Supreme Court of Florida ____________
No. SC19-601 ____________
MARY E. SHEFFIELD, etc., Petitioner,
vs.
R.J. REYNOLDS TOBACCO COMPANY, Respondent.
November 18, 2021
CANADY, C.J.
This case presents a question concerning the application of a
statutory provision enacted to impose certain limitations on the
award of punitive damages. In 1999, as part of a broader tort
reform act, the Legislature amended section 768.73, Florida
Statutes, to among other things presumptively preclude an award of
punitive damages against a defendant in a civil action if “punitive
damages have previously been awarded against that defendant in
any state or federal court in any action alleging harm from the same
act or single course of conduct for which the claimant seeks compensatory damages.” Ch. 99-225, § 23, at 1417, Laws of Fla.
The Legislature made the amendments applicable “to all causes of
action arising after” October 1, 1999. Id. § 23, at 1418; see id. § 36,
at 1428 (setting the effective date for the act). The certified conflict
issue is whether the amendments apply to Engle progeny 1 wrongful
death actions in which the smoking-injured decedent died after
October 1, 1999. We have jurisdiction. See art. V, § 3(b)(4), Fla.
Const.
Petitioner, Mary E. Sheffield—as personal representative of the
estate of her deceased husband, Valton Sheffield, who died in 2007
as the result of lung cancer diagnosed in 1994—seeks review of R.J.
Reynolds Tobacco Co. v. Sheffield, 266 So. 3d 1230 (Fla. 5th DCA
2019), in which the Fifth District Court of Appeal held that the
1999 amendments applied to her Engle progeny wrongful death
action against Respondent, R.J. Reynolds Tobacco Company
(Reynolds), on which “numerous prior punitive damages awards”
had been imposed previously. Id. at 1232. The Fifth District
generally reasoned that “arising” is synonymous with “accruing,”
1. Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
-2- that a wrongful death “cause of action” accrues upon death, and
that because Mr. Sheffield died after October 1, 1999, the cause of
action here necessarily accrued or arose after that date.
Consequently, the Fifth District concluded that the 1999
amendments, by their plain terms, applied. Id. at 1233-34.
The Fifth District certified conflict with the First District Court
of Appeal’s decision in R.J. Reynolds Tobacco Co. v. Allen, 228 So.
3d 684 (Fla. 1st DCA 2017), the Second District Court of Appeal’s
decision in R.J. Reynolds Tobacco Co. v. Evers, 232 So. 3d 457 (Fla.
2d DCA 2017), and the Fourth District Court of Appeal’s decision in
R.J. Reynolds Tobacco Co. v. Konzelman, 248 So. 3d 134 (Fla. 4th
DCA 2018), each of which applied the pre-amended version of the
statute in similar wrongful death actions. Allen, Evers, and
Konzelman all effectively held that Engle progeny cases are
“different” and that the wrongful death actions related back to the
Engle class action, which began in 1994.
Mrs. Sheffield’s main argument for why we should quash
Sheffield is a non-Engle-specific one, namely that when a personal
injury action (or potential one) becomes a wrongful death action,
the “causes of action” remain the same—i.e., that the causes of
-3- action here are Mr. Sheffield’s and that they arose in 1994 when he
was diagnosed with lung cancer. Because our caselaw weighs
against Mrs. Sheffield, and because Allen, Evers, and Konzelman
fail to justify an Engle-only exception to the 1999 amendments, we
approve the result in Sheffield and disapprove Allen, Evers, and
Konzelman.
We begin by reviewing the relevant statutory amendments. We
then briefly review Engle. Next, we address the certified conflict
cases. Then we review the background of this case. Lastly, we
explain our conclusion that the wrongful death action here is
covered by the 1999 amendments.
1999 AMENDMENTS
Chapter 99-225, Laws of Florida, added the following
underlined language to section 768.73:
(2)(a) Except as provided in paragraph (b), punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages. . . . (b) In subsequent civil actions involving the same act or single course of conduct for which punitive damages have already been awarded, if the court
-4- determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant’s behavior, the court may permit a jury to consider an award of subsequent punitive damages. . . . Any subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court.
Ch. 99-225, § 23, at 1417-18, Laws of Fla. The chapter law also
provided that the amendments “shall be applied to all causes of
action arising after the effective date of th[e] act,” id. § 23, at 1418,
which was set as October 1, 1999, id. § 36, at 1428.
The amendments may have been a response to W.R. Grace &
Co.–Conn. v. Waters, 638 So. 2d 502 (Fla. 1994). There, this Court
“acknowledge[d] the potential for abuse when a defendant may be
subjected to repeated punitive damage awards arising out of the
same conduct,” but concluded that it was “unable to devise a fair
and effective solution.” Id. at 505. Regardless of whether Waters
was the impetus for the amendments, the purpose of the
amendments is clear—to presumptively bar successive awards of
punitive damages against a defendant based on “the same act or
single course of conduct.” § 768.73(2), Fla. Stat.
