FL CIVIL EXAM OUTLINE.docx

FL CIVIL PRACTICE – EXAM OUTLINE

RULE 1.010 – SCOPE

  • Rules apply to all civil cases except: probate, family law, and small claims.
  • In cases of special statutory proceedings, the statute takes priority. (i.e. Eviction).

ARTICLE V, SECTION 2 FLORIDA CONSTITUTION

  • FL Supreme Court has exclusive power to make rules about how courts should operate.
  • FL legislature cannot infringe.

RULE 1.030 – NON-VERIFICATION OF PLEADINGS

  • In most cases, you do not need to verify any pleadings unless a specific rule or statute requires. (i.e. Foreclosures)

RULE 1.050 – WHEN CIVIL ACTION STARTS

  • Complaint, Petition, or Writ (in ancillary proceedings).

SUBSTANTIVE V. PROCEDURAL

  • Substantive: creates rights and obligations (right to atty fees)
  • Procedural: deals with how cases move through courts.
  • If law has both P & S 🡪 Substantive.
  • Statutory issues = De Novo
  • Offer of law statutes = substantive.
  • In FL courts will usually honor a choice of law provision, unless it conflicts with a strong public policy in Florida.

RETROACTIVITY

  • Substantive laws: apply going 🡪 ; UNLESS legislature says otherwise.
  • Procedural laws: can apply retroactively.

WHEN A CLAIM ACCRUES

  • You cant file suit until all elements exist.
  • If claim is files too early, element wise, it should be dismissed w/o prejudice.
  • Due to this, claim preclusion does not apply.
  • If claim needs more time to ripen, the case should be abated (paused), NOT dismissed.
  • Dismissal on merits = w/ prejudice (res judicata kicks in).

DEMANDS BEFORE SUING

  • SOL on oral loan contract starts when there has been a breach by debtor, which is when debtor refuses to pay after being asked to.

NOTICE REQS BEFORE FILING CERTAIN LAWSUITS (AGAINST THE GOVT).

  • 768.28 requires written notice to the department of insurance w/ 3 years, even if no connection to the case. (only applies to torts).
  • Only applies if a state agency or subdivision is being sued, NOT a municipality.
  • Each claimants has to give proper notice.
  • HOWEVER, claims under FL Civil Rights Act do not need pre suit notice; neither do requests to reopen or challenge a judgement.
  • Summons + complaint needs to be provided.
  1. WAIVER
  • Government entities may waive or be estopped.
  • Elements of waiver:
  1. Actual knowledge – govt. clearly knew situation.
  2. Pursuit of investigation – mere investigation alone is not sufficient.
  3. Govt. acts in a way that makes a reasonable person think they didn’t need to send formal notice.
  4. Detrimental reliance by PL – PL relied on governments behavior, so they didn’t send anything.
  5. ISSUES WITH WAIVING
  • If DEF fails to raise defense & waits until trial to raise issue it can be waived.
  • PL can allege compliance generally | DEF has to deny w/ DETAIL.
  • Remedy for failure for failure to allege performance of condition precedent is dismissal with leave to amend. (judge allows them to fix the mistake).

BAD FAITH INSURANCE CLAIMS

  • A cause of action for bad faith against an insurance company does not exist until there has been a determination of (1) the insured’s right to recover (liability) against the uninsured tortfeasor and (2) the extent of the insured’s damages.
  • In insurance bad faith cases, you must wait until the court decides the insurance company owes you money before you can sue them for acting unfairly or in bad faith.

RULE 1.040 – ONE FORM ACTION

  • Florida only uses one type of lawsuit called a civil action.
  • This rule combines what used to be two separate systems: law and equity. Now, they’re handled in the same court under the same rules.
  • Legal: $$$
  • Equitable: asking judge to do something.

ADEQUATE REMEDY AT LAW

  • A temporary injunction is not proper when a party has an adequate remedy at law—such as money damages—even if those damages may later be difficult to collect.
  • Standard of review: Abuse of Discretion.
  • Requirements for Temporary Injunction:

1)irreparable harm

2) a clear legal right

3) an inadequate remedy at law

4) the public interest will be served

IMPROPER DENIAL OF WRIT OF MANDAMUS

  • If a judge refuses to let someone file a legal document but doesn’t issue a formal court order, the person can’t appeal—they must file a writ of mandamus to ask a higher court to fix it, especially if the refusal blocks their right to access the courts.

LIMITS ON ACTIONS

  • Suit begins when complaint is filed & SOL is tolled when complaint is filed.
  • If you have difficulty finding and serving a defendant, you can always ask the judge for more time to get service of process by filing a motion.

SECTION 95.11, FLORIDA STATUTES (2024) outlines the statute of limitations in Florida, specifying how long someone has to file a lawsuit depending on the type of case:

  • Contracts, foreclosures – 5 years
  • Torts, oral contracts, or contract rescission – 4 years
  • Professional or medical malpractice, wrongful death, wage recovery – 2 years
  • Specific performance of a contract, mechanic’s liens – 1 year

SOL ISSUE WITH DELAYED REPORTING

  • If an insured person delays notifying their insurer about an accident, there's a presumption that the insurer has been harmed in its ability to investigate. However, this presumption can be overcome if the insured can prove the insurer wasn't actually harmed by the delay.

UM BENEFITS

  • You can claim underinsured motorist (UM) benefits only after the at-fault driver's insurance is fully used up.

SOL – LATENT DISEASES

  • In cases involving latent diseases (like cancer caused by smoking), the statute of limitations begins when the plaintiff knows or should have reasonably known about the injury, not when the injury first occurred. The jury decides when this time period starts.
  • What other types of latent or “creeping” disease causes are there? Water pollution, mold, asbestos.

SOL – FALSE LIGHT INVASION

  • The FL Sup. Ct. had decided in the meantime that there is no cause of action for false light invasion of privacy in Florida. you cannot sue someone just because they put you in a false or misleading light, even if it damages your reputation or privacy.

CREDIT REPORT DEFAMATION – MULTIPLE PUBLICATION RULE

  • The multiple publication rule applies to credit report defamation.
  • Example: Let's say Jane's credit report incorrectly states that she owes a large sum of money to a company, but it's actually a mistake. The company first shares this incorrect information with one creditor in January. Jane doesn’t find out about this until March. Then, in May, the same false information is sent to another creditor. Jane doesn’t find out about that until June.
  • Under the multiple publication rule: The time limit for Jane to file a lawsuit doesn’t start when the false information is first sent to the first creditor in January. Instead, the clock starts each time Jane finds out about the false information being shared. So, Jane can still sue for defamation based on the May and June publications, even though the original mistake happened earlier in January.

