       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT
                             July Term 2014

   KIMBERLY RODEN, as Personal Representative, for the Estate of
                LORETTA RODEN, deceased,
                         Appellant,

                                   v.

 R.J. REYNOLDS TOBACCO COMPANY, individually and as successor
   my merger to BROWN & WILLIAMSON TOBACCO CORPORATION
    (a/k/a BROWN & WILLIAMSON USA, INC.), individually and as
 successor by merger to THE AMERICAN TOBACCO COMPANY (f/k/a
  THE AMERICAN TOBACCO COMPANY INC.), a foreign corporation;
LORILLARD TOBACCO COMPANY, a foreign corporation; LORILLARD,
INC., a foreign corporation; ALTRIA GROUP, INC., a foreign corporation
  and PHILIP MORRIS, U.S.A., INC., (f/k/a PHILIP MORRIS INC.), a
   foreign corporation; VECTOR GROUP LTD, INC., (f/k/a BROOKE
   GROUP LTD., INC., f/k/a BROOKE GROUP HOLDING INC.), and
holding company for LIGGETT GROUP, LLC, individually and successor
  by merger to the LIGGETT GROUP INC., (f/k/a LIGGETT & MYERS
TOBACCO COMPANY), a foreign corporation; LIGGETT GROUP, LLC., a
foreign corporation; THE COUNSIL FOR TOBACCO RESEARCH U.S.A.,
   a foreign corporation; THE TOBACCO INSTITUTE, INC., a foreign
  corporation and JOHN DOE CORPORATION, unknown at this time,
                               Appellees.

                            No. 4D11-4211

                           [August 13, 2014]


  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Timothy    McCarthy,      Judge;   L.T.    Case    No.
502008CA000683.

  Chanthina Abney of Gary, Williams, Lewis & Watson, P.L., Stuart, for
appellant.

  Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C., for
appellee Philip Morris USA Inc.

  Charles R.A. Morse of Jones Day, New York, New York, for appellee R.J.
Reynolds Tobacco Company.

  Elliot Scherker, David L. Ross, Julissa Rodriguez and Stephanie L.
Varela of Greenberg Taurig, P.A., Miami, for appellee Lorillard Tobacco
Company.

  Karen H. Curtis of Clarke Silvergate, P.A., Miami, Co-Counsel for
appellee Liggett Group LLC.

PER CURIAM.

   Kimberly Roden appeals the trial court’s order granting the tobacco
companies’ motion to dismiss. Roden argues that the trial court erred in
determining that the complaint could not be amended to add a wrongful
death claim. We agree.

   In January 2008, the original plaintiff, Loretta Roden (“Loretta”), filed a
complaint against the tobacco companies as a member of the Engle1 class.
Loretta alleged that she suffered injuries caused by smoking cigarettes and
the actions of the tobacco companies.

   In May 2008, during the pendency of the case, Loretta died. Her death
certificate listed the causes of death as cardiac arrest, myocardial
infarction, and coronary artery disease. On September 29, 2008, Loretta’s
daughter, Roden, filed a motion for substitution of party, seeking to
substitute herself into the suit as Loretta’s personal representative. In
January 2009, the trial court signed an order granting Roden’s motion to
substitute.

   In August 2011, the tobacco companies filed a motion to dismiss the
complaint. In the motion to dismiss, the tobacco company argued that
“the personal injury claim was extinguished by [Loretta]’s death”, and
therefore the complaint should be dismissed, and cited to Niemi v. Brown
& Williamson Tobacco Corp., 862 So. 2d 31 (Fla. 2d DCA 2003), and Taylor
v. Orlando Clinic, 555 So. 2d 876 (Fla. 5th DCA 1989). The tobacco
companies also cited to section 768.20, Florida Statutes (2013), arguing
that the statute dictated that the personal injury action could not survive
Loretta’s death, and since Roden never filed a complaint or an amended
complaint seeking a wrongful death claim, the action had “abated” and the
complaint must be dismissed. The tobacco companies also argued that
Roden could not be granted leave to amend the complaint to add a
wrongful death claim because the wrongful death action had to be filed as

1   Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006)

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a separate cause of action and that the statute of limitations for a wrongful
death claim2 had already run.

