Time waits for no one: the death of a litigant.

• Author: Elligett, Raymond T., Jr.

A litigant's death presents counsel representing the litigant or an opposing party with a variety of issues. Failure to react in a timely fashion to a litigant's death may lead to the lawyer becoming the next target.

Suggestions of Death and Substitution

Florida Rule of Civil Procedure 1.260(a)(1), generally sets forth the procedure to follow when a party dies during the course of litigation. (1)

The rule contemplates that upon the death of one of the litigants, the death should be "suggested upon record by service of a statement of the fact of the death." Although the rule does not specify who should file the suggestion of death, courts have held that where the legal representative of the decedent's estate has knowledge of the pendency of a suit against the deceased, it has the duty to inform the attorneys of record of the decedent's death. (2)

When a defendant dies during the pendency of a lawsuit, defense counsel likewise has an obligation to disclose promptly the status of the estate, the identity of the personal representative, or, where appropriate, the identity of the next of kin or successors in interest. (3)

The failure to file a suggestion of death may estop the decedent's estate from, for example, asserting the plaintiff's claim against the estate was untimely filed. (4)

Once a suggestion of death is made upon the record, "a motion for substitution of the proper party 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." (5)

Rule 1.260(a)(1) provides that the motion for substitution must be made within 90 days after the death is suggested upon the record. In Wilson v. Clark, 414 So. 2d 526,530 (Fla. 1st DCA 1982), the First District Court of Appeal held that the 90-day time period is triggered by the recording or filing of the suggestion of death, rather than by the service. (6)

The failure to serve the motion for substitution within the 90-day time period may result in the action being dismissed as to the deceased party. (7)

If a party is unable to procure substitution of the parties within the 90 days, that party may move for an enlargement of time pursuant to Fla. R. Civ. P. 1.090(b), or it may seek relief based on a showing of excusable neglect pursuant to Fla. R. Civ. P. 1.540(b). (8)

In New Hampshire Insurance Company v. Kimbrell, 343 So. 2d 107 (Fla. 1st DCA 1977), for example, the plaintiffs were served with notice of the defendant's death, were in fact aware of the death, and took steps to perfect their claim against the defendant's estate, but did not make any timely attempt to substitute the proper party in litigation as required by Rule 1.260. (9) The court held that the trial court's declaration of the suggestion of death as a nullity was incorrect, but remanded the case to determine if the plaintiff's failure to move for substitution within the 90-day time period was based on excusable neglect. The court suggested that the trial court consider whether the codefendant's answering the complaint misled the plaintiffs into proceeding against the parties as originally named, whether some unusual delay had been encountered in obtaining appointment of a personal representative, or whether the plaintiffs experienced difficulties in attempting to locate a successor or representative since the suggestion of death failed to name a successor or representative. (10)

A motion to substitute a party in the event of death is only proper when the claim is not extinguished by death. (11)

The death of an indispensable party abates the cause of action, resulting in the trial court's inability to adjudicate the rights of the parties without having all of the parties actually or constructively before it. (12) Substitution of the proper party is critical.

Florida's Wrongful Death Statute, for example, provides "the wrongdoer's personal representative shall be the defendant if the wrongdoer dies before or pending the action." (13) Trial counsel may need to associate competent probate counsel if an estate needs to be opened.

Where the personal representative may have a conflict of interest with the beneficiaries, the court may appoint a disinterested administrator ad litem to represent the estate and survivors. In Continental National Bank v. Brill, 636 So. 2d at 784 (Fla. 3d DCA 1994), the court found that a personal representative, who was also a survivor of the decedent with a stake in the allocation of the proceeds of a wrongful death settlement between the survivors and the estate, had such a conflict; the trial court erred by not appointing an administrator ad litem to represent both the estate and the survivors. (14)

Survival and Wrongful Death Actions

Addressing the death of a plaintiff in a personal injury case presents additional issues. At common law, contract actions and actions for wrongs to property survived a plaintiff's death, but actions for personal wrongs or personal injuries died with the plaintiff. (15)

Section 46.021, a Florida statute originating in the 1800s, abrogates the common law rule and provides: "No 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." (16)

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