South Florida Injury Attorneys Blog
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.
The appellate court held that because the motion to substitute was filed within 90 days, the case should not have been dismissed. The court explained that, instead, the case should have been abated until the proper legal representative had been substituted. The court noted that although the trial court could have dismissed the lawsuit, there was no evidence that the plaintiff’s failure to open the estate was deliberate, and that it was more likely the result of a miscommunication or misunderstanding. Therefore, the court explained that dismissal of the plaintiff’s case was too extreme a remedy.
Substituting a Party in a Florida Personal Injury Case
Generally, every claim has to be filed against the real party in interest to a case. In some cases, however, a motion for the substitution of a party can be submitted to replace a named party. For example, it may be appropriate if a party becomes incompetent, if there is a transfer of interest, or if a party dies.
If a party dies and the claim can continue, the court can substitute the proper party. Any party to the case, or a successor or representative of the deceased party, can file a motion for substitution within 90 days after “the death is suggested upon the record by service of a statement of the fact of the death.” If a suggestion of death is made on the record, the failure to file and serve a motion for substitution within 90 days may result in a dismissal of the claim — although the period may be extended in some cases.
Contact a Florida Personal Injury Lawyer
If you have been injured in a Florida car accident or other personal injury accident, the injury lawyers at Cecere Santana, PA may be able to help. Cecere Santana, PA is composed of personal injury lawyers who are committed to providing dedicated representation to residents throughout the Fort Lauderdale region. We will work tirelessly on your behalf to pursue the maximum recovery available. To schedule a meeting, call us at 800-753-5529 or fill out our online form.
See Additional Blog Posts:
Florida’s Dog Bite Law – Who’s Responsible?, South Florida Injury Attorneys Blog, October 30, 2018.
Three Killed in Florida Roadside Accident, South Florida Injury Attorneys Blog, published November 12, 2018