-5- ENGLE
Engle v. Liggett Group., Inc., 945 So. 2d 1246 (Fla. 2006),
involved a class action lawsuit filed in 1994 “seeking compensatory
and punitive damages against major domestic cigarette companies
and two industry organizations . . . for injuries allegedly caused by
smoking.” Id. at 1256. The class was eventually certified and
defined as follows: “All [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.” Id. In 1998, the trial court issued
a three-phase trial plan, Phase I of which was “to consider the
issues of liability and entitlement to punitive damages for the class
as a whole.” Id. Phase I ended with “a verdict for the Engle Class
and against [the defendants] on all counts,” id. at 1256-57,
including a punitive damages award of $145 billion, id. at 1257.
The defendants appealed, and the Third District reversed “with
instructions that the class be decertified.” Id. at 1258.
On discretionary review, this Court quashed the Third
District’s decision in all respects except for the reversal of the
punitive damages award. Id. at 1254. That award, according to
-6- this Court, was premature and in any event excessive. Id. at 1262-
65. In otherwise quashing the decision, this Court “conclude[d]
that the trial court did not abuse its discretion in certifying the
class,” id. at 1267, and that “the cut-off date for class membership”
would be November 21, 1996, id. at 1275, with “[t]he critical event”
being “when the disease or condition first manifested itself,” rather
than diagnosis, id. at 1276. This Court also held that certain Phase
I common liability findings against the defendants could “stand,” id.
at 1255, but “that continued class action treatment” was “not
feasible,” id. at 1268. Accordingly, this Court decertified the class
but established a one-year period for “plaintiffs within the class,” id.
at 1277, to bring “individual damages actions,” id. at 1269, at
which the approved Phase I findings—and only those findings—
would be “given res judicata effect,” id. at 1277. Those individual
actions are commonly known as Engle progeny cases.
ALLEN, EVERS, AND KONZELMAN
In Allen, which originated as an Engle progeny personal injury
action, the First District began its analysis of the 1999 amendments
by noting that “[t]ypically, the applicable version of a statute is the
one ‘in effect when the cause of action arose.’ ” Allen, 228 So. 3d at
-7- 689 (quoting D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 n.9 (Fla.
2003)). Allen then treated the terms “arise” and “accrue” as
synonyms, noting that “[i]n many wrongful death actions, the cause
of action accrues on the date of a decedent’s death.” Id. But Allen
concluded that “Engle-progeny cases are different,” reasoning that
because the decedent’s injury “manifested” before the Engle class
cut-off date, the decedent was entitled to “the res judicata benefits
of the Engle class.” Id.
Allen next explained that when the decedent died, the personal
representative was “allowed to proceed in the same suit.” Id. at 690
(citing Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013)).
From there, Allen cited In re Engle Cases, 45 F. Supp. 3d 1351
(M.D. Fla. 2014), for the proposition that “[j]ust as the wrongful
death action was allowed to relate back to [the] date of the Engle
class for statute of limitations purposes, the applicable statutory
law also relates back to the Engle class.” Allen, 228 So. 3d at 690.
Lastly, Allen looked in part to the Fourth District’s decision in
R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA
2015), quashed, 232 So. 3d 294 (Fla. 2017). Allen reasoned that
because the decedent’s causes of action accrued before the 1999
-8- amendments took effect, she “had a substantive right to seek
punitive damages under the then-existing standard” and that
applying the 1999 amendments “would impair those substantive
rights.” Allen, 228 So. 3d at 690 (citing Alamo Rent–A–Car, Inc. v.
Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994)).
In Evers, which originated as an Engle progeny wrongful death
action, the Second District largely relied on Allen. Evers, 232 So.
3d at 462. Evers held that “all Engle-progeny complaints,” id., in
which the plaintiff is “entitled to the res judicata effect of the Engle
class,” id. at 463, “relate[] back to the 1994 Engle class-action
complaint,” id. at 462, such that the plaintiff’s “cause of action [is]
not controlled by the 1999 amendment[s],” id. at 463.
In Konzelman, the Fourth District simply cited Allen and Evers
in concluding that the 1999 amendments do not “appl[y] in an
Engle progeny personal injury suit that is converted into a wrongful
death action.” Konzelman, 248 So. 3d at 135.2
2. Konzelman also cited R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th DCA 2013), quashed on other grounds, 41 Fla. L. Weekly S113 (Fla. Jan. 26, 2016), an Engle progeny wrongful death action involving a 2008 death. But the parties on appeal in Buonomo “d[id] not dispute” that the 1999
-9- BACKGROUND OF THIS CASE
The relevant facts here are not in dispute: Mr. Sheffield
smoked cigarettes manufactured and sold by Reynolds; he quit
smoking in the mid-1980’s; he eventually developed three unrelated
lung cancers (1994, 2003, and 2006); and he died in 2007. Mrs.
