The 90-day time limit for moving to substitute parties under Florida Rule of Civil Procedure 1.260 does not apply when the personal representative of an estate dies

Estate of Morales v. Iasis Healthcare Corporation, 2005 WL 1107067 (Fla. 2 DCA May 11, 2005) (Trial Court Reversed)

Normally, Florida Rule of Civil Procedure 1.260 requires that a plaintiff be substituted in a pending lawsuit within 90 days after the original plaintiff’s death is “suggested on the record.” Failure to comply with this deadline results in dismissal of the pending lawsuit. In this case, the personal representative of the estate died while a medical malpractice lawsuit was pending. Pinellas County Circuit Court Judge James R. Case dismissed the pending malpractice lawsuit under Civil Procedure Rule 1.260 because the estate’s successor personal representative did not file a motion for substitution within 90 days of the suggestion of death.

The Second DCA reversed the trial court on two grounds. First, Civil Procedure Rule 1.260 does not apply to personal representatives because the estate and its survivors are the real parties in interest – not the personal representative. As the Second DCA noted, “the personal representative may die, but the estate does not.” Second, Civil Procedure Rule 1.260 is not needed in the probate context because Florida Probate Code Section 2004->Ch0733->Section%20307#0733.307″>733.307 already provides “an appropriate mechanism for handling the affairs of the decedent.”