TORTS: WRONGFUL DEATH: PRODUCTS LIABILITY: TOBACCO: CIVIL PROCEDURE: CLASS ACTIONS: ENGLE OPT OUT PLAINTIFF’S CLAIM BARRED BY STATUTE OF LIMITATIONS: OPT OUT WAS EFFECTIVE EVEN THOUGH PLAINTIFF HAD YET TO BE APPOINTED AS PERSONAL REPRESENTATIVE WHEN SHE EXECUTED IT: OPT OUT WAS NOT INEFFECTUAL BECAUSE IT DID NOT STATE THAT THE INDIVIDUAL SURVIVORS VOLUNTARILY AND KNOWINGLY RELINQUISHED THEIR INDIVIDUAL RIGHTS: OPT OUT WAS NOT INEFFECTUAL BECAUSE THE TRIAL COURT DID NOT ACKNOWLEDGE IT: OPT OUT WAS EFFECTIVE UPON FILING IT

Roughton v. R.J. Reynolds Tobacco Company, ___ So. 3d ___, 39 Fla. L. Weekly D55 (Fla. 1st DCA December 31, 2013)

The plaintiff, as the personal representative of her deceased husband’s estate, opted out of the Engle class action before the Florida Supreme Court issued its decision in the Engle case.  More than ten years after opting out of the class, the plaintiff filed an Engle progeny wrongful death action, which the trial court dismissed based upon the statute of limitations.  The appellate court affirmed.  The decision of the Florida Supreme Court in the Engle case did not reestablish the plaintiff as a class member.  The plaintiff’s opt out was effective even though she had not yet been appointed personal representative when she executed it.  Section 733.601, Florida Statutes, validates acts “beneficial to the estate” taken by a prospective personal representative after her appointment.  “The relevant question [was] whether the personal representative could have reasonably believed that opting out of the Engle class was beneficial to the estate at the time the opt-out notice was filed. . . .  Opting out did not itself cause the statute of limitations to run on the wrongful death action . . . .  The failure to file a timely, separate wrongful death action after opting out caused the problem.”  The court rejected the plaintiff’s contention that her opt out notice was ineffectual because it did not state that “the individual survivors voluntarily and knowingly relinquished their individual rights.”  In addition, the opt out was not ineffectual because the trial court did not acknowledge it.  “Both [Fla. R. Civ. P. 1.220(d)(2)] and the published notice ma[d]e clear that no order allowing a class member to opt out was required.  [The plaintiff’s] notice to opt out was effective upon filing.”