Sheffield then filed a wrongful death action in which she alleged
Engle class membership and included “counts sounding in
negligence, strict liability, fraud by concealment, and conspiracy to
commit fraud.” Sheffield, 266 So. 3d at 1232.
After Mrs. Sheffield and Reynolds “stipulated that Mr.
Sheffield’s 1994 lung cancer was a contributing cause of his death,”
id. at 1235, the only relevant issue was whether to instruct the jury
on the 1999 amendments. The trial court agreed with Mrs.
Sheffield that Allen should control and instructed the jury on the
law that existed prior to the 1999 amendments. The jury later
determined that Mr. Sheffield was a member of the Engle class and
“returned one verdict finding liability against Reynolds and
amendments were inapplicable. Id. at 1052. So Buonomo is of no assistance.
- 10 - awarding $1.8 million in compensatory damages, and a second
verdict awarding $5 million in punitive damages.” Id. at 1232.
The Fifth District’s decision
On appeal, the Fifth District agreed with Reynolds that the
trial court should have applied “the 1999 version of section 768.73.”
Id. And because the 1999 amendments potentially shielded
Reynolds from any punitive damages award, the Fifth District
“reverse[d] for further proceedings that may include a new trial on
punitive damages.” Id.
The Fifth District began by looking to the statutory language,
which the court ultimately viewed as unambiguous. Id. at 1233.
Then, citing this Court’s decision in Schoeff v. R.J. Reynolds
Tobacco Co., 232 So. 3d 294, 301 (Fla. 2017), which held that the
amended 2011 version of the comparative fault statute controlled in
that Engle progeny wrongful death case, the Fifth District reasoned
that “when it comes to deciding which version of a statute shall be
applied, Engle-progeny cases are no different than any other cases.”
Sheffield, 266 So. 3d at 1233.
From there, the Fifth District—as Allen had done—treated
“arise” and “accrue” as synonyms, noting that “Florida law generally
- 11 - holds that the applicable version of a statute is the version in effect
at the time a cause of action accrues,” id., and that “Florida law
does not distinguish between when a cause of action accrues and
when a cause of action arises,” id. (quoting Philip Morris USA Inc. v.
Martin, 262 So. 3d 769, 773 (Fla. 4th DCA 2018)). But unlike Allen,
the Fifth District adhered to what it viewed as “clear” Florida
caselaw establishing that “a cause of action for wrongful death
accrues”—or arises—“on the date of the decedent’s death,” which
here was in 2007. Id. at 1234.
The Fifth District then addressed Allen, Evers, and Konzelman,
focusing principally on Allen. The Fifth District opined that Allen
failed to recognize the distinction this Court drew in R.J. Reynolds
Tobacco Co. v. Ciccone, 190 So. 3d 1028 (Fla. 2016), between
“manifestation” for purposes of Engle class membership and
“accrual” of the relevant cause of action. Sheffield, 266 So. 3d at
1236. And the Fifth District opined that Allen misread In re Engle
Cases and had thus misapplied the relation-back doctrine. Id. at
1236-37. After then dismissing Evers and Konzelman as having
agreed with Allen, the Fifth District certified conflict with those
three decisions. Id. at 1237-38.
- 12 - ANALYSIS
The question presented is whether the 1999 amendments to
section 768.73 apply to Engle progeny wrongful death actions in
which the decedent died after October 1, 1999. This question is a
pure question of law, which we review de novo. See Townsend v.
R.J. Reynolds Tobacco Co., 192 So. 3d 1223, 1225 (Fla. 2016).
As we have explained, this Court “adhere[s] to the ‘supremacy-
of-text principle’: ‘The words of a governing text are of paramount
concern, and what they convey, in their context, is what the text
means.’ ” Advisory Op. to Governor re Implementation of Amendment
4, the Voting Restoration Amendment, 288 So. 3d 1070, 1078 (Fla.
2020) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 56 (2012)). Here, the statute is
abundantly clear in its scope; it applies to all—not some—causes of
action that arise after October 1, 1999. The only question, then, is
when the “causes of action” here arose.
To be clear, Mrs. Sheffield nowhere seeks an Engle exception
to the plain language of the 1999 amendments. Indeed, she
explains that “her arguments would be the same” in any case
involving “conduct and injuries which predated the amendments,
- 13 - but resulted in a post-1999 death.” Nor does she suggest that the
Legislature lacked the authority to presumptively bar successive
awards of punitive damages. See Alamo Rent-A-Car, Inc. v. Mancusi,
632 So. 2d 1352, 1358 (Fla. 1994) (“[A] plaintiff’s right to a claim for
punitive damages is subject to the plenary authority of the
Legislature.”). Instead, her primary argument is that, in 1994, Mr.
