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Florida First DCA affirms dismissal of wrongful death complaint on statute of limitations grounds based on incorrect filing of lawsuit in decedent’s name rather than by personal representative

November 27, 2019, in Phillip Morris USA Inc. v. Freeman, No. 1D18-2070, the Florida First DCA reversed a trial court ruling that the plaintiff’s Engle-progeny tobacco wrongful death case was barred by the applicable statute of limitations. The case had originally been filed with the deceased tobacco smoker as the named plaintiff. After the defendant moved to dismiss the case, an amended complaint was filed by the decedent’s personal representative. The defendant then moved for summary judgment asserting the amended complaint was filed outside the applicable two-year statute of limitations for wrongful death. The plaintiff did not oppose that motion, and instead dismissed the amended complaint as part of an agreement with the defendant that the plaintiff would opt into the Engle class. The agreement included a stipulation that for purposes of the statute of limitations, the plaintiff would have her claims tested “using the date the dismissed lawsuit was originally filed.” The plaintiff’s case was then reinstated as an Engle class case and joined with several other Engle-progeny cases. Years later, after the plaintiff severed her claims from the multi-party case and sought to litigate her case individually in Alachua County, the defendant again moved to dismiss on statute of limitations grounds. The trial court accepted the defense argument that compliance with the two-year statute of limitations should be based on the date when the amended complaint was first properly filed naming the personal representative as the plaintiff. The First DCA agreed, noting that the stipulation between the parties indicated that the timeliness of the claim would be tested using “the date the dismissed lawsuit was filed.” The First DCA observed that this only made sense as a reference to the dismissed amended complaint which had been filed after the plaintiff had been designated as the personal representative. Even absent the stipulation, the Court made clear that the purported lawsuit filed by the decedent was a “nullity.” The Court noted that only the decedent was listed as a plaintiff in the initial lawsuit, and not the personal representative, which distinguished this case from others in which the personal representative filed a claim before his or her appointment and was considered to have the later appointment “relate back” to the original action. See, e.g., Univ. of Miami v. Wilson, 948 So. 2d 774, 778 (Fla. 3d DCA 2006).

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