So. 2d 31 (Fla. 2d DCA 2003) in which the Second District held exactly the opposite.

The Supreme Court reversed the Third District and approved the opinion in Niemi. The Supreme Court relied, in part, upon the interplay between the Wrongful Death Act as quoted above and § 46.021 Florida Statutes (2008) commonly known as the survival action statute which holds “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.”

The Supreme Court in trying to determine what the legislature intended in utilizing the word “abated” in the Wrongful Death Act held that the meaning of that word should be determined by the purpose behind the Wrongful Death Act. That purpose, the Court held, was “to prevent a tort feasor from avoiding liability for his misconduct when such misconduct results in death.” The Court concluded that to require a personal representative to abandon a personal injury action that may have been pending for years and to file a new wrongful death action would be putting form before substance and require unnecessary litigation, costs and delay. At Page 407, the Court held:

To give effect to the intent of the Act, we conclude that the word “abate” in section 768.20 must be
interpreted in a manner that facilitates – not complicates or convolutes – the initiation and
progression of a wrongful death action on behalf of a decedent’s survivors when the
injured party plaintiff in a personal injury action dies.

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. (emphasis in original)

The Court held for the first time that upon the death of a party plaintiff in a personal injury action, the personal representative of the estate of the decedent can be added to the action already pending and can, alternatively, claim a wrongful death claim and a survival claim.


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