Sheffield had fully mature causes of action against Reynolds that
were continuously pursued by the Engle class and then by her—i.e.,
that the “causes of action” here are Mr. Sheffield’s and that the
1999 amendments thus do not apply to the punitive damages
sought by her. We disagree. Because our caselaw establishes that
wrongful death actions are distinct from personal injury actions and
that there can be no wrongful death “cause of action” absent a
death, we conclude that the causes of action here arose when Mr.
Sheffield passed away in 2007 and are thus plainly governed by the
1999 amendments.
“Causes of action”
Mrs. Sheffield’s primary argument involves the potential
interplay between the survival statute and the Wrongful Death Act.
On the one hand, the survival statute applies when a person dies
- 14 - while possessing a cause of action against another person, but the
harm caused by the other person is not the cause of death. The
survival statute provides in full:
46.021 Actions; surviving death of party.—No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.
§ 46.021, Fla. Stat. (2020).
On the other hand, if—as was stipulated here—a person dies
from harm caused by another person, then the Wrongful Death Act
applies. See §§ 768.16-768.26, Fla. Stat. (2020). The Wrongful
Death Act establishes the following statutory “[r]ight of action”:
768.19 Right of action.—When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.
§ 768.19, Fla. Stat. The Wrongful Death Act also explicitly provides
that a wrongful death action is not a continuation of a personal
injury action. See § 768.20, Fla. Stat. (“When a personal injury to
- 15 - the decedent results in death, no action for the personal injury shall
survive, and any such action pending at the time of death shall
abate.”). Indeed, as Reynolds notes, a wrongful death action
involves “its own limitations period, § 95.11(4)(d), Fla. Stat., [and]
its own panoply of remedies, § 768.21, Fla. Stat.”
Not surprisingly, then, this Court has long recognized that a
wrongful death action—or a wrongful death “cause of action” for
that matter—accrues or arises upon death. See, e.g., Fulton Cnty.
Adm’r v. Sullivan, 753 So. 2d 549, 552 (Fla. 1999) (“In Florida, a
cause of action for wrongful death accrues on the date of
death . . . .”); St. Francis Hosp. v. Thompson, 31 So. 2d 710, 711
(Fla. 1947) (“Plaintiff’s cause of action did not accrue by reason of
the wrongful act alone. It took a wrongful act and death to give
plaintiff a cause.”); cf. Stokes v. Liberty Mut. Ins. Co., 213 So. 2d
695, 700 (Fla. 1968) (“[A] right of action for wrongful death [under
the Wrongful Death of Minors Act] can arise only after the live birth
and subsequent death of the child.” (emphasis added)).
We recognize there is some degree of continuity between a
wrongful death action and a personal injury action. See Laizure v.
Avante at Leesburg, Inc., 109 So. 3d 752, 761 (Fla. 2013) (“[I]n
- 16 - wrongful death actions in Florida, the defendant’s liability flows
from actions toward the decedent . . . .” ). Indeed, we recognize that
a wrongful death action is, to a certain extent, “derivative.” Id. at
760 (“The right of the survivors to recover is predicated in the Act
on the decedent’s right to recover.”); see also Variety Children’s
Hosp. v. Perkins, 445 So. 2d 1010, 1012 (Fla. 1983) (“Since there
was no right of action existing at the time of death, under the
statute no wrongful death cause of action survived the decedent.”).
But the “derivative” aspect of a wrongful death action—i.e., the
requirement that the decedent must have been able to “recover
damages if death had not ensued,” § 768.19, Fla. Stat.—is, in this
Court’s words, “simply a regulation of, and a limitation on, the . . .
statutory right of action created.” Toombs v. Alamo Rent-A-Car, Inc.,
833 So. 2d 109, 112 (Fla. 2002) (quoting Fla. East Coast Ry. v.
McRoberts, 149 So. 631, 633 (Fla. 1933)).
