A recent opinion by a Florida appellate court considered whether a case was properly dismissed after the plaintiff substituted the defendant’s estate after the defendant’s death. The plaintiff initially filed a complaint naming a man as the defendant; however, the plaintiff later learned that the man had died. The case deals with how a plaintiff must proceed in the event that they need to substitute a party in a Florida personal injury case.
Under Rule 1.260(a)(1), if a defendant dies and the plaintiff’s claim can continue, the defendant may be substituted for an appropriate party. According to the rule, a motion to substitute must be made within 90 days of the suggestion of death on the record in court. Failure to file a motion to substitute within 90 days will result in a dismissal of the claim against the deceased party.
Here, after the plaintiff learned the defendant had died the plaintiff filed a suggestion of death and a motion to substitute the man’s estate as a party. However, at that time the deceased defendant’s estate had not been officially opened. The attorney appointed to the estate defended the case for over two years. However, the estate later filed a motion to dismiss, arguing that the plaintiff did not adequately substitute the estate as a defendant because the estate had not been opened before the plaintiff filed the motion to substitute. The trial court dismissed the case, and the plaintiff appealed.