## Facts

- Frank and Karen Capone sued Philip Morris USA, Inc. in 2005 for injuries allegedly caused by cigarette smoking, asserting product-liability and fraud-based claims; Karen also sought loss of consortium.
- Frank Capone died on July 18, 2006.
- In 2008, Karen, as personal representative, moved to substitute herself for Frank and to amend the complaint to add defendants and assert additional claims, including wrongful-death-type claims.
- The trial court denied the motion and dismissed the entire action, reasoning a pending personal-injury case could not be amended after death to include wrongful death.
- After post-judgment rehearing litigation, including a successor judge’s ruling that an earlier rehearing motion was untimely, the trial court reinstated the dismissal.
- The district court of appeal held it had appellate jurisdiction but affirmed on the merits, concluding the personal-injury action could not be amended post-death to add wrongful death.
- The Florida Supreme Court accepted review based on conflict with another district court’s decision permitting post-death amendment in the same action.

## Issues

1. Whether the district court of appeal had jurisdiction given challenges to the timeliness and tolling effect of rehearing motions and the notice of appeal.
2. Whether, after a plaintiff dies during a pending personal-injury action, the personal representative may be added or substituted and file an amended pleading asserting new or different causes of action, including wrongful-death-type claims, in the same case.

## Decision

- The Florida Supreme Court agreed the district court of appeal had jurisdiction; the post-judgment filings tolled the time to appeal from the operative dismissal order.
- The Court quashed the decision on the merits and held that, upon the death of a plaintiff in a pending personal-injury action, the decedent’s personal representative may be added as a party and may file an amended pleading alleging new or amended claims and causes of action.
- The Court remanded for further proceedings consistent with its holding.

## Legal Principles

- A pending personal-injury action does not necessarily terminate upon the plaintiff’s death; the personal representative may be added or substituted to continue the litigation.
- After substitution or joinder of the personal representative, Florida procedure permits amendment of the pleadings to assert new or amended claims, including wrongful-death-type claims, within the existing action.
- A rule requiring a separate, newly filed wrongful death lawsuit is not mandated when a personal-injury case is already pending at the time of death.

## Conclusion

Florida law permits a decedent’s personal representative to continue a pending personal-injury lawsuit by becoming a party and amending the complaint to assert additional claims, including wrongful-death-type claims, rather than being forced to start a separate wrongful death action.


Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013)