   After the tobacco companies filed the motion to dismiss, Roden sought
leave to file an amended complaint which included a wrongful death claim.
Roden stated that she had not promptly filed a wrongful death claim
because she erroneously thought that a complaint, which included a
wrongful death claim, had been filed by her prior attorney. The tobacco
companies filed an opposition to this motion, along with a motion to
dismiss the amended complaint.3

   In October 2011, after a hearing on the issues, the trial court judge
entered an order granting the tobacco companies’ motion to dismiss. The
order stated “that Defendant’s Motion to Dismiss is Granted based on FS
768.20 and Capone v. Philip Morris, 56 So. 3d 34 (Fla. 3rd DCA 2011) [sic]
and Niemi v. Brown & Williamson, 862 So. 2d 31 (Fla. 2d DCA 2003).”
Roden appeals this order, raising two issues: (1) whether a wrongful death
claim must be brought as a new and separate cause of action when a
plaintiff dies during the pendency of a personal injury action, and (2)
whether the statute of limitations for wrongful death claims bars Roden’s
ability to amend the complaint in the instant case. We answer both in the
negative.


    I.    Wrongful Death as a Separate Cause of Action

   The first issue is whether a personal injury claim can be amended to
add a wrongful death cause of action when a personal injury plaintiff dies
during the pendency of the case. “Whether a personal injury complaint
can be amended upon the death of an injured party plaintiff to add a
wrongful death claim or to substitute parties is a pure question of law.
Therefore, our standard of review is de novo.” Capone v. Philip Morris
U.S.A., Inc. (Capone II), 116 So. 3d 363, 373 (Fla. 2013) (citing Universal
Ins. Co. of N. Am. v. Warfel, 82 So. 3d 47, 57 (Fla. 2012)).



2 The statute of limitations on a wrongful death claim is two years. § 95.11(4)(d),
Fla. Stat. (2013).
3 Based on the record, it seems as though the parties argued Roden’s request for

leave to file the amended complaint in conjunction with the tobacco companies’
motion to dismiss at the October 11, 2011 hearing. However, it also seems as
though the trial court did not make an explicit ruling on Roden’s motion for leave
to file an amended complaint, but implicitly rejected it by granting the tobacco
companies’ motion to dismiss.

                                       -3-
In its order granting the tobacco companies’ motion to dismiss, the trial
court judge specifically cited to section 768.20, Capone v. Philip Morris
(Capone I), 56 So. 3d 34 (Fla. 3d DCA 2011), and Niemi v. Brown &
Williamson, 862 So. 2d 31 (Fla. 2d DCA 2003). During the pendency of
this appeal, the Florida Supreme Court reviewed Capone I and reversed
the Third District’s holding. Capone II, 116 So. 3d at 377.

    The main issue our supreme court analyzed in Capone II was whether
the term “abate” as used in section 768.20 means that a personal injury
claim, upon the death of the plaintiff, is completely extinguished. Capone
II, 116 So. 3d at 376. The Court stated:

         [W]e hold that when a personal injury action “abates”
         pursuant to section 768.20, this does not require that the
         entire case be deemed immediately void and must be
         dismissed. . . . Instead, “abate,” as that term is used in section
         768.20 must be interpreted to cause the case to be suspended
         until the personal representative of the decedent’s estate is
         added as a party to the pending action and receives a
         reasonable opportunity to amend the complaint to state the
         damages sought under a wrongful death claim or to state both
         a claim for survival damages and, in the alternative, wrongful
         death where—as here—the cause of the decedent’s death may
         be disputed by the parties.

Id. at 376-77 (internal citation omitted).      The tobacco companies’
argument, with which the trial court agreed, that a wrongful death
complaint must be brought as a separate cause of action, was explicitly
rejected by our supreme court. Without the benefit of Capone II, it was
thus error for the trial court to grant the tobacco companies’ motion to
dismiss based on Capone I, which has been overturned.

