We’ve been blogging pretty regularly about the cases coming out of the case of Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). The cases have presented interesting class action issues, as well as novel statutes of limitations issues. On December 14, 2012, the second district court of appeal of Florida rendered its decision in Smith v. R.J. Reynolds Tobacco Co., No. 2D11-2562, 2012 WL 6216756 (Fla. Dist. Ct. App. Dec. 14, 2012), another case which provided Florida the opportunity to navigate “the interplay of the Florida Wrongful Death Act and the Florida Rules of Civil Procedure.” Some background first. Della Mae Butler was a plaintiff in a personal injury action against several tobacco companies; as the court notes in its decision, she was pursuing a so-called “Engle claim.” After she died, the personal representative moved to amend the complaint to substitute himself as the plaintiff and to add a wrongful death claim. The circuit court denied the motion and dismissed the complaint. Here was the issue:
Under the Wrongful Death Act, “[w]hen 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.” § 768.20, Fla. Stat. (2008). The relevant Florida Rule of Civil Procedure provides that “[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” Fla. R. Civ. P. 1.260(a)(1). Here, by denying the motion to substitute the personal representative for the deceased plaintiff, the circuit court essentially ruled that abate in the Wrongful Death Act equates with extinguish in the civil procedure rules.
Which, apparently, ignored the “remedial nature” of Florida’s Wrongful Death Act, as well as the “liberal spirit” of the civil procedure rules. The court held that “stay” is a more appropriate synonym to “abate” as used in the Wrongful Death Act, thus allowing for a party to be substituted in the event of a death. This interpretation, the court reasoned, is more in line with the rules of civil procedure, which specify that leave to amend “shall be given freely.” The interesting thing about this opinion is that, in the actual body of the opinion, the court actually acknowledges that it conflicts with a prior decision, and certified the conflict. We will continue to watch this interesting line of cases.