WILMER P. GAFF, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LENNETTE GAFF, INDIVIDUALLY AS SURVIVING SPOUSE, ON BEHALF OF THE ESTATE, AND ON BEHALF OF LEWIS J. GAFF, SURVIVING CHILD, APPELLANT,
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 GROUP, INC. (F/K/A BROOKE GROUP, LTD., INC.), APPELLEES

Fla. 1st DCA | 2013-12-31
No. 1D12-1874
VAN NORTWICK and PADOVANO, JJ., concur.
129 So. 3d 1142 Florida District Court of Appeal, First District (2013) Positive Treatment
Cited by 9 cases

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Synopsis

Wilmer Gaff, as personal representative of his deceased wife's estate, appealed summary judgment dismissing wrongful death claims against tobacco companies on statute of limitations grounds. The court affirmed, holding that Gaff's 1997 opt-out from the Engle class action restarted the limitations period, which expired before his 2007 complaint was filed.


Holding

The statute of limitations was not tolled for Gaff's claim because he opted out of the Engle class action in 1997, causing the limitations period to restart. Although the filing of the Engle class complaint initially tolled the statute of limitations, once Gaff opted out, the limitations period ran anew. By the time he filed suit in 2007, the limitations period had long since expired, and his claim was barred.


Headnotes

[1] A party who opts out of a class action ceases to be a member of the class and is no longer a party to the litigation.

[2] A non-party must secure a court order to rejoin an action after the deadline to amend pleadings as a matter of course has passed.

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Key Quotes

“Once the statute of limitations ran on a former class member's individual claim, the claim was forever barred.”

Establishes the core holding that once a claim is time-barred, it cannot be revived.

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Facts & Procedural History

Lennette Gaff died of lung cancer in 1995. In 1997, Wilmer Gaff, as personal representative of her estate, filed a notice opting out of the Engle toba…

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Opinion of the Court
BENTON, J.

BENTON, J.

As personal representative of the estate of Lennette Gaff, as surviving spouse of Lennette Gaff, and on behalf of Ms. Gaffs surviving child, Wilmer Gaff asks us to overturn summary final judgment entered against him on grounds the statute of limitations bars wrongful death claims against R.J. Reynolds Tobacco Company, Philip Morris USA, Inc., Lorillard Tobacco Company, Lorillard, Inc., Liggett Group, LLC, and Vector Group, Inc. (Tobacco Defendants) on account of Ms. Gaffs death in 1995. We affirm.

As personal representative of Lennette’s estate, Mr. Gaff filed a notice to .opt out of the Engle class action litigation in 1997.1 *1144 See Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006). His arguments that this 1997 opt-out notice was “superseded” or rendered nugatory by the decision in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006); that the notice to opt out was not effective because the Engle trial court never entered an order acknowledging the notice; that -the notice was ineffective because Mr. Gaff had, not been formally appointed as personal representative at the time notice was filed; and that Mr. Gaff lacked authority as personal representative to “opt out the individual survivors’ claims” are unavailing. We reject each of them on the authority of today’s decision in Roughton v. R.J. Reynolds Tobacco Company, No. 1D12-2848, 129 So.3d 1145, 2013 WL 6865402 (Fla. 1st DCA Dec.31, 2013). When Mr. Gaff filed the statement opting out, the estate ceased to be a party to the Engle class action. See id. See also In re Brand Name Prescription Drugs Antitrust Litig., 115 F.3d 456, 457 (7th Cir.1997) (“Having opted out of the class action, they were no longer members of the class and so in no sense were parties.”).

