TO DISMISS OR NOT TO DISMISS...THAT IS THE QUESTION.
What happens to an Asbestos or Tobacco case if, before it can reach its conclusion, the injured party passes away from their injury? That is what will be decided in the Florida cases of Joan Ruble v. Rinker Materials Corporation Case No. SC11-1173 and Karen Capone v. Philip Morris USA, Inc. Case No. SC11-849. Although one is an asbestos case and the other a tobacco case, the two Miami-Dade County cases involve similar legal issues. Both cases were filed while the plaintiff was living and were subsequently dismissed upon their death. Both petitioners then appealed the order of dismissal and both were affirmed. Now both have been heard by the Supreme Court of Florida and await a final ruling.
All parties seem to agree that Pursuant to section 768.20 F.S.A.:
"When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate."
Simply stated, this means that if the death results from the personal injury, there is no survival action that may be maintained. Instead it would become a wrongful death action which must be brought on behalf of the estate and all lawful survivors.
As stated by the Florida Supreme Court in the case Safecare Health Corp. v. Rimer, 620 So.2d 161 (Fla.1993):
"A wrongful death action concerns the right of the statutory beneficiaries to recover for loss of support, companionship, lost earnings and other damages. §768.21, Fla. Stat. (1989). In contrast, a personal injury action concerns the right of the injured party to recover for injuries and losses resulting from the injury."
The true issue at hand is, upon the death of the plaintiff in a personal injury case, should the personal representative be substituted for the plaintiff and allowed to amend the complaint to assert a survival claim, a wrongful death claim, or both, or whether the case must be dismissed and the personal representative required to file an entirely new lawsuit.
This decision is an important one because it is such a common occurrence. Despite the fact that the Southern Reporter contains a plethora of cases that demonstrate the normal course of action is to substitute the personal representative of the plaintiff's estate and allow that personal representative to amend the complaint, the issue evidently requires some clarification.
One can only hope that common sense will prevail. Because there is no prejudice to the defendant if the plaintiff is permitted to amend the complaint and because requiring the plaintiff to re-file a complaint would not only result in additional expenses, but would cause unnecessary delays, logic would dictate to permit the amendment.