The Second District Court of Appeal recently issued an opinion, which examines when a filing constitutes “a statement of fact of death” under Florida Rule of Civil Procedure 1.260. That Rule provides that a motion for substitution may be “made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death . . .” Fla. R. Civ. P. 1.260(a)(1). Commonly, this is known as a “suggestion of death.” If no motion for substitution is made within 90 days after death is suggested, “the action shall be dismissed as to the deceased party.” Id.
In Blue, et al. v. R.J. Reynolds Tobacco Co., et al., No. 2D16-3007 (Fla. 2d DCA Jan. 19, 2018), the defendant argued that a “joint notice and stipulation” dropping certain defendants constituted “a statement of fact of death” under Rule 1.260 to trigger the 90-day time period to file a motion for substitution because the joint notice referenced a “deceased” party. The Second DCA found the passing reference was not enough to constitute “a statement of fact of death,” but it also determined that a formal “Suggestion of Death” was not required under Rule 1.260. The Court held: “Although the rule does not explicitly provide that a document be labeled as “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.”
While not required by Rule 1.260 or this Opinion, we recommend that the “statement of the fact of the death” of a party be filed as a “Suggestion of Death.” This will prevent any ambiguity or question going forward. One must also be cognizant of the fact that the 90-day time period to file a motion for substitution may run even in the absence of a formal “Suggestion of Death.” In determining whether a motion for substitution is timely, it is important to review the record to determine whether any filings were made that could be construed as an intent to alert the litigants of a party’s death.
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