Gomez v. R.J. Reynolds Tobacco Co.—(J. Logue; 3DCA; 1/25/23).
This is an Engle-progeny tobacco wrongful death case. The decedent’s wife was declared personal representative (“PR”) of his estate, and she filed a complaint seeking non-economic pain and suffering 2 for herself or, in the alternative, for the decedent’s three children from a prior marriage. All three children had reached adulthood.
Under Florida’s wrongful death statute, adult children can only recover for wrongful death of a parent if there is no surviving spouse (§ 768.21(3)), so the tobacco companies (RJ Reynolds and Philip Morris) moved to dismiss the claims seeking benefits for the adult children. There is a conflict between the Fourth and Fifth DCAs on whether the surviving spouse had to be married to the decedent prior to the injury in order to be considered a surviving spouse under the wrongful death statute. The PR married the decedent after the date of injury in this case, so the decedent’s children say they—not their mother-in-law—should be the ones to claim wrongful death benefits.
There’s an additional problem. Since the PR is the only entity that can bring a wrongful death suit, the children were never actually parties. Despite this, the trial court allowed the children to appear with an attorney and the hearing on the motion to dismiss. The trial court granted the motion to dismiss. The children appealed and alternatively challenged the order of dismissal by a petition for a writ of certiorari.
The Third DCA rejected the argument by the children that the order was a partial final judgment that is appealable under Rule 9.110(k). While that rule permits an appeal of an order that disposes of an entire case as to any party, the children of the decedent are not entitled to join the wrongful death action as parties. § 768.20, Fla. Stat. The estate’s PR has to bring the suit. Survivors cannot bring their own suits. The order dismissing the children’s non-economic compensatory damages claims remains an interlocutory order at this point. Dismissed.
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC