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Suing A Deceased Defendant


In several types of Florida accidents, there is unfortunately a high likelihood of someone losing their life, particularly in accidents that involve automobiles or large trucks. If the person allegedly at fault for the accident is killed, most injured survivors tend to believe that their chance for receiving any kind of compensation for their injuries has died with that person. However, Florida legal procedure states that in most situations, a cause of action (in other words, a reason to sue another person) survives that person – if the proper procedure going forward is followed. If you are in this situation, it is crucial to enlist the help of an experienced attorney, so as to make sure your claim is preserved.

The Action Survives

When a potential defendant in a personal injury case dies, this does not extinguish the cause of action, whether the lawsuit has officially been filed at that point or not. In order to mount or continue a lawsuit for your injuries, a substitution of defendants has to happen. If the defendant has passed away, the proper party to file suit against is the personal representative of the deceased person’s estate. Using what is referred to as a scire facias motion, you can file a request with the court to make the change.

Alternatively, Florida law does allow your attorney to intervene in an existing probate, rather than simply filing a separate civil action. In a probate case, which is opened after someone passes away, any person who may have a claim on the estate is permitted to file a motion to intervene, so that their story can be told to the court. There is little difference between filing a separate suit and intervening in probate, but many prefer intervention simply because the process may move faster.

Know Your Evidence

Florida’s Rules of Civil Procedure have certain requirements that govern the substitution, such as the length of time in which one has to make the change. Generally, this is within 90 days of the date on which you discovered the death of the defendant. That said, the 90 day rule is “construed liberally,” and extensions are granted fairly often, to ensure that no one misses the chance to file an appropriate and relevant claim if one actually exists.

If you manage to affect the substitution of defendants in the appropriate way, your suit will continue on the standard path. However, establishing certain types of evidence may be more difficult simply because the defendant is no longer available to provide their account. Some types of evidence will be unaffected – for example, if depositions happened, the defendant’s taped deposition will be admissible – but some evidence in this type of trial may wind up being classified as hearsay. Hearsay is when an out-of-court statement is offered for its truth, and it is almost always inadmissible as evidence because there is no guarantee of its truthfulness.

Call A Tampa Personal Injury Attorney

Being involved in an accident can be a life-changing event, but if the defendant dies in the accident or soon afterward, you may fear that you have no chance to recover monetarily for what you have been through. A Tampa personal injury attorney from the Rinaldo Law Group can help you understand your rights and options as you navigate the legal process. Call our offices today for a free consultation.



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