Can an Attorney to Substitute Out of the Case and Then Substitute Back

When a defendant dies during a personal injury case, it can complicate the matter. A defendant passing away during a personal injury case is certainly an unexpected event. For the plaintiff, there are some important things to know about how it can impact the case.

There are also a few steps that the plaintiff needs to take after a defendant dies to ensure that they can still pursue their claim in the best way. Our Tampa, Florida personal injury attorneys explain what happens in a personal injury case when the defendant dies.

What Happens to an Injury Case When the Defendant Dies?

What happens to a lawsuit when the defendant dies is that the claim survives. The plaintiff can continue the case against the defendant's estate. However, the damages available to the victim may be different than they were before the defendant passed away. The plaintiff may need to take action to continue the case by making a motion to substitute the defendant's estate as the responding party.

What happens to a lawsuit when the defendant dies is that either party moves to substitute the decedent's estate as the defending party. The lawsuit continues against the person's estate.

What Happens If the Defendant Dies During the Case?

When the defendant dies during the case, the case continues. The plaintiff is still the victim of legal wrong, and they still have a right to compensation. The right to economic damages is the same. In addition, the victim's pain and suffering doesn't change. The victim can still request both economic and non-economic damages.

Florida law 46.021 – Personal Injury Case After the Death of the Decedent

Florida law 46.021 clarifies that a legal claim doesn't end when the defendant dies.^[1] The law says that a cause of action does not die with the person. In other words, when the case is already started, and the defendant dies, the case continues.

Florida law 46.021 also clarifies that a case can begin after the defendant dies. The victim can continue to bring their case. In turn, the defendant's representative may continue to defend the case on behalf of the victim's estate.

Punitive Damages in Florida After a Defendant Dies

One significant change in the State of Florida when a defendant dies is that the victim can no longer claim punitive damages. The purpose of punitive damages is to punish the defendant for extremely bad behavior. When the person dies, they can no longer be punished.

The courts don't believe that it's appropriate to punish a defendant's estate. While the defendant's estate must still pay compensatory damages, the claim for punitive damages ends when the defendant dies. The Florida case Lohr v. Byrd explains that punitive damages are not available in cases with a deceased defendant.^[2]

Treble Damages in Florida After a Defendant Dies

Even though punitive damages are not available after the defendant dies, treble damages still apply. Sometimes, Florida law allows a plaintiff to claim extra damages beyond their actual economic damages. These damages are called treble damages.

The plaintiff should very clearly identify in their complaint that they are claiming treble damages as well as punitive damages so that there is no room for argument. Snyder v. Bell explains treble damages recoverable by a victim after the death of a defendant.^[3]

Substitution of Parties Upon the Death of the Defendant

Florida has court rules called the Florida Rules of Civil Procedure. The rules aren't laws created by the legislature for how to decide cases, but they are a set of mandatory rules for how the court process works. Florida Rules of Civil Procedure Rule 1.260(a)(1) states that the parties must enter a substitution after a party dies.^[4} The person's estate representative becomes the new party to the case.

Either party may file a motion to substitute the party under Florida Rules of Civil Procedure Rule 1.260(a)(1). The substitution must be filed within 90 days from finding out that the person died. The courts construe the 90-day rule liberally. They often grant extensions to prevent fraud and allow the parties to pursue justice.

Admission of Evidence Issues After a Party Dies

When a party dies, a personal injury case gets more complicated from an evidentiary perspective. Obviously, when a person is deceased, they can no longer testify in court at trial. As the injured victim, you may need to get more creative to tell a complete picture of the case.

There are several ways to accomplish this. Prior statements of the defendant may be admissible in the case. Previous statements under oath, like testimony in a deposition, for example, may still come into court quite easily. In addition, a statement from another party may be admissible as a statement against interest.

There are several rules of evidence that may apply to make the deceased party's statements admissible in court. They're not automatically admissible just because the defendant passed away, though. As a litigant, it's important to be armed with the applicable rules of evidence to make the right arguments to the court about admitting statements of the defendant.

How Can an Injury Attorney Help?

If you're the victim in an injury case and the defendant dies, there are a few ways that an experienced attorney can provide you with valuable representation. Your attorney can ensure that you file the proper motion to substitute a party as necessary.

They make sure that you have the evidence and arguments prepared to make a compelling case in court. Because a defendant passing away is a complex issue, an attorney can ensure that you take the appropriate steps to both continue your litigation and pursue it effectively.

Contact Our Tampa Injury Lawyers for a Free Consultation

Our personal injury attorneys can assist you when you're a victim in a case where the defendant dies. Call us today for your free consultation. There is no fee unless you win.

Sources

[1] FLA. STAT. § 46.021 (2019)

[2] Lohr v. Byrd, 522 So.2d 845 (Fla 1988)

[3] Snyder v. Bell, 746 So.2d 1096 (1999)

[4] Florida Rules of Civil Procedure RULE 1.260 SURVIVOR; SUBSTITUTION OF PARTIES. (n.d.). Retrieved 17 January 2020.

The information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Can an Attorney to Substitute Out of the Case and Then Substitute Back

Source: https://bernsteininjurylaw.com/blog/lawsuit-when-defendant-dies/

Share this post