SIGNIFICANT RELATIONS TEST – WHERE SHOULD LEGAL ISSUES BE DECIDED?

(SOL) for Out-of-State Causes of Action:

  • General Rule: If a legal issue happens in another state and that state’s law bars the claim due to time limits, Florida will also bar it.
  • Exception: The test is used to determine which state’s law applies.
  • FACTORS:
    1. Place where the injury occurred
    2. Place where the conduct causing the injury occurred
    3. Domicile, residence, nationality, place of incorporation, or business of the parties
    4. Place where the relationship between the parties is centered
    5. Relevant policies of the forum state (the state where the case is being heard)
    6. Relevant policies of other interested states and how strongly they’re connected to the issue
    7. Expectations of the parties (if any) about which law would apply.

For statute of limitations issues, where the people involved live and had their relationship matters more than where the injury happened. IMPORTANT POLICY CONSIDERATION? FORUM SHOPPING!

TOLLING OF STATUTE OF LIMITATIONS (F.S. § 95.051):

  • Time paused if:
    1. Defendant is out of state - No tolling if defendant can still be served
    2. Defendant hides or uses a fake name - No tolling if defendant can still be served
    3. Plaintiff is incapacitated before claim starts
    4. Partial payment on a debt - If the person or business you’re suing has made payments on a debt (like paying part of a loan), the time to sue for the rest may reset.

DELAYED – DISCOVERY DOCTRINE

  • Delays when the statute of limitations starts.
  • The clock doesn’t start until the plaintiff knew or should’ve known about the injury/wrongful act.
  • Tolling (pausing the time limit) is a separate issue.
  • Often used in childhood sexual abuse and medical malpractice cases, where the victim may not remember or realize the harm right away.
  • Jury decides if the plaintiff truly had memory loss due to trauma.

Delayed discovery only applies to:

  • Fraud
  • Product liability
  • Professional & medical malpractice
  • Intentional abuse-based torts
  • Not allowed for other types of claims.
  • Courts allowed it in childhood sexual abuse cases only when memory loss was caused by the abuse.
  • Must specifically allege fraud for the doctrine to apply.

STATUTE OF REPOSE

  • The statute of repose starts when the negligent advice is given, not when the cause of action arises. This is because the statute of repose typically has a longer time frame than the statute of limitations and is based on a specific act by the defendant, rather than when the injury or harm occurs.
  • Even if the time limit set by the statute of repose has passed, a person can still file a lawsuit for a product-related injury if the injury was not discovered until after that time limit. This applies when the injury is hidden or "latent," meaning it wasn’t obvious or known until later.

EQUITTABLE ESTOPPEL AND TOLLING

  • Equitable Estoppel: Stops the defendant from using the statute of limitations as a defense if their actions caused the plaintiff to file late.
  • Tolling: Pauses the statute of limitations.
  • Difference: Equitable estoppel doesn’t pause the time limit; it just prevents the defendant from using it as a defense.

RULE 1.080 – SERVICE AND FILING OF PLEADINGS; ORDERS; DOCS & TRANSCRIPTS

  • Service has to be done in conformity with rule | transcripts = PDF’s = text searchable.
  • An attorney cannot be compelled to accept service of process on behalf of their client related to a matter outside the scope of the atty’s retainer.
  • Can be compelled to give name, address, and even assets if they were not privileged.
  • Giving asset info to atty does not make it privileged.
  • An atty;s representation of client ends once the time to appeal a final judgement or dismissal expired.
  • An insurer cannot be forced to pay more than the policy limit unless there is proof of bad faith, even if they fail to respond to the lawsuit.

TOLLING

  • To file an appeal, you must do it within 30 days after the court's order.
  • However, if you file a motion for rehearing (asking the court to reconsider its decision), it STOPS the clock on the time to file the appeal until the court decides on that motion.
  • The motion for rehearing must be filed within 10 days of the judgment in a non-jury case. If the motion is filed and served on time, the deadline for appeal is extended.

COMPUTATION OF TIME

  • When you're counting a deadline, you don't count the first day (the day the order or event happens). Start counting the next day.
  • If something is sent by regular mail (not electronically), you add 5 extra days to the deadline.
    1. ATTY FEES: If you want to ask for attorney’s fees or costs after you win a case, you must file a motion. You have to file that motion within 30 days after the court enters a final judgment.
  • But if you ask properly under Rule 1.090(b) — especially if something like excusable neglect happened — the judge can allow more time for the attorney’s fees motion.
  • Rule 1.090(b) says: Courts can extend deadlines either before or after a deadline passes.
  • Before the deadline → you just need good cause.
  • After the deadline → you need good cause and excusable neglect.
  • The court said the 30-day deadline for filing a motion for fees only applies when the judge hasn't decided if fees will be awarded yet. If the judge has already decided that fees will be awarded, but just needs to figure out how much, the 30-day rule doesn’t apply. It would be unnecessary to file a motion in that case.
  • a claim for attorney’s fees must be made in either the defendant’s motion to dismiss or in a separate motion. This motion must be filed within 30 days after the case is dismissed. BUT DOES NOT HAVE TO INCLUDE SPECIFIC BASIS.
  • Rule 1.190 allow appellant opportunity to amend.
  • Under Florida Rule 12.490(f), a party has 10 days from the time the General Magistrate's report is served to file objections (called "exceptions") to that report.

RULE 1.100 – PLEADINGS AND MOTIONS

  1. PLEADINGS: Complaint, answer, counterclaim, crossclaim, third party, affirmative defenses, reply 🡪 No other pleadings are allowed unless rule specifically says so.
  2. MOTIONS: Motion + in writing (unless at hearing or trial) + state with particularity the grounds for it, and must set forth relief and order sought.
  • A written notice of hearing (scheduling the motion for court) counts as a written motion if it includes all the details.
  1. CAPTION:
  2. CIVIL COVER SHEET: When someone files a lawsuit, they must include a civil cover sheet.
  • It has to be filed at the same time as the complaint or petition.
  • If someone forgets to file it, the clerk still accepts the case but the lawsuit can’t proceed until the cover sheet is filed.
  • If the person filing is representing themselves (pro se), the clerk will fill it out for them.

TIMELINESS AND REQUIREMENTS FOR MOTIONS TO TAX FEES AND COSTS

  • If one side in a lawsuit makes a formal settlement offer under Florida law (Section 768.79) and the other side doesn’t accept it — and then ends up doing worse at trial — the side who made the offer might be able to ask the court to make the other side pay their legal fees and costs. This is done by filing something called a motion to tax fees and costs.
  • It has to be in writing — unless you're making the motion during a court hearing or trial.
  • The motion must clearly explain why you think the court should award you fees and costs.
  • It must be filed within 30 days after the final judgment or order is entered in the case.

