The Defendant Died…Now What?

Sometimes during litigation, a defendant in civil suit may pass away. If so, a cause of action is not extinguished by virtue of the defendant’s death. However, a cause of action can be extinguished by failure to comply with the Florida Rules of Civil Procedure (FRCP), which govern these circumstances.

When a defendant dies prior to the lawsuit being filed, Florida Statutes §768.20 states that a personal injury action against the defendant survives the defendant’s death and should be brought against the defendant’s personal representative in a pending action.

When a defendant dies during a lawsuit, Florida’s survival statute (F.S. §46.021) provides that “[n]o cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.” In other words, a cause of action is not extinguished by virtue of a party’s death.

Once a defendant passes away during litigation, Florida Rules of Civil Procedure 1.260 require that 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 shall be dismissed against the deceased party. Should a plaintiff fail to timely move for substitution, the defendant may move for a dismissal pursuant to Florida Rules of Civil Procedure 1.420(b), which states any party may move for dismissal of an action for an adverse party’s failure to comply with these rules.

Substitution of a party after the death of a party is governed by Florida Rules of Civil Procedure 1.260(a)(1). This statute provides: 

(a)     Death.  (1)     If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. 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. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

The suggestion of death is the triggering mechanism for the 90-day window to begin to run, during which the substitution must occur. Following the suggestion of death, counsel for a deceased party may move to dismiss the action if a motion for substitution has not been made after the expiration of the 90-day deadline.

Should a plaintiff not comply with timely filing a Motion for Substitution within 90 days of the filing of the suggestion of death and the defendant moves for a dismissal, a plaintiff may attempt to argue that it should be relieved from such dismissal due to excusable neglect. Florida Rules of Civil Procedure 1.540(b) provides that on a showing of excusable neglect a party may be relieved from dismissal. However, relief under this rule is not appropriate should a party completely fail to take action.

Courts will liberally apply the rules when the party against whom dismissal is sought made some effort to comply. See Scott v. Morris, 989 So. 2d 36 (Fla. Dist. Ct. App. 2008). In Scott, the Court held that plaintiff’s motion asking defense counsel to identify the proper party to be substituted was sufficient to satisfy the rule requiring a motion for substitution. However, a party may not avoid dismissal after having done nothing.

The requirements that a Motion to Substitute Parties must be filed within 90 days of the party’s death does not require opening of parties’ estates or designation of a personal representative of the estate within 90 days. The absence of a known personal representative is no excuse for not filing a timely motion to substitute. See Eusepi v. McGruder Eye Ist., 937 So. 2d 795, 798-799 (Fla. Dist. App. 2006).

In Eusepi, the court held that the rule requiring that a Motion to Substitute Parties be filed within 90 days of a party’s death did not require opening of the estate and appointment of a personal representative of the estate within 90 days of suggestion of death. This is since it is not uncommon for the deceased successor in interest to not be apparent or easily contacted, or for the deceased to be a defendant whose relationships are unknown or family members have no interest in facilitating the litigation. See Martin v. Hacsi, 909 So. 2d 935, 937 (Fla. 5th DCA 2005).

A plaintiff may attempt to argue excusable neglect because the deceased estate did not timely open a probate estate. Reliance on the status of the decedent’s estate is not grounds for excusable neglect. See Kash N’ Karry Food Stores, Inc. V. Smart, 814 So. 2d 530, 532 (Fla. Dist. Ct. App. 2002).

In Kash N’ Karry, the plaintiff did not file a Motion for Substitution or for Enlargement of Time prior to the expiration of the 90-day period. Id. at 532. The court also could not identify any showing of excusable neglect, as the only explanation in the record for requesting an extension of time to substitute the party is contained in counsel’s motion, wherein he asserted that “[n]o formal administration of the plaintiff’s estate had occurred thus precluding the appointment of a legal representative and thus a successive party.” Id. at 532. The 2^nd District Court of Appeal held that the trial court departed from the essential requirements of law in allowing the substitution of party and in failing to grant Kash N’ Karry’s motion to dismiss with prejudice. Id. at 533.

Additionally, extenuating circumstances may not avoid dismissal. See RJ Reynolds Tobacco Co. v. Lacey, 2767 3d 103 (Fla. Dist. Ct. App. 2019).

In RJ Reynolds Tobacco, the plaintiff’s widow defeated dismissal when she was not substituted as the proper party after her husband’s death. She explained her extenuating hardship to the court, including two significant surgeries after her sole counsel had withdrawn and her successor counsel was also hospitalized. Here, the defendant was not aware of any such circumstances affecting the plaintiff’s ability to move the court in a timely fashion. In addition, ignorance of the law is not grounds for excusable neglect.

