RUBLE V. RINKER

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Third District Court of Appeal State of Florida, January Term, A.D. 2011 Opinion filed February 2, 2011. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-488 Lower Tribunal No. 08-46100 ________________ Joan Ruble, Individually and as Personal Representative of the Estate of Lance Ruble, deceased, Appellant, vs. Rinker Material Corporation, et al., Appellees. An Appeal from the Circuit Court for Miami-Dade County, Joseph P. Farina, Judge. The Ferraro Law Firm, Russell Koonin and Case Dam, 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. WELLS, Judge. 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., 35 Fla. L. Weekly D2639 (Fla. 3d DCA Dec. 1, 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) (plaintiff s personal injury action is extinguished and abated even when the plaintiff s 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 2 injury action that would otherwise survive under section 46.021). ) (citation omitted) (footnote omitted). 3

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