A non-party must secure a court order to (re)join an action, once the deadline to amend pleadings as a matter of course has passed. See Fla. R. Civ. P. 1.250(c). Mr. Gaff acknowledges that the trial court never ruled on his motion seeking readmission to the class and has not appealed any putative denial of the motion.2 We reject his assertion that a motion seeking readmission to the Engle class filed June 28, 1999, almost one year after the trial proceedings began,3 should be deemed implicitly granted because the En-gle trial court had (explicitly) granted other motions for readmission as late as May of 1999.4

Merely filing a motion to rejoin the class, like merely filing a motion to intervene, does not confer party status on the movant. See Bondi v. Tucker, 93 So.3d 1106, 1111 (Fla. 1st DCA 2012) (“Even a party able to intervene as a matter of right must obtain a court order allowing intervention. An order allowing intervention, albeit of the Attorney General, is no mere formality. A court has discretion in imposing any conditions on the intervenor necessary to preserve the original parties’ rights, inasmuch as ‘the rights of an inter-venor are subordinate to the rights of the parties.’ ” (citations omitted)); Fla. R. Civ. P. 1.230, Authors’ Comment-1967 (“[T]he court has full control over intervention, including the extent thereof; although intervention under the rule is classified as of right, there must be an application made to the court, and the court in its discretion, considering the time of application as well as other factors, may deny the intervention or allow it upon conditions.”). See also *1145 John G. Grubbs, Inc. v. Suncoast Excavating, Inc., 594 So.2d 346, 347 (Fla. 5th DCA 1992).

For purposes of decision, we assume the filing of the Engle class action complaint tolled the running of the statute of limitations as to all potential members of the class, including Ms. Gaff and her personal representative. See Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 350-51, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983); Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554-55, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); Browning v. Angelfish Swim Sch., Inc., 1 So.3d 355, 362 n. 12 (Fla. 3d DCA 2009) (Shepherd, J., concurring in part and dissenting in part) (noting “the statute of limitations typically is tolled for asserted class members who later file actions of their own from the time a class complaint is filed to the time certification is denied”). The pleadings in the present case allege Ms. Gaff was diagnosed with lung cancer in March of 1995 and succumbed to the disease later in the year. The limitations period began to run (again, if not for the first time), however, when Mr. Gaff filed his statement opting out of the class. See, e.g., Tosti v. City of Los Angeles, 754 F.2d 1485, 1489 (9th Cir.1985) (noting that Tosti had three and a half months in which to file her lawsuit, before the statute of limitations was tolled by the filing of a class action, and that the statute began to run anew on the day Tosti opted out of the class action).

As we said in Roughton: “Once the statute of limitations ran on a former class member’s individual claim, the claim was forever barred. See, e.g., Wood v. Eli Lilly & Co., 701 So.2d 344, 346 (Fla.1997) (‘[T]his Court has held that once a claim is extinguished by the statute of limitations, it cannot be revived as a result of a subsequent court decision. In re Estate of Smith, 685 So.2d 1206, 1210 (Fla.[1997])’).” Roughton, 129 So.3d at 1150. The learned trial judge properly entered summary judgment on Mr. Gaffs complaint, which was filed in 2007, ten years after he had filed the statement opting out of the Engle class action and twelve years after his wife died. By that time, the limitations period had long since run.

Affirmed.

VAN NORTWICK and PADOVANO, JJ., concur.


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  • …WELLS, Judge. Affirmed. See Gaff v. R.J. Reynolds Tobacco Co., 129 So. 3d 1142, 1145 (Fla. 1st DCA 2013); see also Uffner v. Philip Morris USA Inc., 46 F. Supp. 3d 1339, 1345 (M.D. Fla. 2014).…
  • Bette Jean Walden v. R.J. Reynolds Tobacco Co., 128 So. 3d 966 (Fla. 1st DCA 2013)
    …PER CURIAM. AFFIRMED. See Roughton v. R.J. Reynolds Tobacco Co., 129 So. 3d 1145 (Fla. 1st DCA 2013); Gaff v. R.J. Reynolds Tobacco Co., 129 So. 3d 1142 (Fla. 1st DCA 2013). BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.…
  • YON v. R.J. Reynolds Tobacco Co., 129 So. 3d 1215 (Fla. 1st DCA 2014)
    …PER CURIAM. AFFIRMED. Gaff v. R.J. Reynolds Tobacco Co., 129 So. 3d 1142 (Fla. 1st DCA 2013); Roughton v. R.J. Reynolds Tobacco Co., 129 So. 3d 1145 (Fla. 1st DCA 2013). THOMAS, MARSTILLER, and MAKAR, JJ., concur.…

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