PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, A FOREIGN CORPORATION AUTHORIZED TO DO INSURANCE BUSINESS IN THE STATE OF FLORIDA, ARTHUR HIRSCHBERG, AND FIREMEN'S FUND INSURANCE COMPANY, A FOREIGN CORPORATION AUTHORIZED TO DO INSURANCE BUSINESS IN THE STATE OF FLORIDA, APPELLANTS,
v.
ROBERT LEBO, APPELLEE
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The court held that the trial court did not abuse its discretion in allowing a substitution of party plaintiff more than 90 days after a suggestion of death was filed.
Appellants, defendants below, appealed an order vacating a judgment of dismissal. The dismissal was entered pursuant to Fla.R.Civ.P. 1.540(b). The iss…
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HENDRY, Judge.
Appellants, defendants below, bring this consolidated appeal from an order vacating a judgment of dismissal, rendered pursuant to Fla.R.Civ.P. 1.540(b).
There is but one issue on appeal, to-wit: whether the trial court abused its discretion in allowing a substitution of party plaintiff more than 90 days after the filing of a “suggestion of death.” We hold that no abuse of discretion has been shown, and affirm.
Fla.R.Civ.P. 1.260(a)(1) provides 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 and, together with the notice of hearing, shall be served on all parties as provided in Rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.”
The above statute has been interpreted liberally to allow substitution of a party after 90 days of the suggestion of death upon a showing of excusable neglect, inadvertence, mistake, etc. pursuant to Fla.R.Civ.P. 1.540(b)(1), Relief from Judgment, Decrees or Orders. King v. Tyree’s of Tampa, Inc., 315 So. 2d 538 (Fla. 2d DCA 1975); and pursuant to Fla.R.Civ.P. 1.090(b), Time. New Hampshire Insurance Company v. Kimbrell, 343 So. 2d 107 (Fla. 1st DCA 1977). The trial judge, after a hearing, vacated his judgment of dismissal pursuant to Fla.R. Civ.P. 1.540(b), and in so doing, the record does not reflect an abuse of his discretion.
Accordingly, the order appealed from is affirmed and the cause remanded for further proceedings.
Affirmed.
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Adele Stroh v. Dudley, 476 So. 2d 230 (Fla. 4th DCA 1985)…party”. The law of this State is that this provision should be liberally interpreted and applied to allow substitution after 90 days upon a showing of excusable neglect, inadvertence or mistake. Provident Life and Accident Insurance Company v. Lebo, 355 So. 2d 195 (Fla.3d DCA 1978), Bono v. Dubree, 350 So. 2d 26 (Fla. 4th DCA 1977), and New Hampshire Insurance Company v. Kimbrell, 343 So. 2d 107 (Fla. 1st DCA 1977). The issue before us was recently examined in detail in Somero v. Hendry General Hospital, 467…
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Wells Fargo Bank, N.A. v. Michaels, 166 So. 3d 226 (Fla. 5th DCA 2015)…timely appealed the April 15, 2014 order. A trial court’s ruling on a rule 1.540(b) motion is reviewed for an abuse of discretion. J.J.K. Intern., Inc. v. Shivbaran, 985 So. 2d 66, 68 (Fla. 4th DCA 2008); Provident Life & Accident Ins. Co. v. Lebo, 355 So. 2d 195, 196 (Fla. 3d DCA 1978). It is well-settled law that an order entered without notice is void. Taylor v. Bowles, 570 So. 2d 1093, 1094 (Fla. 4th DCA 1990) (“When a party has no notice of a trial date, the trial court abuses its discretion when it pr…
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Pearl v. Kelly, 442 So. 2d 1012 (Fla. 3d DCA 1983)…substitution of a party after 90 days of the suggestion of death upon a showing of excusable neglect, inadvertence, mistake, fraud, etc. pursuant to Rule 1.540(b)(1), Florida Rules of Civil Procedure. Provident Life & Accident Insurance Co. v. Lebo, 355 So. 2d 195 (Fla. 3d DCA 1978); Nationwide Insurance v. Holmes, supra; New Hampshire Insurance Co. v. Kimbrell, 343 So. 2d 107 (Fla. 1st DCA 1977). A party may move also for an enlargement of time pursuant to Rule 1.090(b), Florida Rules of Civil Procedure, in…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- King v. Tyree's OF Tampa, Inc., 315 So. 2d 538 (Fla. 2d DCA 1975)
- NEW Hampshire Ins. Co. v. Kimbrell, 343 So. 2d 107 (Fla. 1st DCA 1977)