Mary E. Sheffield, etc. v. R.J. Reynolds Tobacco Company

Supreme Court of Florida
____________

No. SC19-601
____________

MARY E. SHEFFIELD, etc.,
Petitioner,

vs.

R.J. REYNOLDS TOBACCO COMPANY,
Respondent.

November 18, 2021

CANADY, C.J.

This case presents a question concerning the application of a

statutory provision enacted to impose certain limitations on the

award of punitive damages. In 1999, as part of a broader tort

reform act, the Legislature amended section 768.73, Florida

Statutes, to among other things presumptively preclude an award of

punitive damages against a defendant in a civil action if “punitive

damages have previously been awarded against that defendant in

any state or federal court in any action alleging harm from the same

act or single course of conduct for which the claimant seeks
compensatory damages.” Ch. 99-225, § 23, at 1417, Laws of Fla.

The Legislature made the amendments applicable “to all causes of

action arising after” October 1, 1999. Id. § 23, at 1418; see id. § 36,

at 1428 (setting the effective date for the act). The certified conflict

issue is whether the amendments apply to Engle progeny 1 wrongful

death actions in which the smoking-injured decedent died after

October 1, 1999. We have jurisdiction. See art. V, § 3(b)(4), Fla.

Const.

Petitioner, Mary E. Sheffield—as personal representative of the

estate of her deceased husband, Valton Sheffield, who died in 2007

as the result of lung cancer diagnosed in 1994—seeks review of R.J.

Reynolds Tobacco Co. v. Sheffield, 266 So. 3d 1230 (Fla. 5th DCA

2019), in which the Fifth District Court of Appeal held that the

1999 amendments applied to her Engle progeny wrongful death

action against Respondent, R.J. Reynolds Tobacco Company

(Reynolds), on which “numerous prior punitive damages awards”

had been imposed previously. Id. at 1232. The Fifth District

generally reasoned that “arising” is synonymous with “accruing,”

1. Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).

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that a wrongful death “cause of action” accrues upon death, and

that because Mr. Sheffield died after October 1, 1999, the cause of

action here necessarily accrued or arose after that date.

Consequently, the Fifth District concluded that the 1999

amendments, by their plain terms, applied. Id. at 1233-34.

The Fifth District certified conflict with the First District Court

of Appeal’s decision in R.J. Reynolds Tobacco Co. v. Allen, 228 So.

3d 684 (Fla. 1st DCA 2017), the Second District Court of Appeal’s

decision in R.J. Reynolds Tobacco Co. v. Evers, 232 So. 3d 457 (Fla.

2d DCA 2017), and the Fourth District Court of Appeal’s decision in

R.J. Reynolds Tobacco Co. v. Konzelman, 248 So. 3d 134 (Fla. 4th

DCA 2018), each of which applied the pre-amended version of the

statute in similar wrongful death actions. Allen, Evers, and

Konzelman all effectively held that Engle progeny cases are

“different” and that the wrongful death actions related back to the

Engle class action, which began in 1994.

Mrs. Sheffield’s main argument for why we should quash

Sheffield is a non-Engle-specific one, namely that when a personal

injury action (or potential one) becomes a wrongful death action,

the “causes of action” remain the same—i.e., that the causes of

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action here are Mr. Sheffield’s and that they arose in 1994 when he

was diagnosed with lung cancer. Because our caselaw weighs

against Mrs. Sheffield, and because Allen, Evers, and Konzelman

fail to justify an Engle-only exception to the 1999 amendments, we

approve the result in Sheffield and disapprove Allen, Evers, and

Konzelman.

We begin by reviewing the relevant statutory amendments. We

then briefly review Engle. Next, we address the certified conflict

cases. Then we review the background of this case. Lastly, we

explain our conclusion that the wrongful death action here is

covered by the 1999 amendments.

1999 AMENDMENTS

Chapter 99-225, Laws of Florida, added the following

underlined language to section 768.73:

(2)(a) Except as provided in paragraph (b), punitive
damages may not be awarded against a defendant in a
civil action if that defendant establishes, before trial, that
punitive damages have previously been awarded against
that defendant in any state or federal court in any action
alleging harm from the same act or single course of
conduct for which the claimant seeks compensatory
damages. . . .
(b) In subsequent civil actions involving the same
act or single course of conduct for which punitive
damages have already been awarded, if the court

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determines by clear and convincing evidence that the
amount of prior punitive damages awarded was
insufficient to punish that defendant’s behavior, the
court may permit a jury to consider an award of
subsequent punitive damages. . . . Any subsequent
punitive damage awards must be reduced by the amount
of any earlier punitive damage awards rendered in state
or federal court.

Ch. 99-225, § 23, at 1417-18, Laws of Fla. The chapter law also

provided that the amendments “shall be applied to all causes of

action arising after the effective date of th[e] act,” id. § 23, at 1418,

which was set as October 1, 1999, id. § 36, at 1428.

