R.J. Reynolds Tobacco Co. v. Konzelman, 248 So. 3d 134 (2018)

May 9, 2018 · District Court of Appeal of Florida, Fourth District · No. 4D16–4310

248 So. 3d 134

R.J. REYNOLDS TOBACCO COMPANY, Appellant,
v.
Alan KONZELMAN, As Personal Representative of the Estate of Eleanor Konzelman, Appellee.

No. 4D16-4310

District Court of Appeal of Florida, Fourth District.

[May 9, 2018]

Ashley C. Parrish of King & Spalding, LLP, Washington, D.C., and William L. Durham II and Val Leppert of King & Spalding LLP, Atlanta, Georgia, for appellant.

John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, and Eric S. Rosen of Kelley Uustal, PLC, Fort Lauderdale, for appellee.

Per Curiam.

Appellant R.J. Reynolds raises several issues on appeal, and we affirm as to all of them. With regard to the applicable punitive damages statute, we agree with the First and Second District Courts of Appeal in holding that the pre-1999 version of section 768.73, Florida Statutes, applies in an Engle progeny personal injury suit that is converted into a wrongful death action upon the smoker's death. See R.J. Reynolds Tobacco Co. v. Allen for Estate of Allen , 228 So.3d 684, 689-90 (Fla. 1st DCA 2017) ; R.J. Reynolds Tobacco Co. v. Evers , 232 So.3d 457, 462-63 (Fla. 2d DCA 2017) ; see also R.J. Reynolds Tobacco Co. v. Buonomo , 138 So.3d 1049, 1052 (Fla. 4th DCA 2013) (noting that parties did not dispute applicability of pre-1999 version of punitive damages statute), quashed on other grounds sub nom. , 41 Fla. L. Weekly S113, 2016 WL 374082 (Jan. 26, 2016).

With regard to the issue raised on cross-appeal, we find that the trial court erred in reducing the compensatory award based on comparative fault. See Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 305 (Fla. 2017). We therefore reverse and remand for further proceedings consistent with the Florida Supreme Court's opinion.

Affirmed in part, reversed in part, and remanded for further proceedings.

Levine, Conner and Forst, JJ., concur.