   II.      Statute of Limitations and the Relation Back Doctrine

   The tobacco companies also argue that their motion to dismiss was
properly granted because the two year statute of limitations period on a
wrongful death claim had run prior to Roden seeking to amend the
complaint. Roden however, argues that the wrongful death claim relates
back to the filing of the complaint and is therefore not time-barred. We
agree that the claim relates back.

   Florida Rule of Civil Procedure 1.190(c) states that “[w]hen the claim or
defense asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the

                                        -4-
original pleading, the amendment shall relate back to the date of the
original pleading.” Fla. R. Civ. P. 1.190(c) (emphasis added). “To survive
a motion to dismiss after the statute of limitations has passed, an
amended complaint must relate back to the original pleading made before
the expiration of the statute of limitations.” Flores v. Riscomp Indus., Inc.,
35 So. 3d 146, 147 (Fla. 3d DCA 2010). A determination whether an
amended complaint arises out of the same general facts and thus relates
back is reviewed de novo. Id. at 147-48.

   The tobacco companies cite to Cox v. Seaboard Coast Line R.R. Co., 360
So. 2d 8 (Fla. 2d DCA 1978), in support of their argument that the wrongful
death claim should not relate back. In Cox, a minor and his parents were
involved in a train-car collision. 360 So. 2d at 9. The minor brought a
wrongful death action for the death of his mother, recovered, and then
brought a separate wrongful death suit for the death of his father. Id.
After the two-year statute of limitations period for a personal injury action
had run, the minor sought to amend the wrongful death complaint for his
father’s death to add a personal injury claim for his own injuries. Id. The
Second District affirmed the trial court’s order denying the minor leave to
amend his complaint. Id. at 10. The court held that, although the rules
regarding motions for leave to amend are generally construed liberally, the
“[m]inor’s personal injury action [wa]s a different cause of action than his
wrongful death cause of action.” Id. at 9-10. Therefore, the relation back
doctrine did not apply because the doctrine “does not authorize a plaintiff,
under the guise of an amendment, to state a new and different cause of
action.” Id. at 9.

   The tobacco companies also cite to School Board of Broward County,
Florida v. Surette, 394 So. 2d 147 (Fla. 4th DCA 1981), as authority. In
Surette, the parents of a minor, who was killed when she was hit by an
automobile, filed a wrongful death action, and then later amended the
complaint to add a survival claim. 394 So. 2d at 149. However, since the
survival action was added to the claim after the statute of limitations had
run, this court held that the case should be dismissed because

            the amended complaint in the present case not
            only alleged a different cause of action from that
            alleged in the original complaint, but it was also
            filed by a different party. The original complaint
            was filed by the parents of the deceased for their
            own damages; the amended complaint was filed
            by the estate for different damages.

Id. at 154 (emphasis added).

                                     -5-
   We find this case distinguishable from both Cox and Surette. In Cox,
the damages sought in the amended claim were from an injury separate
and apart from the injury in the original complaint. The amended claim
in Cox sought recovery for the injuries the minor himself sustained in the
accident (personal injury claim), as opposed to the recovery sought in the
original complaint, based on the fact that his father initially sustained
physical injuries, then later died (wrongful death claim). In the instant
case, the damages sought in both the personal injury claim and the
wrongful death claim were based on the allegation that the initial, and
eventual, injuries to the decedent were caused by smoking cigarettes. This
case is also distinguishable from Surette, because, here, the amended
complaint was not filed by a “different party,” since the trial court had
previously granted Roden’s motion to substitute.

   Black’s Law Dictionary defines “cause of action” as “[a] group of
operative facts giving rise to one or more bases for suing; a factual situation
that entitles one person to obtain a remedy in court from another person.”
Black’s Law Dictionary (9th ed. 2009) (emphasis added). Since the
personal injury action arose based on Loretta’s claim of injury due to
smoking cigarettes, and the wrongful death claim is based on the exact
same facts, we determine that the two causes of action arose out of the
same transaction. Just as the Third District held in Flores, “[a]lthough
additional allegations of fact were inserted into the complaint as it
progressed through its steps, and the legal theories of recovery were
supplemented and modified, the substantive factual situation remained the
same as that found in the original complaint.” 35 So. 3d at 147 (emphasis
added).