We have thus never held—nor do we today—that a personal
representative who brings a wrongful death action based on, say, a
theory of “negligence,” § 768.19, Fla. Stat., is prosecuting the
decedent’s cause of action for negligence. On the contrary, we have
long described the Wrongful Death Act as “creating an independent
- 17 - cause of action.” Variety Children’s Hosp., 445 So. 2d at 1012; see
Toombs, 833 So. 2d at 111 (“[T]his Court has long characterized the
[Wrongful Death] Act as creating a new and distinct right of action
from the right of action the decedent had prior to death.”); id. at 118
(“[A]n action for wrongful death . . . involves different rights of
recovery and damages . . . .”); see also Raie v. Cheminova, Inc., 336
F.3d 1278, 1280, 1282 (11th Cir. 2003) (noting that “[t]he accrual
date for a wrongful death action [in Florida] is the date of death,”
and explaining “that a products liability case simply is not similar
to a wrongful death case under Florida law”). And so, although
there must be a “tort underlying the wrongful death action,”
Toombs, 833 So. 2d at 115, it is more appropriate to say that a
personal representative brings a “wrongful death claim . . . based on
alleged negligence,” Laizure, 109 So. 3d at 756, or “a negligence-
based wrongful-death cause of action,” Wallace v. Dean, 3 So. 3d
1035, 1052 (Fla. 2009), than to say that the personal representative
prosecutes the decedent’s cause of action. Mrs. Sheffield’s
argument cannot be reconciled with this substantial body of
caselaw.
- 18 - We are not persuaded by Mrs. Sheffield’s reliance on Philip
Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013). There, this
Court, in addressing why “res judicata” was “the proper term” for
applying the approved Engle Phase I findings in an Engle progeny
wrongful death action, explained that “the claims in Engle and the
claims in individual actions like this case are the same causes of
action between the same parties.” Id. at 432; but see R.J. Reynolds
Tobacco Co. v. Ciccone, 190 So. 3d 1028, 1046 (Fla. 2016) (Polston,
J., dissenting) (opining that the majority’s decision there to
distinguish “manifestation” and “accrual” was irreconcilable with
Douglas’s “res judicata” holding). Mrs. Sheffield cites Douglas not
for an Engle exception to the 1999 amendments but rather for the
proposition that the causes of action in a wrongful death action
must be those of the decedent. But she overlooks that the Engle
class, as certified, included then-living “[Florida] citizens and
residents,” like Mr. Sheffield, “and their survivors.” Engle, 945 So.
2d at 1256 (emphasis added). Engle thus encompassed wrongful
death actions like this one. And we have not been asked to, nor do
we, opine on the correctness of Engle or any of this Court’s Engle
progeny decisions, including Douglas.
- 19 - Nor are we persuaded by Mrs. Sheffield’s reliance on Martin v.
United Security Services., Inc., 314 So. 2d 765 (Fla. 1975), and
Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013). In
Martin, the relevant issue was whether “Florida’s new Wrongful
Death Act” (the new Act), as revised in 1972, “constitutionally
eliminated claims under the survival statute . . . for . . . punitive
damages.” 314 So. 2d at 766-67 & n.1. A few years prior to the
new Act, this Court in Atlas Properties, Inc. v. Didich, 226 So. 2d
684 (Fla. 1969), held that the survival statute “allow[ed] the
recovery of punitive damages.” Id. at 688. Martin subsequently
held “that punitive damages [were] not eliminated by the [new] Act
and may be recovered once for each death.” 314 So. 2d at 767. In
doing so, Martin at one point explained that the new Act
consolidated or merged “survival and wrongful death actions,”
which prior to that time could simultaneously be brought in
negligent death cases, and that the new Act “substitute[d] for a
decedent’s pain and suffering the survivors’ pain and suffering as
an element of damages.” Id. Martin also noted that the new Act
evinced “an unmistakable legislative intent to incorporate . . . the
survival action formerly maintainable under Section 46.021.” Id. at
- 20 - 770. But Martin nowhere held that an action under the new Act
was a continuation of the decedent’s causes of action. Far from it.
Instead, Martin explained that the new Act “provide[d] for a cause of
action” and that it “establishe[d] who may bring the action and the
manner in which it is brought.” Id. at 768 (emphasis added); see
also id. at 767 (explaining that the new Act had consolidated “two
separate and independent causes of action” (emphasis added)). At
most, Martin stands for the proposition that, although not
enumerated in the list of damages recoverable in a wrongful death
action, see § 768.21, Fla. Stat., a claim for punitive damages
nevertheless may be pursued in a wrongful death action, largely for
“public policy reason[s].” Martin, 314 So. 2d at 772. But that
proposition does not help Mrs. Sheffield, as the issue here is not
whether she could make a claim for punitive damages but rather
whether her claim was governed by the 1999 amendments. It is. 3
3. To the extent Mrs. Sheffield can be said to argue that a wrongful death action potentially involves causes of action of the enumerated survivors and of the decedent, see § 768.21(6), Fla. Stat. (listing the damages the “personal representative may recover for the decedent’s estate”), and even if we were to view a wrongful death action in that manner, the record nevertheless shows that this case involves only damages she sustained as a “survivor.”