RULE 110 – GENERAL RULES OF PLEADINGS

  • A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, must state a cause of action and shall contain
  • A short and plain statement of the grounds upon which the court’s jurisdiction depends
  • short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and
  • A demand for judgment for the relief

a)  Need to Know the Elements of Your Cause of Action

b)  Allege the Ultimate Facts That Are the Basis for Each Element

c)  party should plead each distinct claim in a separate count

  • (c) The Answer
  • When responding to a claim, you must admit or deny the facts and clearly state your defenses.
  • (d) Affirmative Defenses
  • You must specifically state any defenses (like fraud or payment) that excuse or limit your responsibility.
  • (e) Effect of Failure to Deny
  • If you don’t deny something in your response, the court assumes you admit it, except for the amount of damages.
  • (f) Separate Statements
  • Each claim or defense should be listed in separate, numbered paragraphs for clarity and organization.
  • (g) Joinder of Causes of Action; Consistency
  • You can include multiple claims or defenses, even if they seem inconsistent, as long as one could be valid.
  • (h) Subsequent Pleadings
  • If you file more documents after a final judgment, they must be labeled as “supplemental complaints” or petitions.

***If you're not trying to argue against something specific in the defense, you don’t need to respond.

*** If one side in a case raises a reason to avoid responsibility (an affirmative defense), the other side must officially challenge it by filing a reply. This ensures both sides know exactly what the dispute is, so they can properly prepare for the trial.

VENUE

  • 47.011: You can file a lawsuit where the defendant lives, where the cause happened, or where the property is located, but not for people who don’t live in the state.
  • 47.021: If suing multiple defendants in different counties, you can file the lawsuit in any county where one defendant lives.
  • 47.051: For lawsuits against companies, file in the county where the company does business, where the cause happened, or where the property is located; for out-of-state companies, file where they have a representative.

PLEADING MORTGAGE FORECLOSURES

  • Have promissory note, if lost it have to have sworn affidavit, verification needed, etc.

MISC

  • A court can't make decisions based on statements that are not sworn under oath.
  • Corporations must be represented by an attorney in all cases that are not filed in Small Claims Court.
  • If someone makes a mistake in their legal documents because they didn't have the proper legal help, they don’t have to prove that it was a good reason for the mistake to be allowed to fix the error.
  • A judge cannot require a client to pay their previous attorney's fees before hiring a new attorney, especially if the fees haven’t been agreed upon and there’s no final judgment in the case.
  • When an attorney retires from a case, the client must pay the fees prior to a substitution of an attorney only when the amount of the fee has been fixed by a contract and there is no dispute to the right of the attorney to receive a definite portion of the fee that is unpaid.
  • Fee and cost should be decided in separate action.

FL – FACT PLEADING NOT NOTICE PLEADING

  • The Florida rules require fact pleading, not notice pleading, like the federal courts. The Florida rules require a short and plain statement of the essential facts upon which the claim for relief arises.

PLEADING SPECIAL MATTERS

  • It IS necessary to plead the following with specificity

a)  Fraud or mistake

b)  Special Damages

c)  Failure to Perform Conditions Precedent

  • NOT needed with specificity

a)  Capacity to sue

b)  Malice

c)  Intent

d)  knowledge

  • Evidence of special damages inadmissible if those damages are not pled in the complaint

a)  Special damages MUST be pled in complaint

b)  Must be put on notice

REPLY

  • The purpose of a pleading known as a reply is to raise affirmative defenses.
  • A defendant can’t use an affirmative defense (a reason why they shouldn’t be held responsible) to get a case thrown out in a motion to dismiss. When a judge is deciding whether to dismiss a case, they can only look at the facts presented in the complaint itself, not anything outside of it.
  • Fraud must be alleged with particularity.
  • Elements of fraud are:
      • PL relied to his detriment on a false statement that concerned a material fact that defendant made with knowledge that the statement was false and with a intent to induce the plaintiff to rely on the false statement.

RULE 1.130 – ATTACHING A COPUT OF CAUSE OF ACTION AND EXHIBITS

  • (a) Instruments Attached: Relevant documents, such as contracts or bonds, must be attached to the pleading, but only the necessary parts, avoiding unnecessary documents.
  • (b) Part for All Purposes: Any exhibit attached to a pleading becomes part of the pleading, and statements can be referenced throughout the pleading or in other motions.

RULE 1.130 CASES

  • One waives defenses by not responding to the complaint, and the mortgagor was not required to attach a written assignment of the mortgage to maintain the foreclosure action.
  • If an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls, and it must be considered when determining a motion to dismiss.
  • When considering defective ballots, the courts have generally declined to void an election unless the defects clearly operate to prevent a free, fair and open choice in the election.
  • A default judgment can be set aside if the complaint on which it is based fails to properly state a cause of action, and a party cannot be granted relief if it is not supported by the pleadings.

RULE 1.140 – DEFENSES

  • A defendant must respond to a complaint within 20 days of receiving it, unless a different time is set. The state or its agencies have more time to respond (40 days or 30 days depending on the case).
  • Defenses, such as lack of jurisdiction or failure to state a valid claim, should be raised in the defendant's response, but they can also be raised in a motion before answering. Failure to raise these defenses early can result in waiving them, except for jurisdiction issues, which can be raised at any time.
  • A party can ask the court for judgment based on the pleadings after they are closed but before the trial starts.
  • Defenses must be resolved before the trial unless the court orders otherwise.
  • If a complaint is unclear, a party can ask for more details before responding.
  • Motion to Strike: A party can request to remove irrelevant or improper parts of a pleading.
  • Consolidation of Defenses: A party can combine motions in one, but if they leave out any defenses, they can't raise them later.
  • Waiver of Defenses: A party waives defenses they don’t raise in their response or motion, except for certain issues like jurisdiction, which can be raised at any time.

RULE 1.140 CASES

  • Rule 1.140(h) requires parties to give proper notice of all defenses they intend to assert. If a defendant wants to include a nonparty on a verdict form, the defendant must plead negligence on the part of the nonparty as an affirmative defense and specifically identify the party.
  • The defendant also has the burden of proof regarding the showing the nonparty’s fault contributed to the accident in order to include the nonparty on the verdict form.
  • Judgement on the pleadings: Judge looks at only the four corners of the pleadings which includes contracts and other necessary documents that are attached to the pleadings.
  • Summary Judgement: Judge looks at the pleadings and evidence such as discovery requests and responses, deposition transcripts, affidavits, stipulations and other documents allowed under the rules. Can the judge weigh this evidence when deciding if there is a genuine issue of material fact? NO.

