In short: In Estate of Eisen v. Philip Morris (Fla. 3d DCA 2013), a husband filed a tobacco wrongful death suit as personal representative, but a felony conviction disqualified him; another person was the appointed PR. The trial court dismissed the case as time-barred. The Third District reversed: substituting the proper PR relates back to the original filing because the claim and the defendants’ notice never changed.
Only the personal representative can bring a Florida wrongful death claim. When the wrong person files, the statute of limitations can become a trap.
The Facts
Roberta Eisen died in 1993. In January 2008, her husband filed a wrongful death suit against Philip Morris as personal representative in the Engle tobacco litigation. He couldn’t serve as PR because of a prior felony conviction; another person had actually been appointed. In 2010, the estate moved to substitute the appointed PR. The trial court first allowed it, then reversed itself and dismissed the case as time-barred.
The Decision
The Third District reversed (126 So. 3d 323, Apr. 10, 2013). The substitution related back to the original filing date under Fla. R. Civ. P. 1.190(c). The court weighed fair notice to the defendants, identity of interest, lack of prejudice, and the absence of a new cause of action, and all favored the estate. Changing the nominal plaintiff affected only the remedial right to bring the action, not the substantive cause of action.
The Probate Connection
Florida requires a PR to be qualified (§ 733.303 disqualifies, among others, convicted felons). In the argument below, counsel also pointed to § 733.601, which allows a personal representative’s appointment to relate back and ratify beneficial acts done for the estate before appointment.
Lessons
- Before filing a wrongful death suit, confirm the plaintiff is the duly appointed, qualified PR.
- If a problem surfaces, move to substitute promptly.
- Families should open probate early when a death may lead to a lawsuit.
Source: Estate of Eisen v. Philip Morris USA Inc., No. 3D12-1114 (Fla. 3d DCA Apr. 10, 2013).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Can a Personal Representative Ratify a Wrongful Death Suit Someone Else Filed?
Go Deeper
- The Florida Probate Process Step by Step: What the Personal Representative Must Do and the 12-Month Clock
- How to Remove a Personal Representative in Florida — § 733.504 Florida Statutes Explained
Frequently Asked Questions
Who can file a wrongful death lawsuit in Florida?
The personal representative of the decedent’s estate, for the benefit of the estate and survivors.
What if the wrong person filed as personal representative?
Under Estate of Eisen, substituting the properly appointed PR can relate back to the original filing date.
Can a convicted felon be a personal representative in Florida?
No. Section 733.303 disqualifies convicted felons.
What does relation back mean?
An amendment is treated as filed on the original date, which can avoid a statute of limitations problem.
Talk to a Florida probate litigation lawyer
Weidner Law, P.A. handles Florida probate litigation and appeals from St. Petersburg. If you need a probate appeal lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
