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

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)

Section 46.021's absolute sounding rule interacts with Florida's wrongful death statute and case law. In the early 1970s, Florida revised its wrongful death act.

F.S. [subsections] 768.16 to 768.27 spell out who can sue and for what damages when the death of a person is caused by the wrongful act of any person, and the event would have entitled the person injured to maintain an action if death had not ensured. (17)

Section 768.20 says "when a personal injury to the decedent results in his death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate."

The Florida Supreme Court soon confirmed that [section] 768.20 means what it says. Martin v. United Security Services, Inc., 314 So. 2d 765 (Fla. 1975), holds the statute merges the survival action for personal injuries and the wrongful death action into one lawsuit.

The decedent's "survivors," defined by statute, become beneficiaries in the wrongful death action. (18) Martin held "the claim for pain and suffering of the decedent from the date of the injury to the date of death was eliminated." (19) It went on to observe the statute substitutes the survivors' claims for pain and suffering.

Martin also confirmed in a footnote that the survival statute still applied to preserve other actions that the decedent may have brought or was bringing prior to death. (20) Soon after Martin, the Second DCA in Smith v. Lusk, 56 So. 2d 1309 (Fla. 2d DCA 1978), held that a decedent's estate could maintain a survival action for the damages where death did not result from the injuries sustained. Other district courts have agreed. (21)

In other words, if the wrongdoer caused the death, any personal injury action abates and the personal representative may commence a wrongful death action. If the wrongdoer did not cause the death, the personal injury action for losses to the decedent while alive may proceed.

Smith v. Lusk also held the decedent's personal representative could plead alternative claims for pain and suffering for injuries not resulting in death, and for wrongful death damages. (22) This ability to advance alternative claims can be important for plaintiffs where there is a dispute over whether the original wrongful act ultimately caused the death.

Timing of a Plaintiff's Death

In Smith v. Lusk, the decedent died within two months of the alleged negligence, so the plaintiff's initial complaint asserted both the survival and wrongful counts. But what happens to a pending personal injury action.

Section 768.20 say a decedent's pending injury action abates. Taylor v. Orlando Clinic, 555 So. 2d at 879 (Fla. 5th DCA 1989), review denied, 567 So. 2d 435 (Fla. 1990), holds Rule 1.260 on substitution does not apply where the personal injury action did not survive, because the wrongful act allegedly caused the death. (23) The personal representative generally has two years from death to bring the wrongful death action. (24)

As with other aspects of tort law, special rules apply to medical malpractice actions. The medical malpractice statute of limitations applies to wrongful death actions. (25) The two years run from the time the malpractice should have been discovered, and not two years from the death. (26)

The statutes do not address how the personal representative would commence a "new" action if the "abated" medical malpractice action had been pending and it was over two years since the malpractice should have been discovered. Despite Taylor's statements that Rule 1.260 on substitution does not apply where the personal injury action caused the death, and that the rule addresses substituting parties and not causes of action, it appears courts do permit amendments to assert wrongful death and substitute personal representatives for deceased plaintiffs in such cases. (27)

Florida courts have addressed the death of a plaintiff in a personal injury action during or after trial. The Third DCA held the death of a plaintiff after the entry of judgment, but before termination of review of proceedings of that judgment, did not abate the action. (28) Subsequently, the Fourth DCA held the death of a plaintiff after the verdict, but before the entry of final judgment did not abate the personal injury action. (29)

By contrast, the death of a plaintiff during the trial abates the personal injury action. (30)

Consortium Claims

While the potential claims for the decedent's estate to advance now appear well-settled, a conflict exists over a spouse's loss of consortium claim. The wrongful death statute specifies a spouse may recover for loss of the decedent's companionship and pain and suffering from the date of the injury. (31)

The Fifth DCA in Taylor held the decedent's wife's action for loss of consortium should not have been dismissed when her husband died. The couple had filed a personal injury action alleging injuries to the husband from medical malpractice.

