This party's dead! But will the lawsuit survive?

• Author: Galler, Jonathan A.
• Position: Florida

Somewhere along the bustling and congested roadways of our procedural rules of court sits a particularly dangerous intersection. The road signs here are complex, and there are not many traffic cops in sight to assist. Welcome to the legal junction that is created when a party to a pending litigation dies. It is located at the corner of the Florida Probate Code and the Florida Rules of Civil Procedure--each a busy thoroughfare in its own right. Only the most alert lawyers are likely to traverse this crossing safely.

Part of what makes this a tricky intersection, of course, is that civil litigators are often unfamiliar with the probate rules, and even experienced probate lawyers may not be very well-versed in the rules of civil procedure. When a party to a pending litigation dies, important components of both sets of procedures come into play, but the challenges are not merely the result of a lawyer in one field navigating across the terrain of another. Even a probate lawyer's otherwise routine commute through the tried-and-true creditors' claims process, for example, can suddenly become riddled with detours when it turns out that the decedent was embroiled in litigation. Similarly, civil litigators can hit unexpected potholes when they find themselves prosecuting a breach of contract or other civil action against a dead party.

Safe passage, however, is available. In brief, lawyers faced with the death of a party must travel down two procedural roads: 1) the substitution process, governed by the Florida Rules of Civil Procedure; and 2) the creditors' claims process, governed by the Florida Probate Code. These procedural rules, and the ways in which they intersect (or collide) in this context, are explored in detail below. First, we examine the substitution process, including some of the questions regarding that process that remain unanswered. Next, we explore the creditors' claims process, paying particular attention to novel questions that arise when the decedent was a litigant at the time of his or her death. Finally, as in all legal matters, various exceptions apply, and unusual circumstances can arise depending on the type of litigation pending. These, too, are examined.

Florida's Survival Statute

As a preliminary matter, Florida's survival statute, F.S. [section]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. However, a cause of action can be inadvertently extinguished by failure to comply with the rules.

Although this article concerns the death of a party to a pending litigation, it is worth noting that the Florida Probate Code also addresses the limitations periods for causes of action that have not yet been commenced at the time of a party's death. F.S. [section]733.104(1) provides that when a person dies before the expiration of the limitations period for his or her cause of action, the action may be commenced by the decedent's personal representative "before the later of the expiration of the time limited for the commencement of the action or 12 months after the decedent's death." F.S. [section]733.104(2) provides that when a person dies before the expiration of the limitations period for a cause of action that could have been asserted against him or her, the cause of action will be deemed timely so long as a statement of claim is timely filed against the decedent's estate in the applicable probate proceedings.

Rules of Civil Procedure--Substitution of Parties

Fla. R. Civ. P. 1.260(a)(1) provides as follows:

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. Simply put, the rule provides that if a party dies, and the pending cause of action is not thereby extinguished, the court may order the substitution of the proper parties. Importantly, courts have held that the public policy of the rule is to "facilitate the rights of persons having lawful claims against estates being preserved, so that otherwise meritorious actions will not be lost." (1) The motion for substitution may be filed by any party or by the attorney, successors, or representatives of the deceased party. (2) Not surprisingly, though, the motion is typically made by the plaintiff or its representative.

The most readily apparent choice for a substitute is the decedent's personal representative, but a curator or administrator ad litem are valid options as well. (3) That flexibility is sensible because it can take months before a personal representative is appointed. Moreover, the court presiding over the civil litigation cannot compel the opening of an estate for the deceased party. (4) That task falls to the probate court, the filing of a petition for administration by the plaintiff or another interested person. (5)

* The 90-Day Rule--At the...