The amendments may have been a response to W.R. Grace &

Co.–Conn. v. Waters, 638 So. 2d 502 (Fla. 1994). There, this Court

“acknowledge[d] the potential for abuse when a defendant may be

subjected to repeated punitive damage awards arising out of the

same conduct,” but concluded that it was “unable to devise a fair

and effective solution.” Id. at 505. Regardless of whether Waters

was the impetus for the amendments, the purpose of the

amendments is clear—to presumptively bar successive awards of

punitive damages against a defendant based on “the same act or

single course of conduct.” § 768.73(2), Fla. Stat.

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ENGLE

Engle v. Liggett Group., Inc., 945 So. 2d 1246 (Fla. 2006),

involved a class action lawsuit filed in 1994 “seeking compensatory

and punitive damages against major domestic cigarette companies

and two industry organizations . . . for injuries allegedly caused by

smoking.” Id. at 1256. The class was eventually certified and

defined as follows: “All [Florida] citizens and residents, and their

survivors, who have suffered, presently suffer or who have died

from diseases and medical conditions caused by their addiction to

cigarettes that contain nicotine.” Id. In 1998, the trial court issued

a three-phase trial plan, Phase I of which was “to consider the

issues of liability and entitlement to punitive damages for the class

as a whole.” Id. Phase I ended with “a verdict for the Engle Class

and against [the defendants] on all counts,” id. at 1256-57,

including a punitive damages award of $145 billion, id. at 1257.

The defendants appealed, and the Third District reversed “with

instructions that the class be decertified.” Id. at 1258.

On discretionary review, this Court quashed the Third

District’s decision in all respects except for the reversal of the

punitive damages award. Id. at 1254. That award, according to

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this Court, was premature and in any event excessive. Id. at 1262-

65. In otherwise quashing the decision, this Court “conclude[d]

that the trial court did not abuse its discretion in certifying the

class,” id. at 1267, and that “the cut-off date for class membership”

would be November 21, 1996, id. at 1275, with “[t]he critical event”

being “when the disease or condition first manifested itself,” rather

than diagnosis, id. at 1276. This Court also held that certain Phase

I common liability findings against the defendants could “stand,” id.

at 1255, but “that continued class action treatment” was “not

feasible,” id. at 1268. Accordingly, this Court decertified the class

but established a one-year period for “plaintiffs within the class,” id.

at 1277, to bring “individual damages actions,” id. at 1269, at

which the approved Phase I findings—and only those findings—

would be “given res judicata effect,” id. at 1277. Those individual

actions are commonly known as Engle progeny cases.

ALLEN, EVERS, AND KONZELMAN

In Allen, which originated as an Engle progeny personal injury

action, the First District began its analysis of the 1999 amendments

by noting that “[t]ypically, the applicable version of a statute is the

one ‘in effect when the cause of action arose.’ ” Allen, 228 So. 3d at

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689 (quoting D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 n.9 (Fla.

2003)). Allen then treated the terms “arise” and “accrue” as

synonyms, noting that “[i]n many wrongful death actions, the cause

of action accrues on the date of a decedent’s death.” Id. But Allen

concluded that “Engle-progeny cases are different,” reasoning that

because the decedent’s injury “manifested” before the Engle class

cut-off date, the decedent was entitled to “the res judicata benefits

of the Engle class.” Id.

Allen next explained that when the decedent died, the personal

representative was “allowed to proceed in the same suit.” Id. at 690

(citing Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013)).

From there, Allen cited In re Engle Cases, 45 F. Supp. 3d 1351

(M.D. Fla. 2014), for the proposition that “[j]ust as the wrongful

death action was allowed to relate back to [the] date of the Engle

class for statute of limitations purposes, the applicable statutory

law also relates back to the Engle class.” Allen, 228 So. 3d at 690.

Lastly, Allen looked in part to the Fourth District’s decision in

R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA

2015), quashed, 232 So. 3d 294 (Fla. 2017). Allen reasoned that

because the decedent’s causes of action accrued before the 1999

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amendments took effect, she “had a substantive right to seek

punitive damages under the then-existing standard” and that

applying the 1999 amendments “would impair those substantive

rights.” Allen, 228 So. 3d at 690 (citing Alamo Rent–A–Car, Inc. v.

Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994)).

In Evers, which originated as an Engle progeny wrongful death

action, the Second District largely relied on Allen. Evers, 232 So.

3d at 462. Evers held that “all Engle-progeny complaints,” id., in

which the plaintiff is “entitled to the res judicata effect of the Engle

class,” id. at 463, “relate[] back to the 1994 Engle class-action

complaint,” id. at 462, such that the plaintiff’s “cause of action [is]

not controlled by the 1999 amendment[s],” id. at 463.

