Philip Morris USA Inc. v. Freeman

285 So.3d 999

PHILIP MORRIS USA INC., Appellant,

v.Jo E. FREEMAN, as Personal Representative of the Estate of David W. Freeman, Appellee.

No. 1D18-2070

District Court of Appeal of Florida, First District.

November 27, 2019

Joseph M. Fasi, II of Gass, Weber, Mullins, LLC, Miami; W. Edwards Muñiz of Shook, Hardy & Bacon, LLP, Tampa; Hildy M. Sastre of Shook, Hardy & Bacon, LLP, Miami; Peter M. Henk of Shook, Hardy & Bacon, LLP, Houston, Texas; and Geoffrey J. Michael of Arnold & Porter, Kaye, Scholer, LLP, Washington DC, for Appellant.

David J. Sales and Daniel R. Hoffman of the Law Firm of David J. Sales, P.A., Sarasota; Gary Paige and Cassandra Castellano-Lombard, of Gordon & Doner, P.A., Davie; and Randy Rosenblum of Dolan, Dobrinsky, Rosenblum, LLP, Miami, for Appellee.

B.L. Thomas, J. Appellant contends that the trial court erred in determining that Appellee's wrongful death claim was not time-barred because the "dismissed lawsuit" referenced in the stipulation was filed by a deceased individual and was a legal nullity. We agree and reverse the trial court's decision because Appellee's wrongful death claim was untimely under the statute of limitations.

Facts

The relevant facts are not in dispute in this tobacco case. Appellee's husband died in 1995. In 1997, the decedent, not Appellee , purportedly joined seventeen other plaintiffs and filed suit asserting damages for personal injury, which included various illnesses and death. Even though the decedent had been deceased for a year and a half, the complaint identified him as suing in his individual capacity. The personal representative of his estate was not listed as a plaintiff. A week or so later, Appellee opted out of the Engle¹ class. In late 1997, the decedent, not Appellee, purportedly filed an amended complaint dropping two plaintiffs but again, pleading a personal injury action on behalf of decedent. Neither Appellee nor a personal representative was named. Appellant moved to dismiss or, alternatively, to sever the plaintiff's claims. Before the court ruled on the motion to dismiss the amended complaint, plaintiff's counsel dismissed fifteen of the sixteen remaining plaintiffs. The notice of dismissal detailed the remaining claim was that of named plaintiff, David Freeman, the decedent. On the same day, January 2, 1998, a pleading entitled an "amended complaint" was filed. For the first time, a wrongful death action was asserted by Appellant as the personal representative of the Estate of David Freeman.

Appellant Philip Morris then moved for summary judgment asserting the "amended" complaint was filed outside the applicable two-year statute of limitations for wrongful death actions under section 95.11(4)(d), Florida Statutes. Significant here, Appellee did not oppose the motion but instead dismissed the "amended" complaint she had filed as personal representative of the estate. The dismissal of the "amended" complaint by Appellee was part of an agreement reached with Philip Morris that she would opt back into the Engle class, from which she had previously withdrawn. Both parties (and others) entered a stipulation which read:

The parties stipulate and agree that for purposes of the statute of limitations, plaintiffs ... that are opting back into the Engle class after previously filing an individual lawsuit will have the timeliness of their claims tested using the date the dismissed lawsuit was originally filed , provided that their individual lawsuits were dismissed pursuant to an agreement with defense counsel not to object to their inclusion in the Engle class.

(Emphasis added).

Appellee then filed a motion in circuit court requesting the court to reinstate her to the Engle class, subject to the terms of the stipulation. The court entered an order granting the motion and adopting the stipulation. On January 9, 2008, Appellee joined the filing of a multi-plaintiff Engle -progeny complaint wherein she pled a wrongful death action based on the death of Mr. Freeman. Litigation languished until discovery was activated in 2015 in Duval County. Appellee moved to sever her claims from the multi-plaintiff action and transfer her case to Alachua County. The court granted the motion. Before trial, Appellant moved for summary judgment, asserting its defense that the "amended" complaint was time-barred pursuant to the statute of limitations and the express terms of the parties' stipulation requiring the timeliness to be judged based on when Appellee's prior "dismissed lawsuit was originally filed." Appellant argued the timeliness of Appellee's claims should not be judged based on the 1997 complaint, because Appellee did not file that suit; rather, that suit was a legal nullity as filed in the name of a deceased individual. Instead, Appellee's prior lawsuit was "originally filed" on January 2, 1998, when she filed a complaint that, for the first time, included her as the plaintiff and pled a claim for Mr. Freeman's alleged wrongful death in 1995.

Appellee argued the key pleading was the 1997 complaint which she contends pled both personal injury and wrongful death claims. The trial court denied the motion for summary judgment finding the stipulation contemplated the "original complaint" as the 1997 complaint and not the 1998 "amended" complaint.

Appellant renewed its argument in a motion for directed verdict at trial, based on this Court's intervening decision in In Re 73 Engle-Related Cases , 239 So. 3d 166, 169 (Fla. 1st DCA 2018). The trial court denied both motions, and the jury returned a verdict in favor of Appellee. The trial court entered final judgment and denied additional post-trial motions. This appeal followed.

Analysis

"A trial court's interpretation of a contract is a matter of law and is thus subject to de novo review." Rose v. Steigleman , 32 So. 3d 644, 645 (Fla. 1st DCA 2010). The trial court's rulings here were incorrect as a matter of law.

The first purported lawsuit filed here by the decedent, not Appellee, was a nullity. In Re 73 Engle-Related Cases , 239 So. 3d 166, 169 (Fla. 1st DCA 2018) ("The lawsuits filed here were nullities because a dead person cannot file and maintain a lawsuit"); Xtra Super Food Ctr. v. Carmona , 516 So. 2d 300, 301 (Fla.1st DCA 1987) ("[D]eceased persons cannot be parties to a judicial or quasi-judicial proceeding"); Veltmann v. Walpole Pharmacy, Inc. , 928 F. Supp. 1161, 1164 (M.D. Fla. 1996) (holding that a claim for wrongful death not filed by a personal representative did not confer standing and, therefore, claims were barred under the applicable statutes of limitation: "Under Florida Law, the real party in interest for a wrongful death action is the personal representative of the decedent" (citing § 768.20 Fla. Stat. (1995) )). "As a result, persons other than the personal representative have no standing under Florida law to maintain an action"). Id. (emphasis added); Wazeman v. Blackmon , No. 3:10cv50/MCR/MD, 2011 WL 13318386 (N. D. Fla. Feb. 18, 2011) (holding that because the plaintiff had not been designated personal representative of the estate, he had no standing to assert claim for wrongful death). Because the 1997 lawsuit did not list Appellee as a plaintiff in any manner, but only the decedent, the 1997 lawsuit was a nullity.²

The operative sentence of the stipulation is: "[Appellee] ... will have the timeliness of [her] claim tested using the date the dismissed lawsuit was filed [."] (Emphasis added). Here, Appellee's "dismissed lawsuit" can...