DONNA FANALI, as Successor Personal Representative of the ESTATE OF THOMAS CAVALIER, deceased, Appellant,
R.J. REYNOLDS TOBACCO COMPANY, Appellee.
final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Meenu Sasser, Judge;
L.T. Case No. 50-2008-CA-00800-XXXX-MB-AI.
E. Gary, Donald Watson and Glenn A. Crickenberger of Gary,
Williams, Parenti, Watson & Gary, PLLC, Stuart, Howard M.
Acosta of Law Offices of Howard M. Acosta, St. Petersburg,
and Christopher M. Chestnut, Jacksonville, for appellant.
William L. Durham, II, Chad A. Peterson, Jason Keehfus, and
Bethany Schneider of King & Spaulding, LLP, Atlanta,
Georgia, Stephanie Parker and John Walker of Jones Day,
Atlanta, Georgia, and Paul R. Reichert, Jones Day,
Washington, D.C., for appellee.
Fanali, as Successor Personal Representative of the Estate of
Thomas Cavalier, appeals the trial court order granting the
defendants' motion for summary judgment in a wrongful
death action brought by a smoker's survivors. We affirm
because the smoker knew of his tobacco related illnesses in
1989, so he was not a member of the class certified in
Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.
2006). Fanali was therefore not a survivor of an
Engle class member and her wrongful death suit,
brought 15 years after the smoker's death, was barred by
the statute of limitations.
facts crucial to this appeal are not in dispute. Cavalier was
diagnosed with lung cancer and COPD in August or September
1989. At that time, he knew that these medical issues were
related to smoking. On July 28, 1993, Cavalier died of COPD
and coronary heart disease. Fanali filed the underlying suit in this
case on January 10, 2008, seeking damages under the wrongful
death act and claiming that Cavalier and his survivors were
members of the Engle class.
1989 diagnosis of lung cancer and COPD occurred before May 5,
1990, "the earliest date that a plaintiff's
tobacco-related disease or condition could have manifested
itself without the plaintiff's claims being barred by the
applicable four-year statute of limitations." R.J.
Reynolds Tobacco Co. v. Ciccone, 190 So.3d 1028, 1042
(Fla. 2016) (Polston, J., dissenting). The defendant, R. J.
Reynolds Tobacco Company, moved for summary judgment,
contending that the plaintiff's claims were time-barred
because Cavalier's smoking-related lung cancer and COPD
both manifested before the limitations cut-off date
applicable to class membership.
plaintiff responded to the summary judgment motion with the
contention that the claim was not time barred because (1)
Cavalier's unasserted personal injury claim had not
expired at the time of his death in July 1993, giving his
survivors 2 years to bring a wrongful death claim; (2) the
original Engle lawsuit was filed within the 2-year
period that Cavalier's survivors could have brought a
wrongful death claim, thereby tolling the wrongful death
statute of limitations; (3) as a survivor with a wrongful
death claim, plaintiff was a member of the Engle
class, which included "[a]ll [Florida] citizens and
residents, and their survivors, who have suffered, presently
suffer or who have died from diseases and medical conditions
caused by their addiction to cigarettes that contain
nicotine, " Engle, 945 So.2d at 1256; and (4)
plaintiff filed her 2008 action within one year of the
Engle mandate, so her action was timely filed.
circuit court granted Reynolds' motion for summary
judgment, ruling that the defendant had demonstrated as a
matter of law that it was entitled to a statute of
limitations defense as to Fanali's claims arising from
lung cancer and COPD.
determination of membership in the Engle class has
always focused on the smoker, not on the survivors.
Engle restricted class membership to "[a]ll
[Florida] citizens and residents, and their
survivors, who have suffered, presently suffer or
who have died from diseases and medical conditions caused by
their addiction to cigarettes that contain nicotine."
Engle, 945 So.2d at 1256 (emphasis added). Cases
permitting a smoker's survivors to bring an
Engle progeny case all involve survivors of smokers
who qualified for class membership.
Capone v. Philip Morris USA, Inc., 116 So.3d 363
(Fla. 2013), the Florida Supreme Court addressed whether an
Engle smoker's case must be dismissed when the
smoker dies. The court held that the smoker's survivor
was not required to bring a separate wrongful death action.
Id. at 376-77. Instead,
upon the death of a party plaintiff in a personal injury
action, the personal representative of the decedent's
estate may be added to the pending action as a party and,
thereafter, shall have a reasonable opportunity to file an