The Florida Supreme Court has greatly simplified the procedure where a plaintiff in a personal injury suit dies and a wrongful death cause of action needs to be added to the pending lawsuit.
Previously, there was a potential trap for the unwary, because a personal injury cause of action was merged into a wrongful death claim, but only if the cause of death was proven to be the same as what caused the prior injury. There had been confusion about whether the existing personal injury case would be dismissed as a matter of law, and whether or not the newly appointed personal representative could enter the existing personal injury lawsuit and amend to add the wrongful death cause of action.
In Capone v. Philip Morris, the Florida Supreme Court recently resolved a conflict between two of Florida’s appellate courts by holding that when a party plaintiff in a personal injury action dies, the action does not automatically terminate. Instead, the personal representative of the decedent’s estate may be added to the pending action as a party and, thereafter, shall have a reasonable opportunity to file an amended pleading that alleges new or amended claims and causes of action. A personal representative can pursue both a claim for survival damages and an alternative wrongful death claim where the cause of the decedent’s death may be disputed by the parties.
The Florida Supreme Court gained jurisdiction to hear this case because of a conflict between two of the appellate courts over the interpretation of the Florida Wrongful Death Act (the “Act”). Section 768.20 (2008) of the Act states that:
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 death shall abate.
In the Third District Court of Appeal, the appellate court affirmed the dismissal of Karen Capone’s action by the Florida trial court. Karen’s husband, Frank, died after Frank and Karen filed an action against two tobacco companies. In January 2008, in her capacity as personal representative of Frank’s Florida estate, Karen sought to amend the complaint and to substitute herself as party plaintiff. The defendant tobacco company, Phillip Morris, argued that the Act prohibited the conversion of a personal injury action into a wrongful death action when the injuries to a party plaintiff result in his death. After a drawn-out procedural battle, Karen’s action was dismissed. The Third District Court of Appeal affirmed the dismissal of the action, finding that based upon the Act, the personal injury action filed by the Capones could not be amended after Frank’s death to include a wrongful death claim, and that the action terminated.
The Florida Supreme Court granted review of Capone because it conflicted with a case from the Second District, Niemi v. Brown & Williamson Tobacco Corp., 862 So. 2d 31 (Fla. 2d DCA 2003), in which the Second District Court of Appeal held that a personal injury action can be amended after the death of a party plaintiff to add a wrongful death claim, and that a personal representative of the decedent’s estate may be substituted as a party in the pending action. The Second District Court of Appeal said that because the cause of decedent’s death was not clear from the record, the pleadings did not permit the personal injury action to be terminated under the Act.
The Florida Supreme Court ultimately agreed with the Second District Court of Appeal’s interpretation of the Act. The Florida Supreme Court’s holding turned on the meaning of the word “abate.” “Abate” is not defined in the Act. The Florida Supreme Court focused on the intent of the Act, which is to shift the losses of survivors to the wrongdoer, finding that the Act is to be liberally construed in aid of accomplishing that intent. The Florida Supreme Court reasoned that the purpose of the Act is to prevent the tortfeasor from evading liability for his misconduct when such misconduct results in death, stating:
We conclude that an interpretation of the term “abate” that would create additional technical procedural hurdles through which personal representatives must carefully navigate – or risk having a cause of action dismissed and possibly barred forever – would be inconsistent with the stated purpose of the Act. Further, if the legislative intent behind the Act is to provide survivors with recovery, this goal certainly is not served by interpreting the word “abate” to require the dismissal of a personal injury action – regardless of how far the action has progressed or without regard to whether there may be a valid survivor action – and to compel a personal representative to file a completely new, independent wrongful death action.
In sum, “abate” as used in the Act must be interpreted in a matter that facilitates 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. “Abate” as used in the Act means that a case is suspended until the personal representative of the Florida 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 the cause of decedent’s death may be disputed by the parties.
Accordingly, where a plaintiff in a personal injury suit dies before conclusion of the case, and a wrongful death cause of action needs to be added to the pending lawsuit, once the personal representative is appointed for the plaintiff’s estate, that personal representative substitutes into the pending action and amends the complaint to add the wrongful death cause of action.