In Konzelman, the Fourth District simply cited Allen and Evers

in concluding that the 1999 amendments do not “appl[y] in an

Engle progeny personal injury suit that is converted into a wrongful

death action.” Konzelman, 248 So. 3d at 135.2

2. Konzelman also cited R.J. Reynolds Tobacco Co. v.
Buonomo, 138 So. 3d 1049 (Fla. 4th DCA 2013), quashed on other
grounds, 41 Fla. L. Weekly S113 (Fla. Jan. 26, 2016), an Engle
progeny wrongful death action involving a 2008 death. But the
parties on appeal in Buonomo “d[id] not dispute” that the 1999

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BACKGROUND OF THIS CASE

The relevant facts here are not in dispute: Mr. Sheffield

smoked cigarettes manufactured and sold by Reynolds; he quit

smoking in the mid-1980’s; he eventually developed three unrelated

lung cancers (1994, 2003, and 2006); and he died in 2007. Mrs.

Sheffield then filed a wrongful death action in which she alleged

Engle class membership and included “counts sounding in

negligence, strict liability, fraud by concealment, and conspiracy to

commit fraud.” Sheffield, 266 So. 3d at 1232.

After Mrs. Sheffield and Reynolds “stipulated that Mr.

Sheffield’s 1994 lung cancer was a contributing cause of his death,”

id. at 1235, the only relevant issue was whether to instruct the jury

on the 1999 amendments. The trial court agreed with Mrs.

Sheffield that Allen should control and instructed the jury on the

law that existed prior to the 1999 amendments. The jury later

determined that Mr. Sheffield was a member of the Engle class and

“returned one verdict finding liability against Reynolds and

amendments were inapplicable. Id. at 1052. So Buonomo is of no
assistance.

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awarding $1.8 million in compensatory damages, and a second

verdict awarding $5 million in punitive damages.” Id. at 1232.

The Fifth District’s decision

On appeal, the Fifth District agreed with Reynolds that the

trial court should have applied “the 1999 version of section 768.73.”

Id. And because the 1999 amendments potentially shielded

Reynolds from any punitive damages award, the Fifth District

“reverse[d] for further proceedings that may include a new trial on

punitive damages.” Id.

The Fifth District began by looking to the statutory language,

which the court ultimately viewed as unambiguous. Id. at 1233.

Then, citing this Court’s decision in Schoeff v. R.J. Reynolds

Tobacco Co., 232 So. 3d 294, 301 (Fla. 2017), which held that the

amended 2011 version of the comparative fault statute controlled in

that Engle progeny wrongful death case, the Fifth District reasoned

that “when it comes to deciding which version of a statute shall be

applied, Engle-progeny cases are no different than any other cases.”

Sheffield, 266 So. 3d at 1233.

From there, the Fifth District—as Allen had done—treated

“arise” and “accrue” as synonyms, noting that “Florida law generally

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holds that the applicable version of a statute is the version in effect

at the time a cause of action accrues,” id., and that “Florida law

does not distinguish between when a cause of action accrues and

when a cause of action arises,” id. (quoting Philip Morris USA Inc. v.

Martin, 262 So. 3d 769, 773 (Fla. 4th DCA 2018)). But unlike Allen,

the Fifth District adhered to what it viewed as “clear” Florida

caselaw establishing that “a cause of action for wrongful death

accrues”—or arises—“on the date of the decedent’s death,” which

here was in 2007. Id. at 1234.

The Fifth District then addressed Allen, Evers, and Konzelman,

focusing principally on Allen. The Fifth District opined that Allen

failed to recognize the distinction this Court drew in R.J. Reynolds

Tobacco Co. v. Ciccone, 190 So. 3d 1028 (Fla. 2016), between

“manifestation” for purposes of Engle class membership and

“accrual” of the relevant cause of action. Sheffield, 266 So. 3d at

1236. And the Fifth District opined that Allen misread In re Engle

Cases and had thus misapplied the relation-back doctrine. Id. at

1236-37. After then dismissing Evers and Konzelman as having

agreed with Allen, the Fifth District certified conflict with those

three decisions. Id. at 1237-38.

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ANALYSIS

The question presented is whether the 1999 amendments to

section 768.73 apply to Engle progeny wrongful death actions in

which the decedent died after October 1, 1999. This question is a

pure question of law, which we review de novo. See Townsend v.

R.J. Reynolds Tobacco Co., 192 So. 3d 1223, 1225 (Fla. 2016).

As we have explained, this Court “adhere[s] to the ‘supremacy-

of-text principle’: ‘The words of a governing text are of paramount

concern, and what they convey, in their context, is what the text

means.’ ” Advisory Op. to Governor re Implementation of Amendment

4, the Voting Restoration Amendment, 288 So. 3d 1070, 1078 (Fla.

2020) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 56 (2012)). Here, the statute is

abundantly clear in its scope; it applies to all—not some—causes of

action that arise after October 1, 1999. The only question, then, is

when the “causes of action” here arose.

