Vera v. Adeland, 3D02-3349.

• Decision Date: 09 September 2004
• Docket Number: No. 3D02-3349.,3D02-3349.
• Citation: 881 So.2d 707
• Parties: Camilo VERA, Appellant, v. Chamberland ADELAND, Appellee.
• Court: Florida District Court of Appeals

881 So.2d 707

Camilo VERA, Appellant, v. Chamberland ADELAND, Appellee.

No. 3D02-3349.

District Court of Appeal of Florida, Third District.

September 9, 2004.

Jason S. Remer and J.H. Zidell, for appellant.

Adams & Adams, P.A., and Derek B. Barba, Miami, for appellee.

Before COPE, SHEVIN and RAMIREZ, JJ.

COPE, J.

Plaintiff-appellant Camilo Vera appeals the dismissal of his complaint against defendant-appellee Chamberland Adeland for failure to substitute an appropriate party upon the death of the defendant. We reverse.

The plaintiff sued the defendant for negligence in an automobile accident case. The defendant, a Canadian citizen, was represented by counsel provided through his automobile insurance policy.

The defendant's counsel filed a suggestion of death, stating that the defendant had passed away. Under Florida Rule of Civil Procedure 1.260(a)(1), this filing triggered a ninety-day period for substitution of a new party defendant.

On the ninety-sixth day, successor defense counsel served a motion to dismiss the action because the plaintiff had not moved to substitute a proper party defendant in place of the decedent. The plaintiff then requested an extension of time and soon thereafter filed a motion for substitution of parties. The court dismissed the action because the plaintiff had not moved to substitute parties, or filed a motion for extension of time, within ninety days. This appeal follows.

II.

The plaintiff first argues that the suggestion of death filed by defense counsel was legally insufficient because it contained no information about the date and location of the defendant's death, and did not state whether an estate had been opened. The plaintiff maintains that if a suggestion of death does not reveal such information, it should be deemed legally insufficient to start the ninety-day time period for substitution of parties. We reject this argument.

Rule 1.260 states, in part:

Rule 1.260. Survivor; Substitution of Parties

(a) Death.

(1) 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 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.

Fla. R. Civ. P. 1.260(a)(1) (emphasis added).

The purpose of the rule is to provide an orderly procedure and timetable for substitution where a party has died during the course of the litigation. The rule does not spell out any specific requirements for the content of the suggestion of death, and we decline to add requirements that are not stated in the rule.

In this case, the suggestion of death stated in its entirety, "Comes now, the undersigned counsel for the Defendant, Adeland Chamberland, [and] state[s] that he has been notified that the Defendant, Adeland Chamberland, died approximately one year ago." The rule does not require anymore specificity than this, although the better practice is to include the details relevant for substitution purposes. See Bruce J. Berman, Florida Civil Procedure ¶ 260.4, at 281 (2004 ed.) ("Although not expressly required by the language of the rule, the suggestion should include information necessary for any other party to move for substitution, such as `the status of the estate, identity of the personal representative, or ... the identity of next of kin or successors in interest.'") (footnote omitted).

If we were to accept the plaintiff's argument, there would never be any certainty about how to calculate the time period after the suggestion of death is filed. Under the plaintiff's analysis, the ninety-day deadline can always be avoided if the suggestion of death omits any detail regarding the decedent's demise and the existence of an estate. The plaintiff's theory is unworkable. The rules regarding calculation of time limits need to operate in a clear and predictable way.

Here, the defense filed a document entitled suggestion of death, which advised the parties that the decedent...