- 21 - In Capone, which involved an Engle progeny wrongful death
action, the relevant issue was a procedural one, namely whether “a
personal injury action can be amended after the death of a party
plaintiff to add a wrongful death claim” and whether “the personal
representative of the decedent’s estate may be substituted as a
party in the pending action.” Capone, 116 So. 3d at 368. Largely
relying on Martin and the notion that the new Act had merged two
actions, Capone answered both questions in the affirmative, id. at
377-78, ultimately construing the term “abate” in section 768.20 to
mean that the personal injury action was merely suspended until
the personal representative can be “substitute[d]” as a party and
given a reasonable opportunity to amend, id. at 377. Capone
clearly has nothing to do with the issue here. And in any event,
Mrs. Sheffield overlooks language in Capone undermining her
argument. See, e.g., id. at 373 (noting that the survival statute and
the Wrongful Death Act involve “different causes of action”).
- 22 - In the end, our caselaw compels the conclusion that the
“causes of action” in this case arose after October 1, 1999.4
“Arising” versus “accruing”
Mrs. Sheffield alternatively argues that the Fifth District
erroneously treated the terms “arising” and “accruing” as
synonyms. We disagree. And in any event, she effectively treats the
terms as synonyms.
The terms “arise” and “accrue,” standing alone, can certainly
carry different meanings. Indeed, whereas “accrue” generally refers
to the completion of the final element of the cause of action such
that the statute of limitations begins to run, see, e.g., Hearndon v.
Graham, 767 So. 2d 1179, 1184-85 (Fla. 2000), the term “arise” can
be used in more contexts. For example, one might say that
“questions arise,” but one would not say that “questions accrue.”
Nevertheless, courts in Florida, including this Court, have long
used the term “arise” as a substitute for “accrue.” E.g., Metro. Dade
Cnty. v. Jones Boatyard, Inc., 611 So. 2d 512, 513-14 (Fla. 1993)
4. Given our disposition of Mrs. Sheffield’s primary argument, we see no reason to address her argument that the 1999 amendments do not apply “retrospectively.”
- 23 - (holding that statute that expressly “applie[d] only to causes of
action arising on or after July 1, 1986,” did not “by its terms . . .
apply . . . where the underlying cause of action accrued prior to its
effective date” (first quoting § 768.71(2), Fla. Stat., and then quoting
Mudano v. St. Paul Fire & Marine Ins. Co., 543 So. 2d 876, 877 (Fla.
4th DCA 1989)). Here, where the term “arising” is used in a
temporal context—i.e., when a cause of action arises—we have no
reason to believe the Legislature did otherwise. Indeed, a cause of
action cannot arise on a day that predates there being a cause of
action. Cf. Barnett v. Dep’t of Fin. Servs., 303 So. 3d 508, 515 (Fla.
2020) (addressing the meaning of the statutory phrase “claim or
judgment . . . arising out of the same incident or occurrence,” and
explaining that “[n]o claim exists . . . until the cause of action
accrues” and that “[a] claim does not [arise] until the last element
accrues”). And, absent a death, there can be no “cause of action”
for wrongful death. See St. Francis Hosp., 31 So. 2d at 711 (“It took
a wrongful act and death to give plaintiff a cause.”).
Not surprisingly, then, Mrs. Sheffield fails to offer any Florida
case that distinguishes the two terms in this or any relevant
context. Instead, she argues that the caselaw that has treated the
- 24 - terms interchangeably, including in this context, should be
disregarded. See, e.g., Philip Morris USA Inc. v. Martin, 262 So. 3d
769, 773 (Fla. 4th DCA 2018) (“[T]he terms ‘accrue’ and ‘arise’ are
synonymous with respect to when a cause of action comes into
existence . . . .”); Lumbermens Mut. Cas. Co. v. August, 509 So. 2d
352, 353 (Fla. 4th DCA 1987) (same), quashed on other grounds,
530 So. 2d 293 (Fla. 1988); Meehan v. Celotex Corp., 466 So. 2d
1100, 1102 (Fla. 3d DCA 1985) (citing examples of Florida cases in
which “the terms ‘arise’ and ‘arose’ have consistently been used
interchangeably with the terms ‘accrue’ and ‘accrued’ ”), quashed on
other grounds, 523 So. 2d 141 (Fla. 1988). We, of course, reject
that approach, as it would be far more sensible to presume the
Legislature was aware of the judicial usage of the two terms than to
presume the Legislature implicitly drew a sharp distinction between
the two terms in this context. Cf. Jones v. ETS of New Orleans, Inc.,
793 So. 2d 912, 917 (Fla. 2001) (“[T]he Legislature is presumed to
have adopted prior judicial constructions of a law unless a contrary
intention is expressed in the new version.” (quoting City of
Hollywood v. Lombardi, 770 So. 2d 1196, 1202 (Fla. 2000))).