To be clear, Mrs. Sheffield nowhere seeks an Engle exception

to the plain language of the 1999 amendments. Indeed, she

explains that “her arguments would be the same” in any case

involving “conduct and injuries which predated the amendments,

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but resulted in a post-1999 death.” Nor does she suggest that the

Legislature lacked the authority to presumptively bar successive

awards of punitive damages. See Alamo Rent-A-Car, Inc. v. Mancusi,

632 So. 2d 1352, 1358 (Fla. 1994) (“[A] plaintiff’s right to a claim for

punitive damages is subject to the plenary authority of the

Legislature.”). Instead, her primary argument is that, in 1994, Mr.

Sheffield had fully mature causes of action against Reynolds that

were continuously pursued by the Engle class and then by her—i.e.,

that the “causes of action” here are Mr. Sheffield’s and that the

1999 amendments thus do not apply to the punitive damages

sought by her. We disagree. Because our caselaw establishes that

wrongful death actions are distinct from personal injury actions and

that there can be no wrongful death “cause of action” absent a

death, we conclude that the causes of action here arose when Mr.

Sheffield passed away in 2007 and are thus plainly governed by the

1999 amendments.

“Causes of action”

Mrs. Sheffield’s primary argument involves the potential

interplay between the survival statute and the Wrongful Death Act.

On the one hand, the survival statute applies when a person dies

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while possessing a cause of action against another person, but the

harm caused by the other person is not the cause of death. The

survival statute provides in full:

46.021 Actions; surviving death of party.—No
cause of action dies with the person. All causes of action
survive and may be commenced, prosecuted, and
defended in the name of the person prescribed by law.

§ 46.021, Fla. Stat. (2020).

On the other hand, if—as was stipulated here—a person dies

from harm caused by another person, then the Wrongful Death Act

applies. See §§ 768.16-768.26, Fla. Stat. (2020). The Wrongful

Death Act establishes the following statutory “[r]ight of action”:

768.19 Right of action.—When the death of a
person is caused by the wrongful act, negligence, default,
or breach of contract or warranty of any person,
including those occurring on navigable waters, and the
event would have entitled the person injured to maintain
an action and recover damages if death had not ensued,
the person or watercraft that would have been liable in
damages if death had not ensued shall be liable for
damages as specified in this act notwithstanding the
death of the person injured, although death was caused
under circumstances constituting a felony.

§ 768.19, Fla. Stat. The Wrongful Death Act also explicitly provides

that a wrongful death action is not a continuation of a personal

injury action. See § 768.20, Fla. Stat. (“When a personal injury to

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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.”). Indeed, as Reynolds notes, a wrongful death action

involves “its own limitations period, § 95.11(4)(d), Fla. Stat., [and]

its own panoply of remedies, § 768.21, Fla. Stat.”

Not surprisingly, then, this Court has long recognized that a

wrongful death action—or a wrongful death “cause of action” for

that matter—accrues or arises upon death. See, e.g., Fulton Cnty.

Adm’r v. Sullivan, 753 So. 2d 549, 552 (Fla. 1999) (“In Florida, a

cause of action for wrongful death accrues on the date of

death . . . .”); St. Francis Hosp. v. Thompson, 31 So. 2d 710, 711

(Fla. 1947) (“Plaintiff’s cause of action did not accrue by reason of

the wrongful act alone. It took a wrongful act and death to give

plaintiff a cause.”); cf. Stokes v. Liberty Mut. Ins. Co., 213 So. 2d

695, 700 (Fla. 1968) (“[A] right of action for wrongful death [under

the Wrongful Death of Minors Act] can arise only after the live birth

and subsequent death of the child.” (emphasis added)).

We recognize there is some degree of continuity between a

wrongful death action and a personal injury action. See Laizure v.

Avante at Leesburg, Inc., 109 So. 3d 752, 761 (Fla. 2013) (“[I]n

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wrongful death actions in Florida, the defendant’s liability flows

from actions toward the decedent . . . .” ). Indeed, we recognize that

a wrongful death action is, to a certain extent, “derivative.” Id. at

760 (“The right of the survivors to recover is predicated in the Act

on the decedent’s right to recover.”); see also Variety Children’s

Hosp. v. Perkins, 445 So. 2d 1010, 1012 (Fla. 1983) (“Since there

was no right of action existing at the time of death, under the

statute no wrongful death cause of action survived the decedent.”).

But the “derivative” aspect of a wrongful death action—i.e., the

requirement that the decedent must have been able to “recover

damages if death had not ensued,” § 768.19, Fla. Stat.—is, in this

Court’s words, “simply a regulation of, and a limitation on, the . . .

statutory right of action created.” Toombs v. Alamo Rent-A-Car, Inc.,

833 So. 2d 109, 112 (Fla. 2002) (quoting Fla. East Coast Ry. v.

McRoberts, 149 So. 631, 633 (Fla. 1933)).

