MIAMI -- A Florida state appeals court reversed an order to dismiss an Engle-progeny action with prejudice and revived a case concerning the death of a smoker.

Chief Justice Lesile Rothenberg and Justices Kevin Emas and Robert Luck reversed a trial court’s order to dismiss the motion by by R.J. Reynolds Tobacco Company and Philip Morris USA Inc. the complaint brought against them by Jerry Feller, who passed away while his Engle-progeny1 action was pending, according to the Feb. 14 opinion.

“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties,” Rothenberg wrote. “The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in Rule 1.080 and upon persons not parties in the manner provided for the service of a summons.”

The trial court ruled in favor of the tobacco companies, alleging . Feller’s counsel did not file the action within the ninety days, which then turned the motion for substitution to moot. That is no longer the case, according to Judge Rothenberg, who explained why the Third District Court of Appeal reversed the ruling based from Feller’s death April 30, 2015.

After his death, Fuller's counsel contacted the tobacco companies; but they did not properly record his death, and the trial order was vacated.

"The process of opening Mr. Feller’s estate has been initiated but objections have been filed which complicated and slowed the process," Rothenberg wrote. The plaintiff files this notice of record activity to demonstrate to the court that this case should not be dismissed for failure to put forth sufficient record activity.” 

Matters become more confused on April 15, 2016, when Feller’s wife, Linda Seltzer “filed a motion to substitute a party, to change the style of the case, and to amend the complaint [initial motion for substitution],” Rothenberg wrote.

However, her request for appointment was objected to by Feller’s children, which caused the widow's motion for substitution to become “futile,” which became the tobacco companies main defense argument.

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