- 25 - In any event, Mrs. Sheffield effectively treats the terms
synonymously. Namely, after noting that “arise” means to
“originate,” she asserts that “[t]his case plainly ‘originates,’ ‘stems’
or ‘results’ from Mr. Sheffield’s 1994 lung cancer.” But linking the
term “arise” to Mr. Sheffield’s lung cancer is just another way of
arguing that wrongful death causes of action “arise” when the
decedent’s own causes of action “accrue.” And as explained above,
we reject that argument.
Certified conflict cases
Mrs. Sheffield finally argues that the certified conflict cases,
which were decided based on reasoning she does not advance here,
“reached the correct result.” As outlined above, none of the certified
conflict cases drew any distinction between “arising” and “accruing”
or suggested that wrongful death “causes of action” can arise or
accrue before death. Instead, beginning with Allen, they largely
turned on the notion that “Engle-progeny cases are different.”
Allen, 228 So. 3d at 689. But the analysis underpinning Allen is
flawed. Accordingly, we disapprove Allen as well as the other two
certified conflict cases, which largely relied on Allen.
- 26 - As the Fifth District here aptly noted, Allen not only
erroneously focused on “manifestation” rather than when a cause of
action arises, but Allen additionally turned in part on a misreading
of In re Engle Cases. That case involved Engle progeny personal
injury actions in which the plaintiffs died but the personal
representatives failed to move to amend the complaints until after
the two-year limitations period for bringing wrongful death actions.
In re Engle Cases, 45 F. Supp. 3d at 1353. The federal district
court simply held “that the wrongful death claims in question
relate[d] back to the filing of the original [Engle progeny personal
injury] complaint” so as to not be “time barred.” Id. Nothing in In
re Engle Cases supports the proposition seemingly attributed to it
by Allen, namely that statutory amendments enacted after 1994 are
per se inapplicable in Engle progeny cases.
Allen also relied on a Fourth District decision that this Court
in Schoeff, 232 So. 3d 294, subsequently quashed. Schoeff held in
relevant part that the amended 2011 version of the comparative
fault statute, by its plain terms, governed that Engle progeny
wrongful death case and that the Fourth District had “improperly”
applied the 1994 version of the statute. Id. at 301. As the Fifth
- 27 - District here observed, the relevant teaching of Schoeff is that there
is no absolute bar preventing statutory amendments from applying
to Engle progeny cases. See Sheffield, 266 So. 3d at 1233 (“Engle-
progeny cases are no different than any other cases.”).
Lastly, Allen, citing this Court’s decision in Mancusi, held that
application of the 1999 amendments would impair “substantive
rights.” Allen, 228 So. 3d at 690. Here, Mrs. Sheffield presents no
such argument. For good reason. Mancusi simply does not support
the decision reached in Allen.
As an initial matter, Mancusi is distinguishable. In Mancusi,
the relevant issue was whether a 1987 amendment to the punitive
damages statute, made “effective October 1, 1987,” should apply to
a cause of action that “arose during September 1986.” Mancusi,
632 So. 2d at 1358. This Court declined to apply that amendment,
in part because the Legislature had not “clearly expresse[d] its
intent that the statute” be applied to existing causes of action. Id.
Here, of course, and in the certified conflict cases, the relevant
causes of action arose after the effective date of the 1999
amendments, which are clear in their scope.
- 28 - Moreover, Allen ignored important language in Mancusi
explaining that “a plaintiff’s right to a claim for punitive damages is
subject to the plenary authority of the Legislature.” Id. For that
proposition, Mancusi cited Gordon v. State, 608 So. 2d 800 (Fla.
1992), where this Court upheld the constitutionality of a statute
that required 60 percent of a claimant’s punitive damages award to
be payable to the State “[i]f the cause of action was based on
personal injury or wrongful death.” Id. at 801 (quoting
§ 768.73(2)(b), Fla. Stat. (Supp. 1986)). Gordon explained that “the
allowance of punitive damages is based entirely upon
considerations of public policy” and that “an inchoate claim for
punitive damages is subject to the plenary authority of . . . the
Legislature.” Id. (quoting Gordon v. State, 585 So. 2d 1033, 1035
(Fla. 3d DCA 1991)). And Gordon further explained that “[t]he right
to have punitive damages assessed is not property; and it is the
general rule that, until a judgment is rendered, there is no vested
right in a claim for punitive damages.” Id. at 801-02 (quoting Ross
v. Gore, 48 So. 2d 412, 414 (Fla. 1950)). 5 Because Allen’s
5. In 1994, the year in which, according to Mrs. Sheffield, the causes of action here purportedly arose, the Legislature continued
- 29 - “substantive rights” analysis nowhere accounted for any of this
caselaw, we reject that analysis.
CONCLUSION
We hold that the relevant 1999 amendments to section 768.73
apply in Engle progeny wrongful death actions in which the
decedent died after the effective date of the amendments.
Accordingly, we approve the result in Sheffield and disapprove the
certified conflict cases of Allen, Evers, and Konzelman.