RULE 1.170 – COUNTERCLAIMS AND CROSS CLAIMS

a) Compulsory Counterclaims: A defendant must include in their response any claim they have against the opposing party if it comes from the same event or situation that the opposing party's claim is based on. The claim can be skipped if it is already part of another case or if the court doesn’t have jurisdiction over the opposing party’s claim.

(b) Permissive Counterclaims: A defendant may also include claims that do not arise from the same event as the opposing party’s claim. These claims are not required but can be brought if desired.

(c) Counterclaim Exceeding Opposing Claim: A counterclaim can be for more money or different types of relief than what the opposing party is asking for.

(d) Counterclaim Against the State: These rules do not allow counterclaims against the state or government beyond what is allowed by law.

(e) Counterclaim After Pleading: If a claim arises after a party has already filed their response, they can add it as a counterclaim with court permission, as a supplemental pleading.

(g) Crossclaim Against Co-Party: A party can file a crossclaim against another party in the case if it relates to the original case or any counterclaims. This must be served properly, depending on whether the co-party has appeared in the case.

(h) Additional Parties: If the case requires bringing in new parties to resolve a counterclaim or crossclaim, these parties must be added and served properly, as long as the court can obtain jurisdiction over them.

(i) Separate Trials; Separate Judgment: If the court orders separate trials, a judgment on a counterclaim or crossclaim can be made even if the main claim is dismissed.

(j) Demand Exceeding Jurisdiction: If a counterclaim or crossclaim asks for more than the court can handle, the case must be moved to a court that can hear the claim.

CASES

  • Allie: Even if the statute of limitations bars a claim, recoupment allows a party to reduce what they owe, and the dismissal of a time-barred claim limits recovery to the amounts claimed by the other party.
  • A time-barred claim for specific performance cannot be raised as a counterclaim in real property contract disputes, as it would unfairly affect property title, and other remedies are available. Additionally, a statutory right of rescission under the Truth in Lending Act (TILA) cannot be revived as a defense of recoupment once the three-year statute of limitations has expired.
  • Rule: A statutory right of rescission under 15 U.S.C. Sec. 1635 cannot be revived as a defense of recoupment once the three-year statute of limitations has expired, as it functions like a statute of repose, barring actions after a specified time. Additionally, a mortgagor's compulsory counterclaim for fraud or breach of contract, arising from the same transaction, is not barred by the statute of limitations if it is related to the underlying claim.
  • A mortgagor's compulsory counterclaim, like a recoupment claim, can still be raised even if the statute of limitations has passed, as long as it arises from the same transaction or occurrence as the original claim, and in this case, Maynard's response created a genuine issue of fraud.

RULE 1.150 – SHAM PLEADINGS – HAVE TO BE VERIFIED

  • If a party believes another party's pleading is a "sham" (false or misleading), they can file a motion to strike it before the trial. The court will hear the motion and may strike the pleading if it's upheld, potentially entering default or summary judgment, or allowing additional pleadings with good cause. The motion must be supported by facts and may include an affidavit.

COUNTERCLAIMS, CROSSCLAIMS & THIRD PARTY CLAIMS

  • A compulsory counterclaim is “a defendant cause of action arising out of the transaction or occurrence that formed the subject matter of the plaintiff’s claim.”
  • Failure to raise a compulsory counterclaim in the first lawsuit results in a waiver of the claim. = MUST BE RAISED IN ORIGINAL SUIT.
  • The purpose of compulsory counterclaims is for judicial efficiency.
  • EXAMPLE: Alex sues Jordan for breaching a contract to sell a car. But Jordan says: “Alex actually breached first by not making the payment on time.” Since both claims are about the same contract and transaction, Jordan’s claim is a compulsory counterclaim. Jordan must bring it in this case, or they can't sue Alex for it later.
  • LOGICAL RELATIONSHIP TEST = used to decide whether a claim is compulsory.
  • Claims arise from the same set of facts, or
  • The facts in the original claim also give rise to legal rights in the defendant.
  • A counterclaim is only compulsory if it shares the same operative facts as the original complaint and the party had knowledge of those facts at the time of answering.

RULE 1.170 - CROSS CLAIM:

  • You can only file a cross-claim against someone who is already your co-party (like a co-defendant), and the claim must be related to the same facts or issues in the original case.
  • MORTGAGE FORECLOSURE CLAIM: While it is better to do so, a party DOES NOT have to file a cross-claim to claim surplus funds in a foreclosure case—as long as they are part of the case, they can claim the money in their regular pleadings. The court must still hold a hearing to decide who has priority to the surplus.
  • CO-D HAS INTEREST/CONTRIBUTION RIGHTS: When a co-defendant has contribution rights against another co-defendant, they have the right to appellate review. The co-defendant must file within thirty days of the ruling that favors the co-defendant.
  • However, the crossclaim was permissive because the right of contribution does not exist until “two or more persons become jointly or severally liable...”
  • So if two or more people had already been liable then the party can file a crossclaim instead of an appeal, but if the case was dismissed against the other DEF then the only option is to appeal.

RULE 1.170(H): ADDING PARTIES FOR COUNTERCLAIMS AND CROSSCLAIMS

  • If someone other than the original parties is needed to fully resolve a counterclaim or a crossclaim
  • These new people must be named in the counterclaim or crossclaim, served with notice, and become part of the lawsuit if:
  • The court can gain jurisdiction over them, and
  • Adding them won’t mess up the court’s ability to handle the case.

RULE 1.180: THIRD-PARTY PRACTICE

  • Allows a defendant in a lawsuit to bring someone else (called a third-party defendant) into the case if they think that person could be partly or fully responsible for the plaintiff’s claim against them.
  • A third-party complaint can be filed any time after the case begins, but it must be done within 20 days after the defendant answers the original lawsuit. If it’s filed later, the defendant needs permission from the court.

Key Points of Third-Party Practice (Rule 1.180)

  1. Defendant’s Rights:
    • The defendant can serve a third-party complaint to someone not already in the case if they think that person might be responsible for part or all of the claim.
    • The third-party defendant can then defend themselves, and even file counterclaims or crossclaims against others in the case.
  2. The Plaintiff’s Rights:
    • The plaintiff can also make claims against the third-party defendant if their claims relate to the same issues in the case.
  3. Options to Dispute Third-Party Claims:
    • Any party can ask the court to remove or separate the third-party claim if it feels unnecessary.
  4. When the Plaintiff Can Bring in a Third Party:
    • If a counterclaim is filed against the plaintiff, they can also bring a third party into the case, just like the defendant can.

