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More than a Merely Perfunctory Matter

Written by on Jun 21, 2010| Posted in: General

Fourth District Reverses $1.6M Jury Verdict Because Lawyer Failed to Substitute Decedent’s Estate as a Party

Litigation presents lots of surprises and traps for the unwary.  The consequences of failing to follow a seemingly-routine procedure can sometimes lead to horrific consequences. 

An example of one of the plain and simple rules of litigation is that 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.  The motion must be made within 90 days or the action shall be dismissed as to the deceased party. The purpose of this rule is to facilitate the rights of persons having lawful claims against estates being preserved, so that otherwise meritorious actions will not be lost

When counsel files a suggestion of death, opposing counsel should (a) contact opposing counsel for information regarding the date and place of death, and such information as opposing counsel may have regarding whether an estate has been opened, or (b) propound discovery directed at obtaining the same information, or (c) both.  Generally, if the decedent’s estate has been opened, then the personal representative should be substituted in place of the decedent; however, if no estate has been opened, then another appropriate representative, such as a guardian ad litem, will need to be substituted.  Failure to substitute the proper representative or guardian nullifies subsequent proceedings.

Florida inheritance lawyers that handle probate estates and inheritance lawsuits were reminded this week of the consequences of failing to follow the rule in Schaefler v. Deych 2010 WL 2292936 (Fla.4th DCA June 9, 2010).  This case involved plaintiffs who alleged they were injured after Mr. Levinsohn drove his car into Plaintiff while she was walking her bicycle across the street.  The case was set for jury trial on the trial court’s docket, however, just a few weeks before trial, the defendant Mr. Levinsohn died. Unaware of the defendant’s death, defense counsel filed a motion in limine to exclude argument at trial on any inferences of negligence based on the defendant’s anticipated absence at trial, due to his terminal cancer. As soon as he learned that the defendant died, he notified the court and plaintiffs’ counsel. Defense counsel filed a suggestion of death, however, instead of seeking to abate the proceedings until the decedent’s Estate could be substituted as a party at trial, defense counsel continued to defend the case.  A jury returned a verdict after trial for over $1.6 million and final judgment was entered against deceased defendant, Mr. Levinsohn.

Later, everyone learned that several weeks before trial, the Estate of Robert Levinsohn was opened in New York and represented by counsel there.   Plaintiff then filed a Motion to Substitute the Personal Representative of the Estate of Robert Levinsohn as a Party. Defense counsel filed a after the suggestion of death was filed.   Plaintiffs countered by arguing that the defendants were merely trying to get avoid the judgment because the jury hit them with a large verdict.

What’s the Big Deal?

On October 14, 2008, the Estate of Robert Levinsohn in New York filed a motion to intervene and to join in the motions filed by defense counsel for New Trial also arguing that the case should not have proceeded to trial without substitution of the Estate as the defendant. Plaintiffs opposed the post-trial motions, asserting that the deceased defendant, through his insurance company, was seeking “another bite of the apple” and that substitution was just a perfunctory matter. 

Due Process

The Estate argued that the procedures that culminated in entry of the final judgment against the Estate violated its due process rights. The inheritance lawyers for the probate estate showed that the trial court never obtained jurisdiction over the New York Estate and the Estate was given no notice and opportunity to appear in the proceedings.

The Fourth District Court of Appeals agreed with the probate litigation attorneys and reversed the trial court and ordered a new trial wherein the estate could properly participate and defend.  Hats off to the court for upholding the federal and state constitutional guarantees of due process.  It is an important lesson to learn that these fundamental rights sometimes survive the death of the person to whom they are intended to protect.

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