    An additional consideration courts have analyzed in determining
whether the relation back doctrine applies to a case is notice to the other
party. For example, in Handley v. Anclote Manor Foundation, 253 So. 2d
501, 502 (Fla. 2d DCA 1971), the Second District reviewed a trial court
order dismissing an amended complaint which sought to add the guardian
of the decedent’s son as a plaintiff to the action.   The Second District
reversed the trial court’s order, and held that the amended complaint
related back to the original filing because

             [t]here ha[d] been no prejudice shown. The
             defendants knew upon the filing of the original
             complaint that there was a child who survived the
             decedent and who might plausibly claim under
             the wrongful death statute on the same
             allegations of fact. There is no surprise, and in

                                     -6-
            our view the consistent interpretation of our
            Rules would require the trial court to permit the
            amended complaint to stand as of the date of the
            original complaint’s filing.

Id. Although the Handley case involved an amendment adding a party,
versus a different claim, in the instant case, just as in Handley, there were
no surprises; Roden filed Loretta’s death certificate on September 29,
2008, less than five months after Loretta’s death. Therefore, the tobacco
companies were on notice of Loretta’s death well before Roden sought to
amend the complaint, and well within the two-year statute of limitations
period. See also Frances v. Plaza Pac. Equities, Inc., 847 P.2d 722, 727
(Nev. 1993) (“[Defendant] was fully informed of the factual basis for an
eventual wrongful death claim through the original complaint. Moreover,
[defendant]’s counsel filed the suggestion of death on the record after [the
decedent] died, thereby eliminating any conjecture as to whether
[defendant] had notice of [the decedent]’s demise prior to [the
representative]’s request to amend the complaint and add the wrongful
death claim.”).

    Both parties also discuss how different jurisdictions have decided the
issue of whether a wrongful death claim relates back to the original filing.
As the tobacco companies point out, these are based on different relation
back doctrines and wrongful death statutes. However, multiple states, as
well as cases based on the Federal Rules of Civil Procedure, which have
similar “conduct, transaction, or occurrence” language in their relation
back doctrines, have supported wrongful death claims relating back to the
filing of the original complaint. See Lewin v. Am. Export Lines, Inc, 224
F.R.D. 389, 398 (N.D. Ohio 2004) (“Here, Plaintiffs seek to add a new claim,
i.e. wrongful death, arising from the asbestos exposure asserted in the
original Complaints. Based on the standard set forth in Rule 15(c)(2) and
Sixth Circuit case law, this claim should ‘relate back’ to the original
pleadings.”); Sompolski v. Miller, 608 N.E.2d 54, 57-58 (Ill. App. Ct. 1992)
(holding that a wrongful death claim related back to a personal injury
claim in an automobile accident case where the “wrongful death claim . . .
arose from the same transaction or occurrence” as the original complaint
and “the defendant was advised of the essential facts necessary to prepare
his defense,” even with the added claim); In re Olympia Brewing Co. Sec.
Litig., 612 F. Supp. 1370, 1372 (N.D. Ill. 1985) (discussing cases where
courts have found no relation back under rule 15, where amendments
sought were distinct from the original pleadings, the facts set forth were
separated by a significant amount of time, the claims sought to be added
were based on facts of a different character, and the facts alleged led to
different injuries); Velez v. Springer, 476 N.Y.S.2d 374, 375 (N.Y. App. Div.

                                    -7-
1984) (“There can be no question that an amendment of a complaint to
assert a cause of action for wrongful death, based upon the same acts
which have already occasioned a pending personal injury action, will be
within the ‘relation back’ provisions.”).

   Therefore, we reverse the trial court’s order granting the tobacco
companies’ motion to dismiss, and remand the case for further
proceedings consistent with this opinion.

  Reversed and Remanded.

STEVENSON, TAYLOR and CONNER, JJ., concur.

                          *        *         *

  Not final until disposition of timely filed motion for rehearing.




                                 -8-