When the husband died, the defendant filed a suggestion of death. More than 90 days passed before the personal representative filed a motion to substitute a wrongful death action, and filed a separate wrongful death action. The trial court dismissed the personal injury action because the motion to substitute the death action had not been filed within 90 days, and dismissed the separate wrongful death action as an impermissible splitting of causes of action.

The Fifth DCA held the trial court was correct in denying the motion to substitute, but for the wrong reason. The appellate court ruled Rule 1.260 applies to permit substituting parties, not causes of action. (32)

The Fifth DCA reversed the dismissal of the new wrongful death action, holding the personal representative correctly began a new action, and that it did not constitute a splitting of causes of action. (33)

Taylor held the wife's claim for consortium survived her husband's death, and could proceed in the personal injury action. (34) The Third DCA certified conflict with Taylor on this point, in its decision in ACandS, Inc. v. Redd, 703 So. 2d at 494 (Fla. 3d DCA 1977).

Redd viewed the cases Taylor relied only as holding the loss of consortium-claim is "separate and distinct," not that it could exist absent a primary cause of action. Redd cited cases holding adverse determinations on the merits of the primary claim precluded the consortium claim. Redd also cited the language in [section] 768.21(2) that the surviving spouse in a wrongful death action can recover for loss of companionship and protection and for mental pain and suffering from the date of the injury.

Redd arose in an unusual posture, where the primary plaintiff in a case alleging product related injuries (mesothelioma) died during trial and the spouse elected to proceed to verdict with her consortium claim. Perhaps because the personal representative could still pursue the wrongful death claim, it appears the wife did seek Florida Supreme Court review based on the certified conflict.

While one would expect defenses to an action by the decedent to be available against the "derivative" wrongful death claim, the Fourth District held an insurance exclusion limited to the deceased did not apply to the personal representative. (35)

Timing of the PR's Suit and Relation Back

Several cases have addressed situations where the wrongful death action did not meet all the formalities of the wrongful death statute until after the two-year statute of limitations. (36)

In Talan v. Murphy, 434 So. 2d 207 (Fal.3d DCA 1983), the father of a deceased child filed a wrongful death action in an individual capacity within two years of the child's death. The Third DCA held he was entitled to amend after he was appointed personal representative, even though not appointed until the statute of limitations ran. (37)

In Estate of Retzel v. CSX Transportation, Inc., 586 So. 2d 1247 (Fla. 1st DCA 1991), review denied, 593 So. 2d 1051 (Fla. 1992), the deceased's stepmother obtained letters of appointment as the personal representative (PR), designating herself as the deceased's mother. The stepmother filed the wrongful death action. The defendant's petitioned the probate court to remove her as PR, which did so and issued an order that all her actions were void ab initio. The trial court then dismissed the wrongful death action, with over two years having elapsed since the death.

The First DCA reversed, and held the stepmother's subsequent appointment as PR related back to the filing of the complaint, and that she or any substituted PR duly appointed by the court was entitled to proceed with the wrongful death action. (38)

Because the best a representative can hope for is to get back to where he or she would have been if following all the formalities, it is best to have competent probate counsel proceed diligently when a plaintiff has died. Cases have permitted additional claims brought in a wrongful death action to relate back, but again, it is best to include all claims in the original complaint. (39)

(1) Rule 1.260(a)(1) reads 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 record by service of a statement of the fact of death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party."

(2) See, e.g., In Re Estate of Ortolano, 766 So. 2d 330, 333 (Fla. 4th D.C.A. 2000).

(3) Scutieri v. Miller, 584 So. 2d 15, 17 (Fla. 3d D.C.A. 1991); see Davis v. Evans, 132 So. 2d 476, 481 (Fla. 1st D.C.A. 1961), certiorari denied, 136 So. 2d 348 (Fla. 1961). See also Becker v. King, 307 So. 2d 855, 859 (Fla. 4th D.C.A. 1975), certiorari denied, 317 So. 2d 76 (Fla. 1975) (burden to file suggestion of death and motion for substitution not on trial court, but on successors or representatives of the deceased, or other party desiring substitution and notice of hearing under Rule 1.260).

(4) See, e.g., In Re Estate of Ortolano, 766 So. 2d at 333.