We have thus never held—nor do we today—that a personal

representative who brings a wrongful death action based on, say, a

theory of “negligence,” § 768.19, Fla. Stat., is prosecuting the

decedent’s cause of action for negligence. On the contrary, we have

long described the Wrongful Death Act as “creating an independent

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cause of action.” Variety Children’s Hosp., 445 So. 2d at 1012; see

Toombs, 833 So. 2d at 111 (“[T]his Court has long characterized the

[Wrongful Death] Act as creating a new and distinct right of action

from the right of action the decedent had prior to death.”); id. at 118

(“[A]n action for wrongful death . . . involves different rights of

recovery and damages . . . .”); see also Raie v. Cheminova, Inc., 336

F.3d 1278, 1280, 1282 (11th Cir. 2003) (noting that “[t]he accrual

date for a wrongful death action [in Florida] is the date of death,”

and explaining “that a products liability case simply is not similar

to a wrongful death case under Florida law”). And so, although

there must be a “tort underlying the wrongful death action,”

Toombs, 833 So. 2d at 115, it is more appropriate to say that a

personal representative brings a “wrongful death claim . . . based on

alleged negligence,” Laizure, 109 So. 3d at 756, or “a negligence-

based wrongful-death cause of action,” Wallace v. Dean, 3 So. 3d

1035, 1052 (Fla. 2009), than to say that the personal representative

prosecutes the decedent’s cause of action. Mrs. Sheffield’s

argument cannot be reconciled with this substantial body of

caselaw.

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We are not persuaded by Mrs. Sheffield’s reliance on Philip

Morris USA, Inc. v. Douglas, 110 So. 3d 419 (Fla. 2013). There, this

Court, in addressing why “res judicata” was “the proper term” for

applying the approved Engle Phase I findings in an Engle progeny

wrongful death action, explained that “the claims in Engle and the

claims in individual actions like this case are the same causes of

action between the same parties.” Id. at 432; but see R.J. Reynolds

Tobacco Co. v. Ciccone, 190 So. 3d 1028, 1046 (Fla. 2016) (Polston,

J., dissenting) (opining that the majority’s decision there to

distinguish “manifestation” and “accrual” was irreconcilable with

Douglas’s “res judicata” holding). Mrs. Sheffield cites Douglas not

for an Engle exception to the 1999 amendments but rather for the

proposition that the causes of action in a wrongful death action

must be those of the decedent. But she overlooks that the Engle

class, as certified, included then-living “[Florida] citizens and

residents,” like Mr. Sheffield, “and their survivors.” Engle, 945 So.

2d at 1256 (emphasis added). Engle thus encompassed wrongful

death actions like this one. And we have not been asked to, nor do

we, opine on the correctness of Engle or any of this Court’s Engle

progeny decisions, including Douglas.

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Nor are we persuaded by Mrs. Sheffield’s reliance on Martin v.

United Security Services., Inc., 314 So. 2d 765 (Fla. 1975), and

Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013). In

Martin, the relevant issue was whether “Florida’s new Wrongful

Death Act” (the new Act), as revised in 1972, “constitutionally

eliminated claims under the survival statute . . . for . . . punitive

damages.” 314 So. 2d at 766-67 & n.1. A few years prior to the

new Act, this Court in Atlas Properties, Inc. v. Didich, 226 So. 2d

684 (Fla. 1969), held that the survival statute “allow[ed] the

recovery of punitive damages.” Id. at 688. Martin subsequently

held “that punitive damages [were] not eliminated by the [new] Act

and may be recovered once for each death.” 314 So. 2d at 767. In

doing so, Martin at one point explained that the new Act

consolidated or merged “survival and wrongful death actions,”

which prior to that time could simultaneously be brought in

negligent death cases, and that the new Act “substitute[d] for a

decedent’s pain and suffering the survivors’ pain and suffering as

an element of damages.” Id. Martin also noted that the new Act

evinced “an unmistakable legislative intent to incorporate . . . the

survival action formerly maintainable under Section 46.021.” Id. at

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770. But Martin nowhere held that an action under the new Act

was a continuation of the decedent’s causes of action. Far from it.

Instead, Martin explained that the new Act “provide[d] for a cause of

action” and that it “establishe[d] who may bring the action and the

manner in which it is brought.” Id. at 768 (emphasis added); see

also id. at 767 (explaining that the new Act had consolidated “two

separate and independent causes of action” (emphasis added)). At

most, Martin stands for the proposition that, although not

enumerated in the list of damages recoverable in a wrongful death

action, see § 768.21, Fla. Stat., a claim for punitive damages

nevertheless may be pursued in a wrongful death action, largely for

“public policy reason[s].” Martin, 314 So. 2d at 772. But that

proposition does not help Mrs. Sheffield, as the issue here is not

whether she could make a claim for punitive damages but rather

whether her claim was governed by the 1999 amendments. It is. 3

3. To the extent Mrs. Sheffield can be said to argue that a
wrongful death action potentially involves causes of action of the
enumerated survivors and of the decedent, see § 768.21(6), Fla.
Stat. (listing the damages the “personal representative may recover
for the decedent’s estate”), and even if we were to view a wrongful
death action in that manner, the record nevertheless shows that
this case involves only damages she sustained as a “survivor.”

