Court says YES to dismissal of personal injury action based on plaintiff’s failure to file a timely motion to substitute a party defendant within 90 days after a suggestion of death was filed

Martin v. Hacsi, 2005 WL 1842678 (Fla. 5th DCA August 5, 2005) (Trial Court Affirmed) Counsel for the defendant in a personal injury action filed a motion for enforcement of Florida Rule of Civil Procedure 1.260(a) based on the plaintiff’s failure to move to substitute a party defendant within 90 days after a suggestion of death was filed. Sumter County Circuit Court Judge Hale R. Stancil granted the motion and dismissed the lawsuit. On appeal, the 5th DCA affirmed, providing some very helpful guidance along the way for plaintiffs trying to figure out what to do when a defendant dies and no personal representative is appointed. The 5th DCA noted that a plaintiff does not have to wait to move to substitute a party defendant until after a personal representative has been appointed for the deceased defendant’s estate. Instead, a plaintiff can simply rely on 2005->Ch0049->Section%20071#0049.071″>F.S. § 49.071 and 2005->Ch0049->Section%2008#0049.08″>F.S. § 49.08 to effectuate constructive service of process on the unknown personal representative. By the way, this strategy wont work against a personal representative. I wrote about this distinction earlier this year in this post.