(5) FLA. R. Civ. P. 1.260(a)(1).

(6) Five-day extended period authorized by Rule 1.090(e) inapplicable to time provisions of Rule 1.260(a)(1). In Mutual of Omaha Insurance Company v. White, 554 So. 2d 12 (Fla. 3d D.C.A. 1989) ("White"), the Third District hinted disagreement with the holding in Wilson. That court concluded that a motion for substitution is timely if served or filed within 90 days after the suggestion of death. Although White noted that it did not have to decide whether the 90-day period runs from the date of filing or service of the suggestion of death because, in that case, the pleading was filed and served on the same date, it hinted that service of the suggestion of death was the operative event. Id., 554 So. 2d at 13 n.2.

(7) FLA. R. CIV. P. 1.260(a)(1). In O'Neal v. Midgette, 356 So. 2d 1261 (Fla. 2d D.C.A. 1978), a suggestion of death filed in a related suit by a person who was not a party to the instant suit did not activate the 90-day time period to file a motion for substitution even though the cases had been consolidated, and the plaintiff's attorney had received a copy of the suggestion of death. The trial court erred in dismissing the suit for failure to move to substitute the proper party defendant. Id., at 1262-1263.

(8) See Kash n'Karry Food Stores, Inc. v. Smart, 814 So. 2d 530, 532 (Fla. 2d D.C.A. 2002); Nationwide Mutual Fire Insurance Company v. Holmes, 352 So. 2d 1233, 1234 (Fla. 4th D.C.A. 1977); New Hampshire Insurance Company v. Kimbrell, 343 So. 2d 107, 109-110 (Fla. 1st D.C.A. 1977); King v. Tyree's of Tampa, Inc., 315 So. 2d 538 (Fla. 2d D.C.A. 1975).

(9) Rule providing that motion for substitution should be filed within 90 days after service of suggestion of death should be liberally construed.

(10) 343 So. 2d at 110. The Second District recently granted a petition for writ of certiorari and quashed a trial court's granting of a plaintiff's untimely motion for substitution, holding that the trial court departed from the essential requirements of law where there was no showing in the record of excusable neglect. The court observed the representations of counsel that the lack of formal administration of the estate precluded the appointment of a legal representative who could substitute as a party, without more, did not constitute excusable neglect. Kash N' Karry Food Stores, Inc., 814 So. 2d at 532-533.

(11) FLA. R. CIV. P. 1.260(a)(1). See also Gaines v. Sayne, 727 So. 2d 351,353 n.2 (Fla. 2d D.C.A. 1999), review granted, 744 So. 2d 453, (Fla. 1999), approved, 764 So. 2d 578 (Fla. 2000).

(12) See, e.g., Floyd v. Wallace, 339 So. 2d 653,654-655 (Fla. 1976),

(13) FLA. STAT. [section] 768.20 (2001).

(14) Id. at 784.

(15) E.g., Taylor v. Orlando Clinic, 555 So. 2d 876, 878 (Fla. 5th D.C.A. 1989), review denied, 567 So. 2d 435 (Fla. 1990).

(16) FLA. STAT. [section] 46.021 (2001).

(17) FLA. STAT. [section] 768.19 (2001).

(18) Section 768.18(1) defines survivors and [section] 768.21 specifies recoverable damages.

(19) Martin, 314 So. 2d at 769.

(20) Id. at 770 n.18.

(21) Tappan v. Florida Medical Center, Inc., 488 So. 2d 630 (Fla. 4th D.C.A. 1986); Williams v. Bay Hospital, Inc., 471 So. 2d 626 (Fla. 1st D.C.A. 1985).

(22) The First DCA agreed in Poole v. Tallahassee Memorial Hospital, Medical Center, Inc., 520 So. 2d 627 (Fla. 1st D.C.A. 1988), review denied, 528 So. 2d 1183 (Fla. 1988).

(23) See also Higgins v. Johnson, 422 So. 2d 16 (Fla. 2d D.C.A. 1982) (if plaintiff dies his personal injury action abates and the personal representative must institute a new suit on behalf of the survivors).

