Dоnna Fanali, as Successor Personal Representative of the Estate of Thomas Cavaliеr, appeals the trial court order granting the defendants’ motion for summary judgment in a wrongful death action brought by a smoker’s survivors. We affirm because the smoker knew of his tobacco related illnessеs in 1989, so he was not a member of the class certified in Engle v. Liggett Group, Inc.,
The facts crucial to this appeal are not in dispute. Cavalier was diagnosed with lung cancer and COPD in August or September 1989. At that time, he knew thаt these médical issues were related to smoking. On July 28, 1993, Cavalier died of COPD and coronary heart disease.
The 1989 diagnosis of lung cancer and COPD occurred before May 5, 1990, “the earliest date that a plaintiffs tobacco-related disease or condition could have manifested itself without the plaintiffs claims being barred by the applicable four-year statute of limitations.” R.J. Reynolds Tobacco Co. v. Ciccone,
The plaintiff responded to the summary judgment motion with the contention that the claim was not time barred because (1) Cavaliеr’s unasserted personal injury claim had not expired at the time of his death in July 1993, giving his survivors 2 years to bring a wrongful death claim; (2) the original Engle lawsuit was filed within the 2-year period that Cavalier’s survivors could have brought a wrongful death claim, thereby tolling the wrongful death statute of limitations; (3) as a survivor with .a wrongful death claim, plaintiff was a member of the Engle class, which included “[a]ll [Florida] citizens and residents, and their survivors, who have sufferеd, presently suffer or who have died from diseases and medical conditions caused by their addictiоn to cigarettes that contain nicotine,” Engle,
Thе circuit Court granted Reynolds’ motion for summary judgment, ruling that the defendant had demonstrated as a matter of law that it was entitled to a statute of limitations defense as to Fanali’s claims arising from lung cancеr and COPD.
The determination of membership in the Engle class has always focused on the smoker, not on the survivors. Engle restricted class membership to “[а]ll [Florida] citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain. nicotine.” Engle,
In Capone v. Philip Morris USA, Inc.,
upon the death of а party plaintiff in a personal injury action, the personal representative of the deсedent’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 аmended claims and causes of action.
Id. at 377-78.
Similarly, in Bishop ex rel. Estate of Ramsay v. R.J. Reynolds Tobacсo Co.,
Cases discussing class membership turn on when the smoker’s nicоtine-related illness manifested. The “ ‘critical event’ in establishing membership in the Engle class ... ‘is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.’” R.J. Reynolds Tobacco Co. v. Ciccone,
As appellee asserts in its brief, “nothing in Engle supports the argument that the word ‘survivor’ in the class definition includеd wrongful death beneficiaries of smokers who were not members of the Engle class.” The original Engle lawsuit did not plead a wrongful death theory of recovery. The term “survivors” in the class definition is best interpreted as including survivors of addicted smokers who were Engle class members. No case establishes that a smoker’s survivor can be a сlass member even where the smoker could not. It is undisputed that Cavalier was not an Engle class member; therefore his survivors were not class members and could not rely on Engle to toll the statute of limitations for thеir wrongful death claim. We affirm the order of the circuit court.
We affirm the issues raised on the cross-аppeal without discussion.
Notes
. The claims based on coronary artery disease proceeded to trial and resulted in a defense verdict.