INDEMNITY

  • Indemnity means that one party has to pay for something on behalf of another, even though they weren’t really at fault—and then they want to be repaid by the party who actually was at fault.
  • You can only get indemnity if you were held responsible without actually doing anything wrong—and the entire blame belongs to someone else. If you share the blame, even a little, indemnity doesn’t apply. = NO INDEMNITY ALLOWED BETWEEN JOINT TORTFEASERS.
  • Can’t go for indemnity before liability has been established.

Requirements:

  1. The party asking for indemnity must not be at fault at all.
    • If they did anything wrong, even a little, they can’t get indemnity.
  2. Their liability must be vicarious or legal—not direct.
    • This means they were held responsible only because of their legal relationship to someone else (like an employer being blamed for an employee’s mistake).
  3. The indemnity must come from the party who actually caused the harm.
    • You can’t shift the blame to someone who wasn’t at fault.
  4. There must be a “special relationship” between the two parties.
    • Example: employer–employee, principal–agent, contractor–subcontractor.
    • This relationship is what allows the blameless party to say, “I only got blamed because of my connection to you.”

INDEMNITY CONTRACTS

When two parties sign a contract that includes indemnity (an agreement to cover the other’s losses), it must be based on what both sides intended when they made the deal.

  • If the contract isn’t clear about who is supposed to cover what, the court can’t assume one party owes indemnity.

CONTRIBUTION – FL does not allow joint and several liability.

You can’t get contribution from another party unless you:

  1. Accuse them of fault, and
  2. Prove it in court – preponderance of the evidence.
    Just saying, “They should help pay,” isn’t enough—you have to show they actually caused part of the harm.

RULE 1.190 – AMENDED AND SUPPLEMENTAL PLEADINGS

(a) Amending Pleadings – Basic Rule

  • You can change your pleading once without asking the court, but only if:
    • The other side hasn’t responded yet, or
    • It’s a type of pleading that doesn’t get a response and it’s within 20 days of serving it.
    • BASICALLY - The rule clearly allows a plaintiff to amend their complaint one time without needing the court’s permission, as long as the defendant hasn’t filed an answer yet. A judge only has the power to deny an amendment if the defendant has already answered or if the plaintiff has already used their one free amendment.
  • After that, you can only amend if:
    • The court gives permission, or
    • The other side agrees in writing.
  • You must attach the new version when asking to amend.
  • The other party has 10 days to respond to your amended pleading (unless the court says otherwise).

(b) Amending to Match the Evidence

  • If both sides go along with issues at trial (whether express or implied consent) that weren’t in the pleadings, those issues are treated as if they were included.
  • Even if you didn’t update your pleading, the outcome still stands.
  • If someone objects during trial saying “that issue wasn’t in the pleadings,” the court can still allow an update if it won’t unfairly hurt the other party.
  • A judge cannot let a plaintiff add a new legal theory after trial closes if the defendant objects. That’s prejudicial and reversible error.
  • A party cannot amend at trial to conform to evidence if the opponent objects and shows prejudice (e.g., surprise).

(c) Relation Back of Amendments

  • If your new claim or defense is based on the same facts as the original pleading, it will be treated as if it was filed on the same date as the original.
    (This can be important for meeting deadlines.)
  • An amendment adding a new defendant after limitations can relate back if:
      • There was a misnomer, or
      • The originally named party misled the plaintiff into thinking they sued the right one.
  • New and separate causes of action (like loss of consortium) do not relate back if not tied to original claims.
  • New claims in amended complaints can relate back if they arise from the same conduct, transaction, or occurrence—even if they’re based on different facts or theories.

- Takeaway: Florida interprets Rule 1.190(c) broadly—new claims can relate back if based on the same underlying events.

(d) Supplemental Pleadings

  • You can ask the court to let you add new facts that happened after you filed your original pleading.
  • The court may also require the other side to respond to your new info.

(e) Fixing Errors

  • The court can allow any amendment or correction that helps move the case forward, as long as it’s fair and doesn’t hurt anyone’s rights.
  • Small mistakes that don’t affect the outcome can be ignored.
  • Court MUST disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

(f) Adding Punitive Damages

  • If you want to add a claim for punitive damages (extra money to punish the other side), you must:
    • Show proof or expected evidence that there’s a solid reason for it.
    • Give at least 20 days' notice to the other side before the hearing on it.
  • Appellate courts can only review whether the trial judge followed the procedural steps of §768.72. They can’t second-guess the judge’s evidence assessment.
  • Plaintiffs must get leave to amend before seeking punitive damages. Filing punitive damages in the original complaint violates §768.72.
  • The judge must find a reasonable basis for punitive damages before allowing the amendment—either with a hearing or a proffer.
  • If punitive damages are at issue in trial, the trial must be split—first decide liability, then consider how much in punitive damages.

RULE 1.080 – SERVICE AND FILINGS

  • If a defendant is in default, you don’t need to personally serve them again unless you add new claims. If just fixing a typo or correcting name, you can just mail the new amended complaint, but you don’t have to serve it all over again.
  • Once a plaintiff gets a default, they can’t add new defendants or change their complaint without asking the court first.
  • Courts have discretion to deny amendments when a case has been going on for years or is close to trial.
  • You must attach the proposed amended complaint to your motion.
  • The court does not have to allow more changes if you wait until the last minute, especially when you could have asked earlier.
  • Courts decision regarding amendments of pleadings should not be reversed unless the trial court abuses its discretion.
  • However, leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party or amending the pleading would be futile.
  • Even if the amendment is late, it can be allowed if:
  • The new issue was already discussed in summary judgment or pretrial.
  • The other party wasn’t surprised or harmed, and no new discovery was needed.
  • Trial by implied consent can happen if:
    • Both parties knew the unpled issue was part of the case.
    • Evidence about it was allowed without objection.
    • Letting the issue be tried won’t hurt the other side’s ability to respond.

Sometimes, an issue that wasn’t formally included in the pleadings gets treated as part of the case anyway. This is called trial by implied consent, and it happens when:

  1. Both parties clearly acted like the issue was already part of the case,
  2. Evidence related to that issue was introduced and not objected to,
  3. Allowing the issue to be part of the case doesn’t hurt the other party’s ability to defend themselves.

Example:
In trial, a plaintiff starts questioning a witness about a claim that wasn’t in the original complaint. The defendant doesn’t object. Later, the plaintiff asks the judge to add that claim officially. The court may allow it because both sides treated it like it was part of the case, and the defendant wasn’t caught off guard.

