PBCBA BAR BULLETINS pbcba_bulletin_april 2018 - Page 15

PERSONAL INJURY C o r n e r Suggestion of Death TED BABBITT Many lawyers are not aware that upon the death of a party and the filing of a suggestion of death under Fla. R. Civ. P. 1.260(a)(1) the attorneys representing the deceased party have only 90 days to file a motion to substitute the estate of the decedent. Fla. R. Civ. P. 1.260(a) (1) states the following: If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. . . . 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 thedeath in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party. In Blue and Cooper v R.J. Reynolds Tobacco Co., 43 Fla. L. Weekly D195 (Fla. 2nd DCA 2018), the Second District was faced with the question of whether a case could be dismissed when a formal suggestion of death under this rule was not filed but there was a reference to the death in a pleading and the substitute plaintiff was aware of the death. In this case, the plaintiff died in 2013 and in March of 2014 a notice was filed by all of the parties notifying the Court that the case had been settled and two of the parties were being dropped as defendants. In the stipulation the following language was used “COMES NOW, the Plaintiffs, Yvonne Blue and Deborah Cooper, as Proposed PR[s] for the Estate of Ramona Leonard, deceased. . . .” Thus, the pleadings established the death of the plaintiff even though no formal suggestion of death was filed under the rule. A motion to substitute the decedent’s estate was not filed until September, 2015, over a year after the joint notice and stipulation established the death of the plaintiff. The tobacco company defendants filed a motion to dismiss arguing that since the death had been suggested on the record even without a formal suggestion of death the motion to substitute was untimely and the plaintiff should be dismissed. The trial court denied the motion to substitute and granted the motion to dismiss with prejudice against the deceased Plaintiff. The Second District reversed holding that the rule contemplated a formal suggestion of death to be filed before the ninety day period begins to run. At Page D195 the Court held: We do not construe the passing reference to Ms. Leonard’s death – which was made withina document that related to a settlement withother defendants – as a suggestion of deathas contemplated in rule 1.260(a)(1). Rather, we construe rule 1.260 to require the filing ofa document that is intended to notify all of the litigants of a party’s death. Cf. Wilson v. Clark, 414 So. 2d 526, 530 (Fla. 1st DCA 1982 interpreting the words “upon the record” in rule 1.260 to mean that the time period set forth in the rule is triggered “by the recording or th