Roughton v. R.J. Reynolds Tobacco Co.
Roughton v. R.J. Reynolds Tobacco Co.
Opinion of the Court
Both as personal representative of the estate of Daniel Dean Roughton and on her own behalf, Lucy Roughton, Daniel’s widow, asks us to overturn summary final judgment entered against her on grounds the statute of limitations bars wrongful death claims against R.J. Reynolds Tobacco Co., Lorillard Tobacco Company, Philip Morris USA, Inc., Liggett Group LLC, and Vector Group Ltd., Inc. (Tobacco Defendants) on account of Mr. Roughton’s death on May 2, 1997. We reject the contention that the Florida Supreme Court, in deciding Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006), nullified the notice to opt out of the Engle class action she filed in 1997, and affirm.
I.
Filed in 1994 against cigarette compa
1. In RJ Reynolds Tobacco Co. v. Engle, et. al., 672 So.2d 39 (Fla. 3d DCA 1996), rev. den., October 2, 1996, the Third District Court of Appeal of Florida affirmed the Order of October 31, 1994, granting class certification, with the modification that the class be limited to “All Florida Citizens and Residents.” The class was defined by the Third District Court of Appeal of Florida in its January 31, 1996 Decision, as follows:
“All Florida citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine ...
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26. Class members shall have one hundred eighty days (six months) from the date of the first notice publication [2 ] to opt out from the class action.
Some two months after her husband died, Ms. Roughton filed a timely statement on July 7, 1997, asking to be excluded from the Engle class. Her notice to opt out reads as follows:
THE UNDERSIGNED, Lucy A.E. Roughton as Personal Representative of the Estate of Daniel Dean Roughton of [address], requests to be excluded from the class of Plaintiffs in this action as permitted by notice of the Court to class members dated November 21,1996.
DATED: 7-7-97 Lucy A.E. Roughton LUCY A.E. ROUGHTON AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DANIEL DEAN ROUGHTON
See Fla. R. Civ. P. 1.220(d)(2)(A) (requiring that notice be given in class actions that “any member of the class who files a statement with the court by the date specified in the notice asking to be excluded shall be excluded from the class”).
Before Phase III proceedings began, the Engle defendants appealed the Phase II verdicts. On appeal, the Third District ruled “that the predominance and superiority requirements for class action ha[d] not been met.” Liggett Group, Inc. v. Engle, 853 So.2d 434, 449 (Fla. 3d DCA 2003). On that basis, the Third District concluded the “entire judgment must be reversed,” and remanded with instructions that the class be decertified. Id. at 470.
On further review in the Florida Supreme Court, that court disagreed in no uncertain terms, ruling that “[ijnvalidating the completed class action proceedings on manageability and superiority grounds after a trial has occurred does not accord with common sense or logic.” Engle, 945 So.2d at 1267. Concluding, however, that “continued class action treatment for Phase III of the trial plan is not feasible because individualized issues such as legal causation, comparative fault, and damages predominate,” id. at 1268, the supreme court concluded that the “pragmatic solution [wa]s to now decertify the class, retaining the jury’s Phase I findings other than those on the fraud and intentional infliction of emotional distress claims, which involved highly individualized determinations, and the finding on entitlement to punitive damages questions, which was premature.” Id. at 1269. Our supreme court ruled that “[ijndividual plaintiffs within the class will be permitted to proceed individually with the findings set forth above given res judicata effect in any subsequent trial between individual class members and the defendants, provided such action is filed within one year of the mandate in this case.” Id. at 1277 (emphasis supplied).
On October 30, 2007, Ms. Roughton filed a complaint on behalf of the estate and herself individually against the Tobacco Defendants in the First Circuit.
II.
Ms. Roughton argues the opt-out notice she filed in 1997 was “superseded” or “nullified” by the supreme court’s Engle
But in this sentence the supreme court was addressing the appropriate “cut-off date for class membership” only in order to resolve whether the Engle class representatives were “properly included within the class as certified.” Id. at 1274-75. The supreme court rejected the Third District’s view that the appropriate cut-off date for class membership was October 31, 1994, the date the “nationwide” class was initially certified:
The plain language of the class certification indicates that the trial court anticipated that the class would be cut off or limited to the date of final certification. The phrase “who have suffered, presently suffer or have died” supports the view that the class should include only those people who were affected in the past or who were presently suffering at the time the class was recertified by the trial court. Moreover, although not controlling, federal case law supports the interpretation that the date of final class certification should be presumed the proper cut-off date for class membership.
