Florida Supreme Court Clarifies Wrongful Death Act

1052574_blue_smoking.jpgWhat happens if a plaintiff’s injuries are so severe, he or she dies during the course of a lawsuit? Does the case get dismissed? Can a spouse or other relative be substituted in as plaintiff? The Florida Supreme Court recently discussed this important issue as it related to a personal injury case filed against a tobacco manufacturer. In 2005, a couple sued the tobacco manufacturers Philip Morris and Brown and Williamson Tobacco Corporation. The basis for the suit was that the tobacco company’s products caused the husband to get lung cancer and other malignancies.

The husband died in 2006. The wife then filed a motion to amend the complaint to name additional defendants. She sought all damages available under the Florida Wrongful Death Act, but also claimed survival damages.

The tobacco manufacturer filed a motion to dismiss on the grounds that the Florida Wrongful Death Act does not allow a personal injury action to be converted into a wrongful death action. The tobacco manufacturer argued that the surviving wife had to file a new wrongful death action, rather than convert the existing lawsuit. Agreeing with the tobacco manufacturer, the circuit court denied the wife’s motion to amend and substitute and dismissed the action.

The wife then filed a motion to reconsider, arguing she was not converting a personal injury into a wrongful death suit. She explained that she was leaving open the possibility of an alternative claim for survival damages and that the different theories of recovery should be presented together in a single lawsuit.


The circuit court vacated the order that had dismissed the case and granted the wife’s motion to amend and substitute parties. The tobacco manufacturer again filed a motion to vacate on the basis that the wife’s motion for reconsideration was not served in a timely fashion. A different judge granted the motion and dismissed the wife’s action.

The wife again asked the court to vacate or reconsider, but when it declined to do so, filed an appeal. The Third District affirmed the circuit court’s dismissal. It also found that the appeal was not timely. The case came before the Florida Supreme Court.

The Florida Supreme agreed to review the case because it conflicted with another Court of Appeals case. The other case held a personal injury action against tobacco manufacturers could be amended to add a wrongful death claim and a representative of the estate could be substituted into the case.

Among other things, the Supreme Court discussed the issue of whether a personal injury complaint in Florida could be amended after the plaintiff’s death to add a wrongful death cause of action or substitute parties. The Court explained that a cause of action for wrongful death did not exist under Florida common law. An estate could maintain a survival action as well as a wrongful death action.

The former allowed the estate to recover for pain, suffering, medical expenses, loss of earnings and funeral expenses, as well as punitive damages. The latter could allow for a widow’s claim of lost support, future estate, companionship, loss of services, and more, depending on which survivor brought the claim.

The goal of the 1972 Wrongful Death Act was to merge the survival action for personal injuries and wrongful death action in a single lawsuit. Therefore, the Act allowed the decedent’s survivor to be substituted into the survival and wrongful death action.

The tobacco company had argued that the word “abates” in the Wrongful Death statute meant that the personal injury action had to be dismissed upon death of the plaintiff and a new action filed. Rather, the Florida Supreme Court explained, “abates” means that the action is halted until a personal representative of the estate can be added as a party to the pending action.

This is a very important holding for people who have been severely injured through the fault of another and die during the course of a lawsuit. If a loved one has been severely injured or killed due to another person or company’s negligence, call the experienced South Florida wrongful death attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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