Affirmative defenses that weren’t officially raised in the pleadings can still be considered at trial if both sides allowed evidence about them without objection—as long as that evidence isn’t just related to other issues already in the case.

RULE 1.200 – CASE MANAGEMENT AND PRETRIAL PROCEDURE

1. Applicability & Exemptions (§1.200(a))

  • Rule 1.200 does not apply to: expedited procedures or trials, small claims (unless moved to civil court), probate or guardianship cases, administrative appeals, land takings (eminent domain), forfeitures, habeas corpus or criminal sentence challenges, prisoner cases without lawyers, enforcing subpoenas or arbitration awards, cases linked to other court actions, extraordinary writs, foreign judgment enforcement, judgment executions, cases in special court divisions, protection of vulnerable adults or guardian advocates, and any case requiring fast or priority handling by law.

2. Case Track Assignment (§1.200(b))

Within 120 days of filing the complaint:

  • Every case must be assigned to one of three tracks: SGC
    • Streamlined: Simple cases, few issues, limited discovery, trial ≤ 3 days.
    • General: Most typical civil cases.
    • Complex: Assigned under Rule 1.201 by court order.

Track assignment is based on judicial resources needed, not the dollar value of the case.

3. Case Management Order (§1.200(d))

The court must issue a case management order (CMO) within 120 days that includes deadlines for:

  • Service of complaint
  • Adding parties
  • Fact and expert discovery
  • Summary judgment motions
  • ADR (alternative dispute resolution)
  • Trial setting

The CMO deadlines are strictly enforced.

4. Extensions & Modifications (§1.200(e))

  • Extensions require court approval unless the deadlines don't affect others.
  • Detailed motions must explain why more time is needed and propose new dates.
  • Trial period changes must follow Rule 1.460 once set.

5. Notices of Unavailability (§1.200(f))

They do not excuse parties from CMO deadlines.

6. Case Management Conferences (§1.200(j))

  • May be ordered by the court or requested by parties.
  • Can address motions, scheduling issues, and even resolve motions if time allows.
  • Attorneys must come prepared with authority to decide and schedule.

7. Pretrial Conference (§1.200(k))

Held after a trial period is set, used to:

  • Clarify trial issues
  • Confirm witnesses, jury instructions, trial time estimates, and logistics
  • Discuss stipulations and trial order

RULE 1.200 – CONFLCIT WITH ADMINISTRATIVE ORDERS

  • The updated rule overrides any conflicting local case management rules or administrative orders. However, local courts (via chief judges) can still issue supplemental orders—like trial rollover procedures—as long as they don’t contradict Rule 1.200.

RULE 1.200 – CONFERALL

  • Before filing non-dispositive motions, the filing party must talk to the opposing party to try to resolve the issue. A certificate of conferral must be added at the end of the motion describing the effort.
  • Conferral is not required if either party is pro se ; or the motion is for:
      • Extra time to serve process
      • Default
      • Injunction
      • Judgment on the pleadings
      • Summary judgment
      • Dismiss for failure to state a claim
      • Class action certification
      • Involuntary dismissal
      • Dismissal for failure to prosecute
      • Directed verdict or Rule 1.530 motions
      • Enforcement (garnishment/attachment under Rule 1.570)
      • Writ of possession under Rule 1.580
      • Expedited proceedings under §51.011
      • Motions that don’t require notice to the other party

RULE 11.200 – SANCTIONS

  • If you skip the conferral without justification, the court can deny your motion or impose other penalties. Dodging communication on purpose can also lead to sanctions.
  • Dismissing a case with prejudice for failure to comply with court order is “the most severe of all sanctions which should be employed only in extreme circumstances.”
  • Trial judge must find that the party’s conduct was equivalent to willfulness or

deliberate disregard of the court’s orders.

  • SIX-PART KOZEL FACTOR TEST that judges must use to make sure that a party is not overly punished for the mistakes of their attorney.

1) whether he attorney’s behavior was willful, deliberate, or continuous, instead of neglectful or due to inexperience;

2) whether the attorney has previously been sanctioned;

3) whether the client was also involved in the disobedience;

4) whether the delay caused prejudice to the opposing party such as expense, loss of evidence, or some other way;

5) whether the attorney provided reasonable justification for noncompliance; and

6) whether the delay caused significant problems in judicial administration

RULE 1.210 – PARTIES

Real Party in Interest

  • The lawsuit must be brought by the person who actually owns or is entitled to enforce the legal right (the “real party in interest”).

Exceptions — People Who Can Sue in Their Own Name for Someone Else’s Benefit:

  • Even if they’re not the ultimate beneficiary, the following can sue without adding the real party in interest:
  • Personal Representative (estate cases)
  • Administrator (managing a decedent's estate)
  • Guardian (for minors or incapacitated adults) or next friend
  • Trustee of an express trust
  • A party to a contract made for someone else’s benefit
  • Someone authorized by law (statute) to sue

Joining Parties:

  • Multiple Plaintiffs: If people share an interest in the case or relief, they can join together to sue.
  • Defendants: Anyone who has or claims an opposing interest can be made a defendant.
  • Necessary/Proper Parties: Anyone whose participation is important to resolve the case fully can be added at any time.
  • United Interest: People with the same interest can be on the same side, and if one refuses to join, they can be added as a defendant.
    • A party includes not just those named in the case, but also anyone who controls, pays for, or directs the lawsuit.
    • Under Rule 1.250(c), the court can add parties at any stage of the case—even after judgment—if justice requires it. (parties can be added sua sponte or by motion).

FLA. STAT. § 57.105

  • Courts must award attorney’s fees and interest if a party or their lawyer knew, or should have known, that a claim or defense had no factual or legal basis.
  • Courts must also award costs and fees if the other side acted mainly to cause delay, such as by filing baseless motions or discovery demands.
  • Sanctions can’t be awarded if:
    • The claim was a good faith attempt to change the law.
    • The lawyer relied in good faith on what their client told them.
    • The party is represented and being sanctioned only for legal arguments.
    • The case was voluntarily dismissed or settled before sanctions were entered.
  • To seek sanctions, the motion must be served (but not filed) and the other side gets 21 days to fix or withdraw the problem.
  • In administrative hearings, fees can also be awarded the same way—against both the losing party and their attorney or rep.
  • These sanctions are in addition to any other remedies the law or rules allow.
  • If a contract allows one side to get fees, courts can award fees to the other side if they win, too.
  • Attorney’s fees generally can’t be awarded in injunction cases (like domestic violence), unless there’s clear and convincing evidence of knowingly false statements about key facts.