Any filing after the suggestion of death are a legal nullity.  See De La Riva v. Chavez (Fla. App. 2020).

In De La Riva, the plaintiff filed a lawsuit against James P. Todd, however, Todd passed away five months after the suit was filed. Counsel for Todd timely filed a suggestion of death. The next day, the plaintiff requested that the estate of James P. Todd be substituted as party defendant. After receiving no information as to the status of the estate, the plaintiff filed a Motion to Compel seeking defense counsel to disclose the status of the Todd estate. The trial court ordered the plaintiff to “properly set up estate for defendant” and to “substitute the defendant estate” for defendant Todd. In the meantime, the Todd estate was open in probate court, and no personal representative was appointed.

Nonetheless, in the civil case the plaintiff filed an amended complaint identifying “John Doe” as the personal representative of Todd’s estate and substituting “John Doe” for Todd as the party defendant. Thereafter, the complaint was served on defense counsel but not on any representative of the estate. Even after the probate court named Lian de la Riva as curator of Todd’s estate, with full authority to defend and initiate all lawsuits on behalf of the estate, the plaintiff failed to substitute Lian de la Riva for “John Doe” as the party defendant in the personal injury case.

In De La Riva, the plaintiff filed a proposal for settlement (PFS). The PFS identified the estate of James P. Todd as party defendant, it was emailed to State Farm counsel and Lian de la Riva. Thereafter, the defendant apparently filed a Motion to Dismiss for the plaintiff’s failure to properly substitute the party defendant. 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. The next day, the plaintiff filed its second amended complaint identifying the defendant as “Lian de la Riva, Esq., as Curator of the Estate of James P. Todd, deceased.”

After the trial, the plaintiff filed a motion for attorney’s fees and costs pursuant to the previously filed PFS. The defendant opposed the plaintiff’s motion arguing that the prior PFS was a legal nullity because the first amended complaint failed to properly name the curator as the defendant.

In De La Riva, the Fourth District Court of Appeals analyzed Florida Rule of Civil Procedure 1.260(a)(1) and found that “If an indispensable party to an action dies, ‘the action abates until the deceased party’s estate, or other appropriate legal representative, has been substituted pursuant to [R]ule 1.260(a)(1).’” Schaeffler, 38 So. 3d at 799 (quoting Cope v. Waugh, 627 So. 2d 136, 136 (Fla. 1st DCA 1993)).

Moreover, in De La Riva, the Fourth District Court of Appeals stated “[f]ailure to substitute the proper representative or guardian nullifies subsequent proceedings.” Id. at 800; see also Ballard v. Wood, 863 So. 2d 1246, 1249 (Fla. 5th DCA 2004) (finding that a failure to substitute pursuant to Rule 1.260(a)(1) nullified the subsequent proceedings). De La Riva v. Chavez (Fla. App. 2020). As a result, a plaintiff’s failure to properly file a Motion to Substitute Party pursuant to FRCP 1.260 nullifies the pleadings filed with the court after the filing of the Suggestion of Death.

Simply amending the pleadings to add the estate is not sufficient. In De La Riva, the Fourth District Court of Appeals stated “[i]t is well-settled that ‘an “[e]state” is not an entity that can be a party to litigation. It is the personal representative of the estate, in a representative capacity, that is the proper party.” De La Riva citing Spradley v. Spradley, 213 So. 3d 1042, 1045 (Fla. 2d DCA 2017) (quoting Ganske v. Spence. 129 S.W. 3d 701, 704 n.1 (Tex. App. 2004)). “[O]nly when the proper party is in existence may it then be properly served and substituted….” Stern v. Horwitz, 249 So. 3d 688, 691 (Fla. 2d DCA 2018). Id.

In De La Riva, the court found that the PFS was a legal nullity and invalid due to the plaintiff’s failure to follow proper procedure of FRCP 1.260(a)(1). Because there was not a proper substitution of the party, the PFS filed was a legal nullity as the party which the PFS was addressed was not properly before the court when the PFS was filed, and as a result, the PFS was a legal nullity.

FRCP 1.260(a)(1) states a court shall dismiss an action for failure of a plaintiff to timely seek substitution of a deceased defendant within 90 days of the filing of a suggestion of death. Understanding these rules and cases may assist in obtaining a dismissal of a suit after a defendant dies and a plaintiff fails to act properly in substituting a party as the defendant in the case.

If you’re involved in a matter in which the defendant has died and you’re uncertain about the next steps, contact William Pratt at wpratt@roiglawyers.com.