Daytona Beach Personal Injury Lawyers
Free Consultations 386.258.1622

Florida Second DCA rules that trial court erred in dismissing plaintiff’s complaint for failure to file motion to substitute parties within statutorily mandated 90-day period

On May 8, 2019, in Sammons v. Greenfield, et al., No. 2D17-755, the Florida Second DCA withdraw it previous opinion and issued a new opinion in a medical negligence lawsuit, reversing the trial court’s dismissal of the plaintiff’s complaint for failure to timely serve a motion to substitute a party following the plaintiff’s death.  Florida Rule of Civil Procedure 1.260(a)(1) requires that a motion to substitute a deceased party’s personal representative as the new party must be filed within 90 days after the filing of a suggestion  of death.  The plaintiff’s counsel failed to meet this deadline, but at the hearing on the motion to dismiss she presented an affidavit   detailing a health issue she had been experiencing and explaining how the condition was responsible for her failure to timely file the motion to substitute. The trial court nevertheless dismissed the complaint.  Quoting from Tucker v. Firestone Tire & Rubber Co., 552 So. 2d 1178, 1179 (Fla. 2d DCA 1989), the Second DCA observed that Rule 1.260 "has been liberally interpreted to permit substitution beyond the ninety-day time period"); see also Mims ex. rel. Mims v. Am. Sr. Living of Dade City, FL, LLC, 36 So. 3d 935, 936 (Fla. 2d DCA 2010). In support of its ruling reversing the trial court’s dismissal of the complaint, the Second DCA additionally cited City of Ocala v. Heath, 518 So. 2d 325, 326 (Fla. 5th DCA 1987) (finding that counsel's illness combined with the effects of his medication made his neglect excusable).