It is so ordered.
POLSTON, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur. LABARGA, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
to require that a portion of any punitive damages award “[i]n any civil action” be paid to the State. See ch. 92-85, §§ 2-3, Laws of Fla. (requiring that 35 percent of any such award be payable to the State and establishing a repeal date of July 1, 1995); see also id. § 4 (making the relevant amendment applicable “to pending cases and causes of action in which a judgment has not been entered”).
- 30 - LABARGA, J., dissenting.
The majority ignores the unique nature of Engle6 and treats
Engle progeny cases like traditional civil actions. In doing so, the
majority proceeds as if Engle progeny cases are completely divorced
from the procedural and substantive findings in Engle, and it
starkly contradicts what this Court has long held: Engle is different.
For these reasons, I dissent.
Because a jury has already made findings regarding general
causation, addiction of cigarettes, strict liability, fraud by
concealment, civil-conspiracy-concealment, breach of implied
warranty, breach of express warranty, and negligence, Engle
progeny cases are unlike other civil actions where the plaintiff is
required to prove the defendants’ common liability. Id. at 1255.
Entitled to the benefit of the extensive Engle findings, Engle progeny
plaintiffs need only address individual issues such as legal
causation, comparative fault, and damages. Id. at 1268. Engle
progeny wrongful death actions are, therefore, continuations of the
6. Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1255 (Fla. 2006).
- 31 - Engle litigation. See Philip Morris USA, Inc., et al., v. Douglas, 110
So. 3d 419, 432 (Fla. 2013) (“Engle allowed members of the
decertified class to pick up litigation of the approved six causes right
where the class left off . . . . [T]he claims in Engle and the claims in
individual actions . . . are the same causes of action between the
same parties . . . .”) (first emphasis added). This is precisely why we
acknowledged Engle was of “unprecedented significance,” Soffer v.
R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1227 (Fla. 2016)
(quoting Philip Morris USA v. Halgren, 124 So. 3d 350, 354 (Fla. 2d
DCA 2013)), with a “procedural posture . . . unique and unlikely to
be repeated.” Engle, 945 So. 2d at 1270 n. 12.
Sidestepping this Court’s precedent on the purported basis
that “we have not been asked to . . . opine on the correctness of
Engle or any of this Court’s Engle progeny decisions, including
Douglas,” majority op. at 19, the majority treats Engle progeny
cases as entirely new actions with entirely new trials. But, it is
clear these cases do not begin the litigation anew; the plaintiffs’
claims cannot be untethered from the class complaint, the Phase I
findings, or the substantive law underlying both. Notwithstanding
the Engle class’s decertification, class members’ claims—whether
- 32 - brought as personal injury or wrongful death causes of action—are
entitled to the res judicata effect of the Phase I findings—findings
made before the effective date of the 1999 amendments. See Engle,
945 So. 2d at 1256. Therefore, Engle progeny “causes of action,”
see section 768.73(5), Florida Statutes (1999), did not arise after the
It is undisputed that Mrs. Sheffield is a class member as
Mr. Sheffield’s “survivor,” and Engle resolved substantive elements
of her claims. Her causes of action could not have arisen in 2007
because she “pick[ed] up litigation of” the “same causes of action”
already partially litigated years earlier by “the same parties.”
Douglas, 110 So. 3d at 432. The “causes of action” here necessarily
arose before Mr. Sheffield’s 2007 death—not, as the majority
concludes, on the date of his death.
I respectfully dissent.
Application for Review of the Decision of the District Court of Appeal Certified Direct Conflict of Decisions
Fifth District - Case No. 5D17-2521
(Orange County)
- 33 - David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Sarasota, Florida; and Melvin B. Wright and Lisa Ann Thomas of Colling, Gilbert, Wright & Carter, LLC, Orlando, Florida,
for Petitioner
William L. Durham II and Val Leppert of King & Spalding, LLP, Atlanta, Georgia; Troy A. Fuhrman and Marie A. Borland of Hill Ward Henderson, Tampa, Florida; and Charles R.A. Morse of Jones Day, New York, New York, Jason T. Burnette and Brian Charles Lea of Jones Day, Atlanta, Georgia, and Noel J. Francisco of Jones Day, Washington, District of Columbia,
for Respondent
John S. Mills of Bishop & Mills, PLLC, Jacksonville, Florida, Courtney Brewer and Bailey Howard of Bishop & Mills, PLLC, Tallahassee, Florida; and Bryan S. Gowdy, on behalf of Florida Justice Association, Jacksonville, Florida,
for Amici Curiae Florida Justice Association and Citizens Against Cigarette Manufacturers
Scott A. Chesin of Shook Hardy & Bacon L.L.P., New York, New York,
for Amicus Curiae Philip Morris USA Inc.
- 34 -