(24) Taylor, 555 So. 2d at 878, citing Nissan Motor Co., Ltd. v. Phlieger, 508 So. 2d 713 (Fla. 1987). Phlieger holds the wrongful death statute creates a new and independent cause of action. FLA. STAT. [section] 95.11(4)(d) (2001) prescribes a two-year statute of limitations for wrongful death actions.

(25) FLA. STAT. [section] 95.11(4)(b) (2001); Ash v. Stella, 457 So. 2d 1377, 1379 (Fla. 1984).

(26) Ash v. Stella, 457 So. 2d 1377, 1379 (Fla. 1984). Damages for wrongful death caused by medical malpractice are limited by FLA. STAT. [section] 768.21(8) (2001).

(27) See, e.g., Stewart v. Price, 718 So. 2d 205,207 (Fla. 1st D.C.A. 1998), approved, 762 So. 2d 475 (Fla. 2000). Taylor was not addressing a potential statute of limitations issue, and, as discussed below, has been certified to conflict with another decision on other grounds.

(28) Variety Children's Hospital, Inc. v. Perkins, 382 So. 2d 331 (Fla. 3d D.C.A. 1980).

(29) Kaufman v. Herrman, 748 So. 2d 310 (Fla. 4th D.C.A. 2000), review denied, 766 So. 2d 221 (Fla. 2000).

(30) ACandS, Inc. v. Redd, 703 So. 2d 492 (Fla. 3d D.C.A. 1997).

(31) FLA. STAT. [section] 768.21(2).

(32) Taylor, 555 So. 2d at 879.

(33) Id. at 879.

(34) Id. at 878.

(35) City of Pompano Beach v. T.H.E. Insurance Company, 709 So. 2d 603 (Fla. 4th D.C.A. 1998).

(36) The Fourth DCA has held that tolling based on fraudulent concealment applies to the wrongful death statute of limitations. Berisford v. Jack Eckerd Corporation, 667 So. 2d 809 (Fla. 4th D.C.A. 1995).

(37) Compare Infinity Insurance Company v. Berges, 806 So. 2d 504 (Fla. 2d D.C.A. 2001) (settlement offers not valid where offeror not appointed as personal representative or guardian when offers made).

(38) Retzel, 586 So. 2d at 1252. See also Cunningham v. Florida Department of Children and Families, 782 So. 2d 913 (Fla. 1st D.C.A. 2001), review denied, 797 So. 2d 585 (2001).

(39) Peters v. Mitchel, 423 So. 2d 983 (Fla. 3d D.C.A. 1982) (claim on behalf of the minor child based on the death of his father related back to the date of the original wrongful death action); Dye v. Houston, 421 So. 2d 701 (Fla. 1st D.C.A. 1982); but see School Board of Broward County v. Surette, 394 So. 2d 147 (Fla. 1st D.C.A. 1981); compare West Volusia Hospital Authority v. Jones, 668 So. 2d 635 (Fla. 5th D.C.A. 1996)(could not amend to bring consortium claim); Cox v. Seaboard Coast Line Railroad Company, 360 So. 2d 8 (Fla. 2d D.C.A. 1978), certiorari denied, 367 So. 2d 1123 (Fla. 1979) (trial court did not abuse its discretion in holding minor son could not amend wrongful death action brought on behalf of his parents to assert his own personal injury action, which was different cause of action).

Tom Elligett and Amy Farrior are board certified appellate lawyers and shareholders in Schropp, Buell & Elligett, P.A., Tampa. Tom Elligett is a former chair of The Florida Bar Appellate Practice Section and author with Judge John M. Scheb of Florida Appellate Practice 2d ed. Amy Farrior is a current member of the Hillsborough County Bar Association and Trial Lawyers Section Boards of Directors.

This column is submitted on behalf of the Trial Lawyers Section, Dominic Caparello, chair, and Thomas P. Barber, editor.
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Author:Elligett, Raymond T., Jr.; Farrior, Amy S.
Publication:Florida Bar Journal
Date:Nov 1, 2002
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