PARENTAL CLAIMS FOR CHILD INJURY

  • If a child (unemancipated minor) is hurt by someone else's wrongdoing, the parents or guardians can sue in their own names for:
  • Medical and hospital expenses,
  • Lost income (e.g., time off work to care for the child),
  • Loss of consortium (emotional harm from the child’s injury),
  • Lost income the child would have earned for the parents' benefit.
  • Both Florida and U.S. Constitutions require that both parents have equal rights to bring the claim—there can’t be discrimination based on gender.
  • Both parents must be parties to the lawsuit, and the court (judge or jury) will decide how to fairly divide the award based on each parent’s relationship with the child.

MINORS CAPACITY TO SUE

  • Minors cannot sue on their own due to the legal “disability of nonage” (they lack legal capacity to file or maintain a lawsuit).
  • Rule 1.210(b) requires that a guardian ad litem (GAL) or next friend represent the minor in court.
  • The minor is still the real party in interest, even if someone else brings the suit on their behalf.
  • This rule ensures proper court procedures and protects the minor’s best interests.
  • If a minor wrongly files a case on their own, it doesn’t void the case—it can be corrected by appointing a GAL or next friend later (procedural, not jurisdictional).

PARENTAL ACTIONS – DNA/LEGAL FATHER

  • A putative (alleged) father cannot file a paternity action on behalf of a minor child.
  • A child born into a marriage is considered legitimate, and has the right to maintain that status.
  • The legal father is the man married to the mother at birth and named on the birth certificate.
  • The legal father has rights that include maintaining his relationship with the child without being challenged.
  • Before allowing a DNA test in such cases, the court must hold a hearing with:
      • The parties involved,
      • The legal father (if he chooses to appear),
      • A Guardian ad Litem (GAL) for the child.
  • The judge can deny a DNA test if it would not be in the child's best interest to be declared illegitimate or to change legal parentage.
  • Rule 1.210 does not limit who can be designated as a next friend’ cant have conflicting interests.
  • A Privette hearing is a type of court hearing in Florida used to determine whether it is in a child’s best interests to allow a paternity challenge when the child is already considered legitimate — meaning born to a married couple and having a legal father. – MANDATORY IN THESE CASES and GAL has to be appointed.

RULE 1.210(A) – REAL PARTY IN INTEREST

  • Standing is having or representing someone who has, “a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.”
  • Standing = Right to bring a claim in court.
  • A person can bring a claim on behalf of another if that other person is the real party in interest.
  • Who Can Sue on Behalf of the Real Party in Interest?
  • Personal Representative (PR): sues for survivors in wrongful death (e.g., Parker).
  • Subrogee: insurer who pays a claim can sue in its own name (e.g., Holyoke).
  • Agent: can sue if the principal later approves (ratifies) it (e.g., Kumar, Juega).
  • Nominal Party: is someone who is included in a lawsuit but does not have a real interest in the outcome of the case.
  • The agent acts for the benefit of the real party in interest.
  • The principal can approve the agent's actions later through ratification.
  • Ratification gives the agent's actions retroactive legal effect.
  • A PR can file a wrongful death lawsuit for the benefit of the decedent’s survivors and estate. The PR is a nominal party, and the estate and survivors are the real parties in interest for whom recovery is pursued.

WRONGFUL DEATH AND SURVIVAL ACTIONS - FLA. STAT. SECTION 768.20 – PARTIES

  • No Survival of Personal Injury Claims: If the decedent was injured but died, the personal injury claim does not survive after death. Any personal injury lawsuit that was ongoing when the decedent died will end (abate).
  • Defendant's Personal Representative: If the wrongdoer (the defendant) dies before or during the lawsuit, the wrongdoer’s personal representative becomes the defendant in the wrongful death action.
  • Defense Against Survivors: If the wrongdoer has a defense that would limit or bar a survivor's recovery (such as contributory negligence), that defense may be used against the survivor who is suing. However, it will not affect the recovery of other survivors who are involved in the case.
  • Defendants who in good faith bargain with a PR are protected as if the PR properly exercised their power.

744.387 Settlement of claims – see class 13 PPT

  • In legal proceedings, courts have the authority to decide who the proper parties are for a lawsuit, not the legislature. The proper party in litigation is generally the person or entity with a legally protectable right or interest in the case. The party that holds the right or interest in question should be the one to bring the case forward.
  • The history of condominium laws and Rule 1.221 show that unit owners rights include the right of an individual unit owner to sue regarding construction defects or deficiencies in the common areas or common elements of a condominium complex

LAWSUITS AND SUING UNDER WHAT NAME / FICTICIOUS NAMES

  • Corporations are legal entities and should be sued in their official corporate name. However, if a party is sued under the wrong name, they can still appear and defend the case. If they don’t object to the misnomer through proper pleading or motion, they may still be bound by the resulting judgment.
  • A person not named in the lawsuit may become a de facto party defendant if they control the defense in their own interest and enjoy the rights of the actual parties involved.
  • Generally, only a party to the lawsuit can file a motion. However, anyone with a direct interest in the case may also make a motion, even if they are not formally a party.
  • To intervene in a lawsuit, the person must have a direct and immediate interest in the case, meaning they will either gain or lose from the legal outcome.
  • Standing refers to having a sufficient stake in the case's outcome. It applies not only to the right to sue but also to the right to defend in the case.
  • An entity lacks standing to file a motion to dismiss a case if it is not a party and does not have an interest that can be adversely affected by the outcome of the case
  • Subrogation and Real Party in Interest: A subrogee (like an insurer) inherits the right to pursue the cause of action, not a personal impediment from the original party (the subrogor).
      • Subrogee's Rights: When an insurer pays a loss on behalf of the insured, the insurer becomes a subrogee with the right to sue the tort-feasor (the wrongdoer) either in its own name or in the name of the insured.

SUBROGATION

Rule: If a claim is not raised in the trial court, it generally will not be considered on appeal. However, a trial court's ruling based on incorrect reasoning may still be upheld if there is another legal theory or principle in the record that supports the ruling.

Florida recognizes two types of subrogation: conventional subrogation and equitable subrogation.

  • Conventional subrogation arises from a contract between the parties, where the party paying the debt acquires the rights and remedies of the original creditor.
  • Equitable subrogation occurs due to the legal consequences of the acts and relationships of the parties and applies when:
    1. The subrogee paid to protect their own interest.
    2. The subrogee did not act as a volunteer.
    3. The subrogee was not primarily liable for the debt.
    4. The subrogee paid the full debt.
    5. Subrogation would not impose any injustice on the rights of a third party.

