Capone v. Philip Morris USA, Inc.
2013 WL 2631180, 38 Fla. L. Weekly Supp. 402, 116 So. 3d 363 (2013)
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Rule of Law:
Under the Florida Wrongful Death Act, section 768.20, the term 'abate' signifies that a pending personal injury action is suspended upon the plaintiff's death from the alleged injury, not automatically terminated. The decedent's personal representative may be substituted as a party into the existing action and amend the complaint to add a wrongful death claim.
Facts:
- In 2005, Frank and Karen Capone filed a lawsuit against Philip Morris and other tobacco manufacturers.
- The Capones alleged that Frank Capone's use of the defendants' tobacco products caused him to suffer numerous physical injuries, including lung cancer, chronic obstructive pulmonary disease, and cardiovascular injuries.
- Karen Capone asserted a derivative claim for loss of consortium.
- On July 18, 2006, while the personal injury lawsuit was pending, Frank Capone died.
- Following his death, Karen Capone was appointed the personal representative of Frank Capone's estate.
Procedural Posture:
- Frank and Karen Capone sued Philip Morris and others in Florida circuit court (trial court) for personal injuries.
- After Frank Capone's death, Karen Capone, as personal representative, moved to substitute herself as plaintiff and amend the complaint to add a wrongful death claim.
- The circuit court initially denied Capone's motions and dismissed the entire action on September 16, 2008.
- Upon Capone's motion for reconsideration, the circuit court vacated the dismissal on May 8, 2009.
- On Philip Morris's motion, a different circuit court judge vacated the prior order and again dismissed the action on September 2, 2009.
- The circuit court denied Capone's subsequent motions for rehearing and relief from judgment on November 4, 2009, rendering the dismissal final.
- Karen Capone (appellant) appealed the dismissal to the Florida Third District Court of Appeal.
- The Third District Court of Appeal affirmed the trial court's dismissal, holding that a wrongful death claim must be brought as a new action.
- Karen Capone (petitioner) sought review from the Supreme Court of Florida, arguing the Third District's decision expressly and directly conflicted with a decision from the Second District.
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Issue:
Does the Florida Wrongful Death Act's provision that a personal injury action 'shall abate' upon the plaintiff's death require the dismissal of the pending action and the filing of a new, separate wrongful death action?
Opinions:
Majority - Lewis, J.
No, the Florida Wrongful Death Act's provision that a personal injury action 'shall abate' does not require dismissal of the pending action, but rather its suspension. The legislative intent behind the Act, which is remedial and must be liberally construed, is to shift losses from survivors to wrongdoers, not to create procedural hurdles. Interpreting 'abate' to mean suspension allows the personal representative to be substituted into the existing case and amend the complaint to add a wrongful death claim, which promotes judicial efficiency and serves the Act's purpose. This approach is consistent with Florida's rules of civil procedure regarding amendments and the addition of parties, and it allows for pleading survival and wrongful death claims in the alternative when the cause of death is disputed.
Dissenting - Canady, J.
The court lacks jurisdiction and should dismiss the case. There is no express and direct conflict between the decision under review, Capone, and the asserted conflict case, Niemi. The Niemi decision turned on the fact that the cause of the plaintiff's death had not yet been determined, making it uncertain whether the abatement statute even applied. In contrast, Capone addresses the procedural consequence of abatement after it has been established that the personal injury resulted in death. Because the cases address different legal and factual circumstances, the jurisdictional prerequisite of a direct conflict is not met.
Analysis:
This decision resolves a critical ambiguity in Florida's Wrongful Death Act, clarifying that 'abatement' means suspension, not termination. It prioritizes substance over procedural formalism, preventing defendants from using a plaintiff's death to force the delay and expense of a new lawsuit. The ruling enhances judicial economy and provides a clear, practical path for personal representatives to continue litigation by amending an existing action. This precedent solidifies the ability of plaintiffs to plead survival and wrongful death claims in the alternative, a crucial tool when causation of death is a contested issue.
