R.J. REYNOLDS TOBACCO COMPANY v. ALAN KONZELMAN, etc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

R.J. REYNOLDS TOBACCO COMPANY,
Appellant,

v.

ALAN KONZELMAN,
as Personal Representative of the Estate of Eleanor Konzelman,
Appellee.

No. 4D16-4310

[May 9, 2018]

Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy III, Judge; L.T. Case
Nos. 08-19620 (19) and 08-80000 (19).

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 (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.

* * *

Not final until disposition of timely filed motion for rehearing.

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