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Can I File Suit Against A Deceased Or Incapacitated Defendant?


The most common type of civil lawsuit filed in Florida is known as a personal injury case, usually brought under a theory of negligence. A personal injury lawsuit can be brought by anyone who believes they have suffered an injury due to the negligent or otherwise thoughtless conduct of another person – for example, filing suit against a driver who struck your car with theirs and caused you injury. That said, it is possible – particularly in situations where one or both parties are injured – for the defendant to either die or become incapacitated. In such cases, the suit can still go on.

When The Defendant Dies

In personal injury cases, a deceased defendant does not mean that the case must be dropped – after all, it is presumed that the defendant left an estate, which could in theory pay out a jury award if the plaintiff prevails in court. This may seem unjust since the defendant is no longer living and cannot face their accuser, so to speak, but that right is only granted specifically in criminal trials. In Florida, the attorney for the defendant must file what is known as a motion for scire fascias, also called a motion for substitution. This will remove the name of the decedent from all future orders and pleadings, and substitute the decedent’s personal representative or the estate as a whole.

If the defense’s motion for substitution is accepted, the lawsuit will, at least in theory, proceed in the same way as any other civil lawsuit. The plaintiff must establish that the defendant’s failure to exercise reasonable care was directly responsible for the accident, which in turn caused their injuries. This can be done without the defendant’s direct presence. One thing to be aware of, though, is that different hearsay exceptions may apply when a defendant is not present than would apply if they were there. Hearsay is when an out-of-court statement is offered for its truth to the court, and it is often, but not always, inadmissible.

Different Rules For Incapacity

If you have not yet filed suit, and the person you intend to sue turns out to be legally incapacitated, you are barred from filing suit against them because they are legally presumed to not understand the consequences of a jury verdict. People who are mentally unwell or otherwise not able to act for themselves occupy a similar legal position to children under the age of 18 – they cannot enter into contracts or conduct many other legal transactions themselves, because they are presumed to not fully understand the situation. This means that they generally cannot be sued.

If you are unable to file suit against the person who allegedly caused your injury, you may have other options, depending on the specific facts of your situation. If you were injured in an auto accident, there may be other drivers who are legally responsible, or if your accident involved a large truck, you may be able to hold the trucking company liable. If your injuries occurred in another way, it is best to consult an experienced attorney to see what your options may be.

Contact A Tampa Personal Injury Attorney

If you have been injured, you have the right to seek compensation from the party or parties that caused your injuries. If the defendant passes away during your suit, it may feel like you are out of options – but in reality, there may be other avenues you can pursue. The Tampa personal injury attorneys from the Rinaldo Law Group can help you determine how to proceed with your case even if you lose the defendant. We are happy to try and assist you. Call our offices today for a free consultation.



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