Personal Injury Action Against Tobacco Companies in Florida

In Niemi v. Brown & Williamson Tobacco Corp., 862 So. 2d 31 (Fla. 2d DCA 2003), a husband and wife filed a personal injury action against two tobacco companies, and after the husband died, the wife and a co-personal representative sought to amend the complaint to state a wrongful death action and, in the alternative, a survivor action. The trial court denied the motion and dismissed the personal injury claim. On review, the Second District Court of Appeal quashed the trial court's ruling, reasoning that "a personal injury action only 'abates' if it is first determined that the personal injury resulted in the plaintiff's death." Niemi, 862 So. 2d at 33. Because the cause of Peter Niemi's death had not been determined either by "the pleadings or by the finder of fact," the Second District concluded that the trial court erred in determining that the personal injury claim had abated. Id. The Second District explained that "unless the parties agree upon a cause of death, it is possible that the co-personal representatives will be required to plead both a personal injury action and an alternative wrongful death action." Id. at 34. The Second District thus focused on the circumstance that the cause of death had not been established or conceded at the stage of the proceedings when the complaint was dismissed.