New Hampshire Ins. Co. v. Kimbrell
| Decision Date | 11 March 1977 |
| Docket Number | No. BB--373,BB--373 |
| Citation | 343 So.2d 107 |
| Parties | NEW HAMPSHIRE INSURANCE COMPANY, Petitioner, v. Jimmie S. KIMBRELL, as Administrator of the Estate of Lori Ann Kimbrell, Deceased, and for the use and benefit of Jimmie S. Kimbrell, and Ann M. Kimbrell, natural parents of Lori Ann Kimbrell, Deceased, Respondent. |
| Court | Florida District Court of Appeals |
Benjamin W. Redding of Barron, Redding, Boggs & Hughes, Panama City, for petitioner.
Richard H. Powell of Estergren, Fortune, Anchors & Powell, Harry E. Barr, Fort Walton Beach, for respondent.
Petition for writ of certiorari is sought as to the trial court's interlocutory order rendered March 5, 1976, denying the defendant's motion to dismiss.
An action for wrongful death allegedly due to the negligence of the defendant, John C. Jackson, was filed on June 13, 1975. Defendant Jackson was insured by New Hampshire Insurance Company, also named as a party defendant. On July 3, defense counsel served on the plaintiffs a motion for extension of time to responsively plead. This was not objected to. Before an answer was filed, the defendant Jackson died on September 16, 1975. On October 6, under Fla.R.Civ.P. 1.260, New Hampshire filed a Suggestion of Death of the defendant Jackson.
The copy of the Suggestion of Death sent to opposing counsel on that same day included the certificate of service which stated that a copy of the suggestion was sent by mail on 'September 6, 1975.' This date was a typographical error and should have read 'October 6, 1975.' The suggestion is in other respects correct and was admittedly received by the opposing counsel.
Answer was thereafter filed by New Hampshire. The plaintiffs, rather than seeking a substitution of party for the deceased defendant, mailed a demand for notice and a 'Caveat by Creditor' to the circuit court clerk.
On January 16, 1976, petitioner New Hampshire filed its motion to dismiss under Fla.R.Civ.P. 1.260, which reads in part:
'(a) (1) . . . 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.'
New Hampshire argued that no substitution of the proper party had been made by any party within 90 days following service of the Suggestion of Death filed October 6, 1975. Plaintiffs responded by filing a 'Motion to Appoint the Administrator Ad Litem and to Enlarge Time for Substitution of Parties.'
The trial court's order on the two motions is as follows:
1. The instrument labeled a Suggestion of Death is a nullity and of no force and effect; consequently, defendant's motion is denied.
2. Without ruling on the question of whether or not there was excusable neglect or whether or not plaintiff is entitled to an enlargement of time pursuant to Rule 1.090, plaintiff's motion for enlargement of time is denied, now being moot.'
We have jurisdiction of this interlocutory appeal although the trial court's order is not one specifically reviewable under Fla.App. Rule 4.2. Nevertheless in the exercise of our discretion we treat this petition for interlocutory review as a petition for common law certiorari. The trial court's failure to dismiss the action, if erroneous, constitutes a departure from the essential requirements of law and will cause material injury to the petitioner throughout the remainder of the proceedings for which there will be no adequate remedy by appeal after judgment. Beta Eta House Corporation v. Gregory, 230 So.2d 495 (Fla.1st DCA 1970).
As to the merits we hold that the trial court was incorrect in declaring the Suggestion of Death a nullity. Rule 1.260 requires only that a party's death be '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 . . ..' Rule 1.080(b) explains how service is accomplished:
(Emphasis supplied)
It is clear that the plaintiffs were served with notice of the death of the alleged tortfeasor, and were in fact aware of such death. Indeed, the plaintiffs took steps to perfect their claim against the decedent's estate. They did not, however, make any timely attempt to substitute the proper party in the present litigation as required by Rule 1.260.
It remains for the trial court to determine whether the plaintiffs' failure to substitute the proper party should be excused for any reason. It...
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Wilson v. Clark, AG-181
...belief that substitution may not have been required within the time strictures of Rule 1.260(a)(1). See New Hampshire Insurance Co. v. Kimbrell, 343 So.2d 107, 109-10 (Fla. 1st DCA 1977); King v. Tyree's of Tampa, Inc., 315 So.2d 538 (Fla. 2d DCA 1975); Rule 1.540(b), Accordingly, as in Kim......
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Wick v. Waterman
...(Georgia rule allows 180 days, twice as long as the federal rule, to substitute and may be extended); New Hampshire Ins. Co. v. Kimbrell, 343 So.2d 107, 109 (Fla.Dist.Ct.App.1977) (to follow Rende would engraft exception to state rule but other relief from failure to comply ...
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Stern v. Horwitz
...2d DCA 2018), the purpose of rule 1.260 was to "allow more flexibility in substitution." Id. at 867 (quoting N.H. Ins. Co. v. Kimbrell, 343 So.2d 107, 109 (Fla. 1st DCA 1977) ). Its ninety-day time period for filing or serving the motion for substitution "was not intended to act as a bar to......
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Metcalfe v. Lee
...lost. The rule is supposed to dispel rigidity, create flexibility and be given liberal effect." Id. (citing New Hampshire Ins. Co. v. Kimbrell, 343 So.2d 107 (Fla. 1st DCA 1977)). We find this analysis to be persuasive especially in light of the rule's plain language as to when a trial cour......