Capone v. Philip Morris USA, Inc.
116 So. 3d 363
| Fla. | 2013Background
- Frank Capone died in 2006 after a tobacco-related illness; Karen Capone, as personal representative, sought to amend the complaint in 2008 to include additional defendants and survival/wrongful death theories under Engle.
- The circuit court initially denied amendments and dismissed the action, citing the Florida Wrongful Death Act and §768.20, but later vacated and allowed amendments and substitution of Karen as party.
- Philip Morris challenged timeliness of Karen’s motions and argued that §768.20 required a new wrongful death action rather than an amendment to the pending personal injury action.
- A different judge later granted Philip Morris’ motion to vacate, resulting in a dismissal order; Karen pursued rehearing and relief motions under Rules 1.530 and 1.540, which were denied in 2009.
- The Third District affirmed the dismissal, but this Court resolved the issue as an express/direct conflict with Niemi, holding that abatement allows substitution and amendments rather than automatic dismissal and the need to file a separate wrongful death action.
- The Court concluded that the personal representative may be added to the pending action and amend to pursue survival and/or wrongful death claims, disapproving Taylor v. Orlando Clinic to the extent inconsistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is abatement under §768.20 a dismissal or a suspension allowing amendment? | Capone argues abate permits substitution and amendment. | Philip Morris argues abate requires dismissal and filing a separate action. | Abate may suspend and permit amendment/substitution; not automatic dismissal. |
| Was the Third District's jurisdiction proper given the timing and tolling of motions? | Capone contends timely notices and tolling preserved jurisdiction. | Philip Morris contends untimely notices or unauthorized motions deprived jurisdiction. | Jurisdiction proper; timeliness properly tolled under 1.530 and related rules. |
Key Cases Cited
- Niemi v. Brown & Williamson Tobacco Corp., 862 So.2d 31 (Fla. 2d DCA 2003) (personal representative may substitute in pending action; abatement analysis depends on death cause)
- Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) (decertified class but allowed individual actions; framework for Engle-related claims)
- Taylor v. Orlando Clinic, 555 So.2d 876 (Fla. 5th DCA 1989) (abated approach and wrongful death action requirements under pre-Act regime)
- Lusk v. Smith, 356 So.2d 1309 (Fla. 2d DCA 1978) (time-honored practice of pleading survival and wrongful death in the alternative)
- Martin v. United Security Services, Inc., 314 So.2d 765 (Fla. 1975) (Legislative merger of survival and wrongful death actions; transfer of certain damages)
- Deal v. Deal, 783 So.2d 319 (Fla. 5th DCA 2001) (authorized motions for rehearing under Rule 1.530; final judgments subject to relief from judgment)
- Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So.3d 1187 (Fla. 2011) (remedial stance of the wrongful death statute and liberal construction)