In Roden v. RJ Reynolds, 4D11-4211 (Aug. 13, 2014), a Florida appellate court reversed the dismissal of complaint which sought to add an untimely wrongful death claim on the theory it related back to the original complaint. The complaint, filed by a plaintiff who died within months of filing suit, alleged personal injuries against defendants. Shortly after her death, the personal representative of plaintiff’s estate substituted in the case. Unbeknownst to the personal representative, however, her attorney at the time failed to file a separate wrongful death action or to amend the original complaint to allege a wrongful death claim. Several years later, the defendants moved to dismiss the personal injury claim on the basis it extinguished with the plaintiff’s death, and on the basis an amendment to add a wrongful death claim would have been futile because the time for filing such a claim had passed. The trial court granted the motion to dismiss, but the appellate court reversed.
In determining whether the wrongful death action was timely, the appellate court asked whether it arose out of the same “conduct, transaction, or occurrence” as the original pleading. In holding it did, the court explained that the wrongful death claim was based on the “exact same facts” as the personal injury action – smoking cigarettes – and thus, “the two causes of action arose out of the same transaction.” As a final matter, the court noted that there was no problem with respect to notice because the defendants were aware of plaintiff’s death during the statute of limitations period.