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In Capone, which involved an Engle progeny wrongful death

action, the relevant issue was a procedural one, namely whether “a

personal injury action can be amended after the death of a party

plaintiff to add a wrongful death claim” and whether “the personal

representative of the decedent’s estate may be substituted as a

party in the pending action.” Capone, 116 So. 3d at 368. Largely

relying on Martin and the notion that the new Act had merged two

actions, Capone answered both questions in the affirmative, id. at

377-78, ultimately construing the term “abate” in section 768.20 to

mean that the personal injury action was merely suspended until

the personal representative can be “substitute[d]” as a party and

given a reasonable opportunity to amend, id. at 377. Capone

clearly has nothing to do with the issue here. And in any event,

Mrs. Sheffield overlooks language in Capone undermining her

argument. See, e.g., id. at 373 (noting that the survival statute and

the Wrongful Death Act involve “different causes of action”).

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In the end, our caselaw compels the conclusion that the

“causes of action” in this case arose after October 1, 1999.4

“Arising” versus “accruing”

Mrs. Sheffield alternatively argues that the Fifth District

erroneously treated the terms “arising” and “accruing” as

synonyms. We disagree. And in any event, she effectively treats the

terms as synonyms.

The terms “arise” and “accrue,” standing alone, can certainly

carry different meanings. Indeed, whereas “accrue” generally refers

to the completion of the final element of the cause of action such

that the statute of limitations begins to run, see, e.g., Hearndon v.

Graham, 767 So. 2d 1179, 1184-85 (Fla. 2000), the term “arise” can

be used in more contexts. For example, one might say that

“questions arise,” but one would not say that “questions accrue.”

Nevertheless, courts in Florida, including this Court, have long

used the term “arise” as a substitute for “accrue.” E.g., Metro. Dade

Cnty. v. Jones Boatyard, Inc., 611 So. 2d 512, 513-14 (Fla. 1993)

4. Given our disposition of Mrs. Sheffield’s primary argument,
we see no reason to address her argument that the 1999
amendments do not apply “retrospectively.”

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(holding that statute that expressly “applie[d] only to causes of

action arising on or after July 1, 1986,” did not “by its terms . . .

apply . . . where the underlying cause of action accrued prior to its

effective date” (first quoting § 768.71(2), Fla. Stat., and then quoting

Mudano v. St. Paul Fire & Marine Ins. Co., 543 So. 2d 876, 877 (Fla.

4th DCA 1989)). Here, where the term “arising” is used in a

temporal context—i.e., when a cause of action arises—we have no

reason to believe the Legislature did otherwise. Indeed, a cause of

action cannot arise on a day that predates there being a cause of

action. Cf. Barnett v. Dep’t of Fin. Servs., 303 So. 3d 508, 515 (Fla.

2020) (addressing the meaning of the statutory phrase “claim or

judgment . . . arising out of the same incident or occurrence,” and

explaining that “[n]o claim exists . . . until the cause of action

accrues” and that “[a] claim does not [arise] until the last element

accrues”). And, absent a death, there can be no “cause of action”

for wrongful death. See St. Francis Hosp., 31 So. 2d at 711 (“It took

a wrongful act and death to give plaintiff a cause.”).

Not surprisingly, then, Mrs. Sheffield fails to offer any Florida

case that distinguishes the two terms in this or any relevant

context. Instead, she argues that the caselaw that has treated the

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terms interchangeably, including in this context, should be

disregarded. See, e.g., Philip Morris USA Inc. v. Martin, 262 So. 3d

769, 773 (Fla. 4th DCA 2018) (“[T]he terms ‘accrue’ and ‘arise’ are

synonymous with respect to when a cause of action comes into

existence . . . .”); Lumbermens Mut. Cas. Co. v. August, 509 So. 2d

352, 353 (Fla. 4th DCA 1987) (same), quashed on other grounds,

530 So. 2d 293 (Fla. 1988); Meehan v. Celotex Corp., 466 So. 2d

1100, 1102 (Fla. 3d DCA 1985) (citing examples of Florida cases in

which “the terms ‘arise’ and ‘arose’ have consistently been used

interchangeably with the terms ‘accrue’ and ‘accrued’ ”), quashed on

other grounds, 523 So. 2d 141 (Fla. 1988). We, of course, reject

that approach, as it would be far more sensible to presume the

Legislature was aware of the judicial usage of the two terms than to

presume the Legislature implicitly drew a sharp distinction between

the two terms in this context. Cf. Jones v. ETS of New Orleans, Inc.,

793 So. 2d 912, 917 (Fla. 2001) (“[T]he Legislature is presumed to

have adopted prior judicial constructions of a law unless a contrary

intention is expressed in the new version.” (quoting City of

Hollywood v. Lombardi, 770 So. 2d 1196, 1202 (Fla. 2000))).

