Suggestion of Death

Published: April 2018
By: 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 the death 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 within a document that related
to a settlement with other defendants – as a suggestion of death as contemplated in rule 1.260(a)(1).  Rather, we construe
rule 1.260 to require the filing of a 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 the filing of the suggestion of death”
rather than by the service of the pleading).

The above-cited rule states that unless the motion for substitution is made within ninety days after the death is suggested upon the record by service of a statement of the fact of death in the manner provided for the service of motion, the action shall be dismissed as to the deceased party.

The defendants unsuccessfully argued that the rule only requires that  parties be notified of the death by any pleading and that a formal suggestion of death is not required to start the 90 day period.  At D196 the Court holds:

Although the rule does not explicitly provide that a document be labeled a “Suggestion of Death,” We construe the rule to,
at the very least, require that the document be filed for the purpose of alerting the litigants to a party’s death.  Burying the
fact of a party’s death in a document that is filed for another purpose cannot possibly comport with the intent of the rule since
the opposing party could merely bury the statement in any document within the record and then wait out the ninety-day period
to execute their “gotcha” move.  The purpose of the rule is to“allow more flexibility in substitution” and “[t]he [ninety-] day period
was not intended to act as a bar to otherwise meritorious actions.” Kimbrell, 343 So. 2d at 109 (quoting Rende v.Kay, 415 F. 2d 983, 986 (D.C. Cir. 1969),
and agreeing that the same liberal construction applied in Rende should be applied to rule1.260).

The Court did not accept the argument that the plaintiff was aware of the death of the party and, that therefore, the 90 day period should begin from the first pleading filed establishing that death.  At D196 the Court holds:

We are cognizant of the fact that in this case, Blue and Cooper were obviously aware of Ms. Leonard’s death as they,
along with Liggett and Vector, jointly filed the joint notice and stipulation of dropping defendants. But we reject the tobacco
companies’ argument that personal knowledge of a party’s death is sufficient to trigger the ninety-day period.  Instead, it is the
filing of a document (i.e., a suggestion upon the record) for the purpose of alerting the litigants of the party’s death that triggers
the time period set forth in rule 1.260(a)(1).  If the tobacco companies wanted the ninety-day period to begin running, they had
the ability to file a document for that purpose.  But the tobacco companies are not entitled to a dismissal based on a passing reference
to a party’s death in a document that was filed for a completely different purpose.  Consequently, because the trial court erred by
dismissing the complaint for failure to comply with rule 1.260(a)(1), we reverse and remand for proceedings in conformance with this opinion.

Lawyers must be aware of the existence of Fla. R. Civ. P. 1.260(a)(1).   While the Second District held in this case that a formal suggestion of death was necessary before the 90 day period begins to run, any time a party dies and a suggestion of death is filed under the rule, the 90 day period is strict and dismissal will occur unless the decedent’s estate moves to be substituted within the 90 day period.

 

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