INDISPENSABLE OR NECESSARY PARTIES – DE NOVO

  • Necessary Party: A person whose rights or interests are impacted by a court’s decision and whose actions are controlled by the decree is considered a necessary party to the lawsuit. The court cannot proceed without including that person.
  • Dissolving an Injunction: A party can request the dissolution of an injunction even if the injunction is not directly issued against them, as long as the injunction negatively impacts their interests.
  • Indispensable Party: An indispensable party is one whose interest in the case is so significant that it is impossible to resolve the case without affecting that party’s rights or the rights of another party.
  • Paternity Actions: In paternity cases, children born during a marriage are presumed to be the child of the husband. This presumption is strong but can be rebutted. Paternity actions affect the legal father’s rights and have significant legal implications, such as potentially removing the legal father’s name from the child’s birth certificate. Therefore, the legal father is considered an indispensable party in such cases.

RULE 1.230. INTERVENTIONS

  • Who can intervene: Anyone with an interest in the ongoing lawsuit.
  • When: At any time during the case.
  • Condition: Intervention must acknowledge the main case’s legitimacy and be subordinate to it, unless the court says otherwise.
  • Discretion: The court has discretion to allow or limit the intervention.

Test for Intervention:

    • The interest must be direct and immediate — the intervenor must gain or lose based on the judgment.
    • It must relate to the claim or demand in the lawsuit.

Court’s Discretion:

    • Judge decides if the interest is appropriate.
    • Court considers:
      • Origin of the interest
      • Contract terms (if any)
      • Size of the interest
      • Risk of new issues or conflicts
      • Any other relevant factors
    • If granted, intervention is limited to protecting that interest — not full participation unless allowed.

*** The denial of a motion to intervene will only be reversed upon finding an abuse of discretion by the trial Judge.

*** A Fabre defendant is someone partially at fault for an incident but not directly named in the lawsuit as a defendant.

*** A person should be joined in an action to reform a deed if a ruling could divest that person of whatever interest he or she might have in the property.

RULE 1.240. INTERPLEADER – Rule adds to joinder. Doesn’t limit Joinder. ( De Novo)

  • If multiple people might claim the same thing from the plaintiff (e.g., money or property), the plaintiff can join them all as defendants in one lawsuit through interpleader to avoid being held liable more than once.
  • The requirement for interpleader “is that the stakeholder ‘is or may be exposed to double or multiple liability’ for competing claims to a single fund.”
  • A plaintiff (or defendant by counterclaim or crossclaim) can use interpleader to join people who may have conflicting claims, even if:
  • Their claims don’t have a common origin
  • Their claims are separate or adverse
  • The plaintiff denies being liable to any of them
  • You only have to plead that you are or may be exposed to multiple liability. Yous don’t have to plead that you are an innocent stakeholder.
  • Rule 1.240 says that “[a] defendant exposed to similar liability may obtain such interpleader by way of crossclaim or counterclaim.” However, a party that fails to plead a compulsory counterclaim in a pending case can still file an independent case on the same claim.

RULE 1.250: MISJOINDER & NONJOINDER OF PARTIES

(a) Misjoinder:

  • Not grounds for dismissal
  • Claims can be severed and tried separately

(b) Dropping Parties:

  • Can drop a party like a voluntary dismissal (Rule 1.420(a)(1))
  • If a lis pendens was filed, dropping the party automatically cancels it when recorded
  • Court can drop parties at any time if fair

(c) Adding Parties:

  • Can add a party once as a matter of course (same rule as amending pleadings under Rule 1.190(a))
  • After that, need court permission or agreement of the parties
  • Court may also add parties anytime if just

Rule/Reasoning – Voluntary Dismissal vs. Dropping a Party

  • Rule 1.420(a)(1) allows a plaintiff to dismiss an entire action before trial or a hearing on a motion for summary judgment.
    • This rule is used when the plaintiff wants to end the whole case, either against a single defendant or all defendants.
  • Rule 1.250(b) is the proper rule when the plaintiff wants to drop only one party from a multi-party case.
    • Once a valid notice to drop a party is filed, the court has no discretion to deny it and loses jurisdiction over that party.
    • A court cannot rule on a dropped party’s motion (like summary judgment) after they’ve been dismissed from the case.

627.7403 MANDATORY JOINDER OF DERIVATIVE CLAIM

  • In any personal injury lawsuit under § 627.737, all claims arising from the plaintiff’s injuries—including related or “derivative” claims (like loss of consortium by a spouse)—must be brought together in the same action, unless there is good cause to bring them separately.
  • When an underinsured motorist (UM) insurer (insurance company) is properly sued and joined as a party in a lawsuit against a tortfeasor under 627.727(6), the jury should be told that the insurer is a party to the case.
  • If the uninsured motorist (UM) insurer does not consent to a proposed settlement with the tortfeasor, the injured party must sue both the tortfeasor and the UM insurer in the same action. This is because the statute requires joinder, making the UM insurer a necessary party, and the jury must know who it is making liability decisions about.
  • A jury must be informed of the exact identity of the uninsured or underinsured motorist (UM) insurance carrier if it is a party in the trial. Simply identifying the insurance company as the plaintiff's insurer without clarifying its full role (such as being the underinsured carrier) does not provide the jury with a full understanding of the insurer's position in the case.

RULE 1.260. SURVIVOR; SUBSTITUTION OF PARTIES

(a) Death

  • If a party dies and the claim is not extinguished, the court may order substitution of the proper party.
  • A motion for substitution can be made by any party or the deceased party’s successor or representative.
  • This motion must be filed and served within 90 days after a statement noting the death.
  • If not filed within 90 days, the action will be dismissed as to the deceased party.
  • If a plaintiff or defendant dies and the right sought to be enforced survives only to the surviving party(ies), the action does not abate and will continue with the surviving parties.

(b) Incompetency

  • If a party becomes incompetent, the court may allow the action to continue by or against the party’s representative upon a motion being filed.

(c) Transfer of Interest

  • In case of a transfer of interest, the action can continue by or against the original party unless the court orders the transferee to be substituted or joined with the original party.
  • The motion for substitution or joinder must be filed and served as outlined in subdivision (a).

(d) Public Officers; Death or Separation from Office

  1. If a public officer dies, resigns, or otherwise ceases to hold office, the action does not abate. The officer’s successor is automatically substituted as a party.
  2. When a public officer is sued in an official capacity, the officer’s official title can be used in place of their name unless the court requires the officer’s name to be added.

*** The PR of a deceased party's estate can be substituted into the action when a plaintiff dies, and this substitution enables the filing of an amended complaint that includes both wrongful death claims and survival damages. This ensures that liability for the decedent's injuries is not avoided, and the action remains ongoing to determine liability, even after death.