1. When a defendant in a civil suit passes away, the cause of action is not extinguished by their death.
2. If a defendant dies before a lawsuit is filed, the personal injury action can be brought against the defendant’s personal representative in a pending action.
3. Florida’s survival statute ensures that all causes of action survive and may be pursued in the name of the person prescribed by law, even if the defendant passes away during the lawsuit.
4. The plaintiff must move to substitute the defendant’s estate within 90 days of the filing of a Notice of Suggestion of Death, or else the action may be dismissed. 1. Florida Rules of Civil Procedure 1.260(a)(1) governs the substitution of a party after the death of a party.
2. The suggestion of death triggers a 90-day window for substitution to occur.
3. If a party fails to file a Motion for Substitution within 90 days, the action may be dismissed at the request of the opposing party.
4. A plaintiff may argue for relief from dismissal due to excusable neglect but must show that they made some effort to comply with the rules.
5. Courts will liberally apply the rules when the party against whom dismissal is sought made some effort to comply. 1. A Motion to Substitute Parties must be filed within 90 days of a party’s death, regardless of the opening of the party’s estate or the appointment of a personal representative.
2. The failure to open a probate estate or appoint a legal representative of the deceased’s estate within 90 days is not a valid excuse for not filing a Motion to Substitute Parties.
3. Reliance on the status of the deceased’s estate is not considered excusable neglect for not filing a timely Motion to Substitute Parties.
4. The court may not grant an extension of time to substitute a party if no formal administration of the deceased’s estate has occurred, as stated in the Smart case.
5. Extenuating circumstances or unforeseen complications related to the deceased’s estate are not grounds to avoid dismissal, as indicated in the Lacey case. – The plaintiff’s widow in RJ Reynolds Tobacco defeated dismissal when she was not substituted as the proper party after her husband’s death due to extenuating hardship.
– In De La Riva v. Chavez, any filing after the suggestion of death are a legal nullity.
– In the civil case, the plaintiff in De La Riva v. Chavez failed to properly substitute the defendant estate and the personal representative of Todd’s estate, despite the probate court naming Lian de la Riva as the curator of Todd’s estate. 1. The plaintiff in De La Riva filed a proposal for settlement (PFS) identifying the estate of James P. Todd as the party defendant.
2. The trial court granted the defendant’s Motion to Dismiss without prejudice and ordered the plaintiff to properly substitute the estate as the party defendant.
3. The plaintiff’s failure to properly file a Motion to Substitute Party pursuant to FRCP 1.260 nullified the pleadings filed with the court after the filing of the Suggestion of Death. The court found that simply adding the estate to the pleadings is not enough. The personal representative of the estate must be the proper party in the litigation. If the proper party is not substituted in a timely manner after a defendant’s death, the court may dismiss the action. It is important to follow the proper procedure for substitution of parties in cases involving a deceased defendant. For legal assistance in such matters, contact William Pratt at wpratt@roiglawyers.com.
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