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In any event, Mrs. Sheffield effectively treats the terms

synonymously. Namely, after noting that “arise” means to

“originate,” she asserts that “[t]his case plainly ‘originates,’ ‘stems’

or ‘results’ from Mr. Sheffield’s 1994 lung cancer.” But linking the

term “arise” to Mr. Sheffield’s lung cancer is just another way of

arguing that wrongful death causes of action “arise” when the

decedent’s own causes of action “accrue.” And as explained above,

we reject that argument.

Certified conflict cases

Mrs. Sheffield finally argues that the certified conflict cases,

which were decided based on reasoning she does not advance here,

“reached the correct result.” As outlined above, none of the certified

conflict cases drew any distinction between “arising” and “accruing”

or suggested that wrongful death “causes of action” can arise or

accrue before death. Instead, beginning with Allen, they largely

turned on the notion that “Engle-progeny cases are different.”

Allen, 228 So. 3d at 689. But the analysis underpinning Allen is

flawed. Accordingly, we disapprove Allen as well as the other two

certified conflict cases, which largely relied on Allen.

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As the Fifth District here aptly noted, Allen not only

erroneously focused on “manifestation” rather than when a cause of

action arises, but Allen additionally turned in part on a misreading

of In re Engle Cases. That case involved Engle progeny personal

injury actions in which the plaintiffs died but the personal

representatives failed to move to amend the complaints until after

the two-year limitations period for bringing wrongful death actions.

In re Engle Cases, 45 F. Supp. 3d at 1353. The federal district

court simply held “that the wrongful death claims in question

relate[d] back to the filing of the original [Engle progeny personal

injury] complaint” so as to not be “time barred.” Id. Nothing in In

re Engle Cases supports the proposition seemingly attributed to it

by Allen, namely that statutory amendments enacted after 1994 are

per se inapplicable in Engle progeny cases.

Allen also relied on a Fourth District decision that this Court

in Schoeff, 232 So. 3d 294, subsequently quashed. Schoeff held in

relevant part that the amended 2011 version of the comparative

fault statute, by its plain terms, governed that Engle progeny

wrongful death case and that the Fourth District had “improperly”

applied the 1994 version of the statute. Id. at 301. As the Fifth

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District here observed, the relevant teaching of Schoeff is that there

is no absolute bar preventing statutory amendments from applying

to Engle progeny cases. See Sheffield, 266 So. 3d at 1233 (“Engle-

progeny cases are no different than any other cases.”).

Lastly, Allen, citing this Court’s decision in Mancusi, held that

application of the 1999 amendments would impair “substantive

rights.” Allen, 228 So. 3d at 690. Here, Mrs. Sheffield presents no

such argument. For good reason. Mancusi simply does not support

the decision reached in Allen.

As an initial matter, Mancusi is distinguishable. In Mancusi,

the relevant issue was whether a 1987 amendment to the punitive

damages statute, made “effective October 1, 1987,” should apply to

a cause of action that “arose during September 1986.” Mancusi,

632 So. 2d at 1358. This Court declined to apply that amendment,

in part because the Legislature had not “clearly expresse[d] its

intent that the statute” be applied to existing causes of action. Id.

Here, of course, and in the certified conflict cases, the relevant

causes of action arose after the effective date of the 1999

amendments, which are clear in their scope.

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Moreover, Allen ignored important language in Mancusi

explaining that “a plaintiff’s right to a claim for punitive damages is

subject to the plenary authority of the Legislature.” Id. For that

proposition, Mancusi cited Gordon v. State, 608 So. 2d 800 (Fla.

1992), where this Court upheld the constitutionality of a statute

that required 60 percent of a claimant’s punitive damages award to

be payable to the State “[i]f the cause of action was based on

personal injury or wrongful death.” Id. at 801 (quoting

§ 768.73(2)(b), Fla. Stat. (Supp. 1986)). Gordon explained that “the

allowance of punitive damages is based entirely upon

considerations of public policy” and that “an inchoate claim for

punitive damages is subject to the plenary authority of . . . the

Legislature.” Id. (quoting Gordon v. State, 585 So. 2d 1033, 1035

(Fla. 3d DCA 1991)). And Gordon further explained that “[t]he right

to have punitive damages assessed is not property; and it is the

general rule that, until a judgment is rendered, there is no vested

right in a claim for punitive damages.” Id. at 801-02 (quoting Ross

v. Gore, 48 So. 2d 412, 414 (Fla. 1950)). 5 Because Allen’s

5. In 1994, the year in which, according to Mrs. Sheffield, the
causes of action here purportedly arose, the Legislature continued

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“substantive rights” analysis nowhere accounted for any of this

caselaw, we reject that analysis.

CONCLUSION

We hold that the relevant 1999 amendments to section 768.73

apply in Engle progeny wrongful death actions in which the

decedent died after the effective date of the amendments.