In our view, it is reasonable to conclude that the cut-off date for class membership is November[ ] 21,1996, the date the trial court recertified the class and issued an amended order conforming the class description to the Third District’s decision. It was with this November 21, 1996, order that the circuit court first ordered that notice to potential class members be published in newspapers and magazines circulated in Florida.
Id. at 1275 (citations omitted). Ms. Roughton’s focus on a single statement at the conclusion of the court’s opinion, merely summarizing the earlier analysis of the appropriate “cut-off date for class membership,” ignores the context in which the court analyzed “class membership.” Id. at 1275. See, e.g., Bishop ex rel. Estate of Ramsay v. R.J. Reynolds Tobacco Co., 96 So.3d 464, 466-68 (Fla. 5th DCA 2012) (“In its opinion, the court held that November 21, 1996, the date that the trial court issued its class recertification, order, was the cut-off date for Engle class inclusion.... Engle III clearly holds that November 21, 1996, is a cut-off date for class inclusion and nothing more.”).
The supreme court’s Engle opinion does not address the effect of the decision on former class members who had opted out of the class.
The Engle court’s decision to approve prior class treatment for liability, but prospectively decertify the class and allow class members to initiate individual damages actions, was not without precedent. See Engle, 945 So.2d at 1268 (citing Olden v. LaFarge Corp., 383 F.3d 495, 509 (6th Cir. 2004); Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004); Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)). Despite this, Ms. Roughton has cited no decision from any jurisdiction, and there is none that we are aware of, where the decision to decer-tify a class prospectively and permit class members to pursue individual actions for damages, after a determination of liability, was held to abrogate the statute of limitations and re-open the class to those who had previously opted out.
III.
“By statute, the personal representative is the only party with standing to bring a wrongful death action to recover damages for the benefit of the decedent’s survivors and the estate. The survivors may not bring separate legal actions.” Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So.3d 1187, 1191 (Fla. 2011) (citations omitted). See also Kadlecik v. Haim, 79 So.3d 892, 893 (Fla. 5th DCA 2012) (“Under Florida’s Wrongful Death Act, ... [t]he personal representative has the exclusive authority to conduct litigation and settle all claims. The survivors are not parties to the wrongful death litigation, even when the claims are brought for their benefit.”) (citations omitted); Thompson v. Hodson, 825 So.2d 941, 949, 953 (Fla. 1st DCA 2002) (“The personal representative has statutory responsibility to settle a wrong
Ms. Roughton argues that her opt-out notice was ineffective because she had not been formally appointed personal representative of her husband’s estate at the time she signed and filed the notice to opt out: The probate court did not appoint Ms. Roughton as personal representative of the estate until November of 2007 (after the date the complaint at issue was filed). But on this point section 733.601, Florida Statutes (1997), controls:
The duties and powers of a personal representative commence upon his or. her appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring thereafter.
This statutory provision had not changed either by the time the complaint was filed or by the time Ms. Roughton was appointed personal representative.
Ms. Roughton maintains the Tobacco Defendants “cited no authority that opting out of a case and letting the statute of limitations run is in any way ‘beneficial’ within the meaning of Section 733.601,” and that her subsequent appointment “does not relate back to this non-beneficial and repudiated act.” But the statutory requirement that the act be “beneficial to the estate” was not intended to let a de facto personal representative disavow her actions simply because later events made it seem desirable to do so. The relevant question is whether the personal representative could have reasonably believed that opting out of the Engle class action was beneficial to the estate at the time the opt-out notice was filed. See, e.g., Estate of Wesolowski v. Indus. Comm’n of Arizona, 192 Ariz. 326, 965 P.2d 60, 64 (1998) (noting the contract, signed before appointment as personal representative was “clearly intended at the time of signing to benefit the estate” and therefore bound the estate). Opting out did not itself cause the statute of limitations to run on the wrongful death action, moreover. The failure to file a timely, separate wrongful death action after opting out caused the problem.
IV.
