Opinion
No. 3D10-488.
February 2, 2011. Rehearing Denied May 6, 2011.
An Appeal from the Circuit Court for Miami-Dade County, Joseph P. Farina, Judge.
The Ferraro Law Firm, Russell Koonin and Case Dam, Coral Gables, for appellant.
Holland Knight and Larry A. Klein, West Palm Beach; Holland Knight and Chris N. Kolos, Orlando, for appellees.
Before WELLS, LAGOA and EMAS, JJ.
Prior report: 2010 WL 326271.
Affirmed. See § 768.20, Fla. Stat. (2010) (providing that "[w]hen a personal injury to 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"); Fla.R.Civ.P. 1.260(a)(1) (stating that the court may order substitution of the proper parties "[i]f a party dies and the claim is not thereby extinguished"); Capone v. Philip Morris U.S.A. Inc., 56 So.3d 34 (Fla. 3d DCA 2010) ("The original complaint for personal injury could not be amended, on [the plaintiff's] death, to include a new wrongful death claim because Florida law establishes that a personal injury claim is extinguished upon the death of the plaintiff, and any surviving claim must be brought as a new and separate wrongful death action-it cannot be brought as an amendment to a personal injury action." See Martin v. United Security Servs., Inc. 314 So.2d 765, 770 (Fla. 1975) (upholding section 768.20, and explaining that, "a separate lawsuit for death-resulting personal injuries cannot be brought as a survival action"); ACandS, Inc. v. Redd, 703 So.2d 492, 494 (Fla. 3d DCA 1997) (plaintiffs personal injury action is extinguished and abated even when the plaintiffs death occurs during the trial of his/her case); Niemi [v. Brown Williamson Tobacco Corp., 862 So.2d 31 (Fla. 2d DCA 2003)], ("holding that, when death is the result of a personal injury, the law of Florida essentially substitutes a statutory wrongful death action for the personal injury action that would otherwise survive under section 46.021).") (citation omitted) (footnote omitted).