GARDENIA DEARMAS ET AL., APPELLANTS,
v.
NATHAN BLONSTEIN AND ALLSTATE INSURANCE COMPANY, APPELLEES
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The court held that the dismissal of the action was not error, but amended the order to be without prejudice.
Plaintiffs filed a personal injury action after the defendant had already died. The defendant's insurer moved to dismiss the action without a substitu…
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PER CURIAM.
This is an appeal by the plaintiffs below from an order dismissing an action filed by them on April 28, 1976 for damages for personal injuries received by appellant, Gardenia DeArmas, as a result of an automobile accident alleged to have been caused by the defendant, Nathan Blonstein, against whom, with his indemnity liability insurer, the action was brought.
The defendant-insurer filed an answer denying coverage. On September 14, 1976, the attorneys for the defendant-insurer filed a suggestion of death, stating that the said Nathan Blonstein had died prior to the filing of the complaint. He had died in January of 1976, some three months prior to the filing of the action.
On February 1, 1977, the defendant-insurer filed a motion to dismiss. There was no substitution of parties. See: Fla.R. Civ.P. 1.260(a)(1) and (2). The motion was granted by an order wherein the court stated: “and judgment be and is hereby entered in favor of the Defendant and against the Plaintiffs, with costs to be hereafter taxed, and the Plaintiff shall go hence without day”.
Appealing therefrom, appellant contends the dismissal of the action was error. We hold no error was thereby committed, but amend the dismissal order to be one without prejudice.
Judgment affirmed as amended.
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In re 73 ENGLE-RELATED CASES., 239 So. 3d 166 (Fla. 1st DCA 2018)…arties to a judicial or quasi-judicial proceeding."); see also In re Engle Cases , 767 F. 3d 1082, 1086-87 (11th Cir. 2014) ("As any lawyer worth his salt knows, a dead person cannot maintain [*169] a personal injury claim."); DeArmas v. Blonstein , 356 So. 2d 1339, 1340 (Fla. 3d DCA 1978) (affirming the dismissal of a personal injury claim where the plaintiff died before the lawsuit was filed). Corresponding to this legal rule, plaintiffs' counsel had no authority to file and maintain these cases on behalf o…
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Staines v. R.J. Reynolds Tobacco Co., 239 So. 3d 164 (Fla. 1st DCA 2018)…on the trial court, nor does it provide a basis upon which an amended complaint can now relate back. See BEC Constr. , 383 So. 2d at 1094 ("No proper claim ever having been filed, ... [*166] [the court] had no jurisdiction."); DeArmas v. Blonstein , 356 So. 2d 1339, 1340 (Fla. 3d DCA 1978) (affirming the dismissal of a personal injury claim where the plaintiff died before the lawsuit was filed).* As in In re 73 Engle-Related Cases , we also affirm because the trial court committed no error in denying the 2016…
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Wilson v. Pyle, 851 So. 2d 779 (Fla. 2d DCA 2003)…ly held that dismissals pursuant to rule 1.260(a)(1) should be without prejudice. Id.; Stroh v. Dudley, 476 So. 2d 230 (Fla. 4th DCA 1985) (holding that rule 1.260(a)(1) does not require mandatory, non-diseretionary dismissal); DeArmas v. Blonstein, 356 So. 2d 1339 (Fla. 3d DCA 1978) (concluding that dismissal for failure to timely move to substitute parties pursuant to rule 1.260 should have been without prejudice). Wilson and Cam-Jo argue that this case is identical to Kash N’ Karry Food Stores, Inc. v. Smar…
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