Provident Life & Acc. Ins. Co. v. Lebo

• Court: Florida District Court of Appeals
• Writing for the Court: Before HAVERFIELD; HENDRY
• Citation: Provident Life & Acc. Ins. Co. v. Lebo, 355 So.2d 195 (Fla. App. 1978)
• Decision Date: 21 February 1978
• Docket Number: Nos. 76-2088,76-2089,s. 76-2088
• Parties: PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, a Foreign Corporation authorized to do insurance business in the State of Florida, Arthur Hirschberg, and Firemen's Fund Insurance Company, a Foreign Corporation authorized to do insurance business in the State of Florida, Appellants, v. Robert LEBO, Appellee.

Page 195

355 So.2d 195

PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, a Foreign Corporation authorized to do insurance business in the State of Florida, Arthur Hirschberg, and Firemen's Fund Insurance Company, a Foreign Corporation authorized to do insurance business in the State of Florida, Appellants, v. Robert LEBO, Appellee.

Nos. 76-2088, 76-2089.

District Court of Appeal of Florida, Third District.

Feb. 21, 1978.

Shutts & Bowen and Brenton Ver Ploeg, Corlett, Merritt, Killian & Sikes, Greene & Cooper, Miami, for appellants.

Tobin & Fisch and Donald E. Krentsa, Miami, for appellee.

Before HAVERFIELD, C. J., and HENDRY and KEHOE, JJ.

HENDRY, Judge.

Appellants, defendants below, bring this consolidated appeal from an order vacating a judgment of dismissal, rendered pursuant to Fla.R.Civ.P. 1.540(b).

There is but one issue on appeal, to-wit: whether the trial court abused its discretion in allowing a substitution of party plaintiff more than 90 days after the filing of a "suggestion of death." We hold that no abuse of discretion has been shown, and affirm.

Fla.R.Civ.P. 1.260(a)(1) provides that:

"If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in Rule 1.080 and upon persons not parties in the manner provided for the service of a summons. 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."

The above statute has been interpreted liberally to allow substitution of a party after 90 days of the suggestion of death upon a showing of...