Accordingly, we approve the result in Sheffield and disapprove the

certified conflict cases of Allen, Evers, and Konzelman.

It is so ordered.

POLSTON, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ.,
concur.
LABARGA, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

to require that a portion of any punitive damages award “[i]n any
civil action” be paid to the State. See ch. 92-85, §§ 2-3, Laws of Fla.
(requiring that 35 percent of any such award be payable to the
State and establishing a repeal date of July 1, 1995); see also id. § 4
(making the relevant amendment applicable “to pending cases and
causes of action in which a judgment has not been entered”).

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LABARGA, J., dissenting.

The majority ignores the unique nature of Engle6 and treats

Engle progeny cases like traditional civil actions. In doing so, the

majority proceeds as if Engle progeny cases are completely divorced

from the procedural and substantive findings in Engle, and it

starkly contradicts what this Court has long held: Engle is different.

For these reasons, I dissent.

Because a jury has already made findings regarding general

causation, addiction of cigarettes, strict liability, fraud by

concealment, civil-conspiracy-concealment, breach of implied

warranty, breach of express warranty, and negligence, Engle

progeny cases are unlike other civil actions where the plaintiff is

required to prove the defendants’ common liability. Id. at 1255.

Entitled to the benefit of the extensive Engle findings, Engle progeny

plaintiffs need only address individual issues such as legal

causation, comparative fault, and damages. Id. at 1268. Engle

progeny wrongful death actions are, therefore, continuations of the

6. Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1255 (Fla.
2006).

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Engle litigation. See Philip Morris USA, Inc., et al., v. Douglas, 110

So. 3d 419, 432 (Fla. 2013) (“Engle allowed members of the

decertified class to pick up litigation of the approved six causes right

where the class left off . . . . [T]he claims in Engle and the claims in

individual actions . . . are the same causes of action between the

same parties . . . .”) (first emphasis added). This is precisely why we

acknowledged Engle was of “unprecedented significance,” Soffer v.

R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1227 (Fla. 2016)

(quoting Philip Morris USA v. Halgren, 124 So. 3d 350, 354 (Fla. 2d

DCA 2013)), with a “procedural posture . . . unique and unlikely to

be repeated.” Engle, 945 So. 2d at 1270 n. 12.

Sidestepping this Court’s precedent on the purported basis

that “we have not been asked to . . . opine on the correctness of

Engle or any of this Court’s Engle progeny decisions, including

Douglas,” majority op. at 19, the majority treats Engle progeny

cases as entirely new actions with entirely new trials. But, it is

clear these cases do not begin the litigation anew; the plaintiffs’

claims cannot be untethered from the class complaint, the Phase I

findings, or the substantive law underlying both. Notwithstanding

the Engle class’s decertification, class members’ claims—whether

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brought as personal injury or wrongful death causes of action—are

entitled to the res judicata effect of the Phase I findings—findings

made before the effective date of the 1999 amendments. See Engle,

945 So. 2d at 1256. Therefore, Engle progeny “causes of action,”

see section 768.73(5), Florida Statutes (1999), did not arise after the

1999 amendments.

It is undisputed that Mrs. Sheffield is a class member as

Mr. Sheffield’s “survivor,” and Engle resolved substantive elements

of her claims. Her causes of action could not have arisen in 2007

because she “pick[ed] up litigation of” the “same causes of action”

already partially litigated years earlier by “the same parties.”

Douglas, 110 So. 3d at 432. The “causes of action” here necessarily

arose before Mr. Sheffield’s 2007 death—not, as the majority

concludes, on the date of his death.

I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal
Certified Direct Conflict of Decisions

Fifth District - Case No. 5D17-2521

(Orange County)

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David J. Sales and Daniel R. Hoffman of David J. Sales, P.A.,
Sarasota, Florida; and Melvin B. Wright and Lisa Ann Thomas of
Colling, Gilbert, Wright & Carter, LLC, Orlando, Florida,

for Petitioner

William L. Durham II and Val Leppert of King & Spalding, LLP,
Atlanta, Georgia; Troy A. Fuhrman and Marie A. Borland of Hill
Ward Henderson, Tampa, Florida; and Charles R.A. Morse of Jones
Day, New York, New York, Jason T. Burnette and Brian Charles Lea
of Jones Day, Atlanta, Georgia, and Noel J. Francisco of Jones Day,
Washington, District of Columbia,

for Respondent

John S. Mills of Bishop & Mills, PLLC, Jacksonville, Florida,
Courtney Brewer and Bailey Howard of Bishop & Mills, PLLC,
Tallahassee, Florida; and Bryan S. Gowdy, on behalf of Florida
Justice Association, Jacksonville, Florida,

for Amici Curiae Florida Justice Association and Citizens
Against Cigarette Manufacturers

Scott A. Chesin of Shook Hardy & Bacon L.L.P., New York, New
York,

for Amicus Curiae Philip Morris USA Inc.

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