Finally, we reject Ms. Roughton’s argument that the opt-out notice was “invalid” because the Engle trial court did not enter an order acknowledging the notices individually and listing the names of every person or entity that opted out of the class. Florida Rule of Civil Procedure 1.220(d)(2) requires that “notice shall inform each member of the class that (A) any member of the class who files a statement with the court by the date specified in the notice asking to be excluded shall be excluded from the class, (B) the judgment, whether favorable or not, will include all members who do not request exclusion. ...” The Committee Notes to Rule 1.220 state that the “rule is based on Federal Rule of Civil Procedure 23, but a number of changes have been made to eliminate problems in the federal rule through court decisions. Generally, the rule provides for ... notice to all members of the class, provisions for the members of the class to exclude themselves.... ” The notice issued by the Engle trial court stated the “judgment(s) in this Cause shall be binding on all class members unless you advise the Court in writing ... that you wish to be excluded,” and that “[i]f you exclude yourself from the Engle class action by the postmarked deadline, you will not be bound by the class judgment(s).”
Affirmed.
. The named defendants in the instant case were all parties to the Florida Supreme Court’s decision in Engle v. Liggett Group, Inc., 945 So.2d 1246, 1256 n. 3 (Fla. 2006), with the exception of Vector Group Ltd., Inc. Ms. Roughton alleged in her complaint that a "sham reorganization established Vector as the parent of ... Liggett.” In its answer, Vector Group denied that either it or any of its predecessors was a defendant in Engle.
. The legal notice approved for publication provided:
4. If you wish to remain a member of the Engle Class you do not have to do anything at this time. The lawsuit will be prosecuted on your behalf by the representative Plaintiffs and Class Counsel....
5. If you wish to be excluded from the class, you must express your desire for exclusion in writing, signed by you and postmarked no later than July 15, 1997. The judgment(s) in this Cause shall be binding on all class members unless you advise the Court in writing and signed by you that you wish to be excluded.... If you exclude yourself from the Engle class action by the postmarked deadline, you will not be bound by the class judgment(s), you will not share in any class recovery and you may pursue any individual claim you have through private counsel at your own expense.
. The complaint asserted the action was brought pursuant to Florida’s Wrongful Death Act, sections 768.16-768.27, Florida Statutes (1997), in accordance with Engle.
. The court specifically addressed the statute of limitations only when determining that the claims of one of the class representatives was barred because the jury found he knew or should have known, more than four years before the class action was filed, that he was addicted to smoking and that his cancer could have been caused by smoking. See id. at 1276; Liggett Group Inc. v. Engle, 853 So.2d 434, 453-54 n. 23 (Fla. 3d DCA 2003).
. Properly understood, the opinion indicates the decision applies only to plaintiffs who had remained class members during Phase I and
. Section 733.601, Florida Statutes (2007), provided in part:
The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment.
. Ms. Roughton's argument that it was not beneficial to the estate to opt out of the class action at the time she did so rings hollow in light of arguments she makes that the supreme court’s decision in Engle nullified all prior notices to opt out of the class action: She argued that the "originally structured litigation looked much like the type of class action that one might choose to opt out from — a large, difficult to manage class that risked small payments to class members, with very little representation of individual con-cems. The newly structured class provided each plaintiff with the opportunity to prove
Under the Engle trial court's plan, issued on February 4, 1998, trial proceedings were divided into three phases. "According to the trial plan, in Phase III, new juries [wejre to decide the individual liability and compensatory damages claims for each class member. ... Thereafter, the plan contemplated that the trial court would divide the punitive damages previously determined equally among any successful class members.” Engle, 945 So.2d at 1258. Despite the trial court order establishing individual juries for compensatory damages claims, Ms. Roughton did not file a motion to re-enter the class. Others did, and the Engle trial court entered orders granting such motions at least as late as May 12, 1999.
. On November 17, 1999, the Engle trial court did enter an "Order on Adequacy of Class Notice,” which concluded that "any person to whom the class definition applies who did not properly opt-out of the class in a timely fashion, i.e., by July 15, 1997, is a member of the Engle class.” The parties also note that the Engle trial court subsequently ruled on motions to re-admit some who had previously opted out of the class action by the July 15, 1997 deadline, indicating the trial court determined the notices to opt out were effective without court order.
Reference
- Full Case Name
- Lucy ROUGHTON, as Personal Representative of the Estate of Daniel Dean Roughton, as surviving spouse, and on behalf of the estate v. R.J. REYNOLDS TOBACCO COMPANY Philip Morris USA, Inc. Lorillard Tobacco Company Lorillard, Inc. Liggett Group, LLC (f/k/a Liggett Group, Inc., f/k/a Brooke Group, Ltd., Inc., f/k/a Liggett & Myers Tobacco Company) and Vector Groupoup, Inc. (f/ka Brooke Group, Ltd., Inc.)
- Cited By
- 6 cases
- Status
- Published