In the regular course of Deputy Chief Judging, I ran across an intriguing order from almost two decades ago. It was a procedural dismissal of a petition, which closed that litigation. It was old enough that none of the lawyers involved practiced any longer. The circumstances likely occur very infrequently, but are worthy of consideration.
The parties were faced with the death of the injured worker. When death occurs, there are various issues that may require sorting. For example, pending benefits may be due, or at least claimed, but not provided while the employee lived. Those might include consideration of section 440.13 or 440.15, Florida Statutes.
There might also be benefits due pursuant to section 440.16, Florida Statutes, commonly called "death benefits." There are various benefits in that section, including dependent income benefits, education benefits, and funeral expenses.
Why does it matter which section is involved?
The topic can be complex, and there are various requirements or proofs for benefit entitlement. But for the purposes of this post, know that some benefits might be due to the estate of the deceased workers, and others might be due to dependents of that worker. And thus we arrive at the point of the order I read recently,
The order addressed the death of a worker and resulted in an evidentiary hearing. The "question" was whether the requirements of "Fla. R. Civ. P. 1.260(a)(1) of moving for Substitution of a Party within 90 days" were met. The entire issue of the case was, essentially, whether a Florida Rule of Civil Procedure had been complied with.
The Florida Rules of Civil Procedure do not apply in Florida workers' compensation proceedings, except and unless they have been incorporated specifically in the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications. Hint for the reader, Rule 1.260 has not been.
The judge concluded somehow that this Civil Procedure Rule did apply, but did not explain how. The order then outlines that the rule allows a person 90 days to substitute in another party (the estate, etc.) to pursue benefits that were due or claimed by the now deceased worker.
Building on the faulty foundation of Rule 1.260, the judge conducted an evidentiary hearing on the 90-day period. Concluding that there had been no substitution within the 90 days, the judge then considered "Whether ... good cause (excused) not requesting an extension," and "Whether claimant's counsel has shown excusable neglect?" Despite the fatally flawed foundation, the order had some logic to this point.
The evidence demonstrated that a "suggestion of death" was filed (as directed by the inapplicable civil rules), and that no substitution was filed after that for over eight months. About a year after the worker passed, the worker's former attorney filed a motion to appoint a representative.
The astute lawyers, by now, are questioning "who does the lawyer represent?" Can a lawyer represent someone who is no longer living? Certainly, one could represent an estate, a personal representative, or others affiliated with the rights of a deceased. But the deceased themselves? This is highly doubtful. A detail, but worthy of consideration.
The judge interpreted the late-filed motion as a request to enlarge time for filing the substitution, that is, to extend the 90 days in the civil rules, the civil rules that the parties and judge were referring to, i.e., Rule 1.260.
There, the judge shifted gears. Explaining that the extension of the period would not be determined using the rule Claimant's counsel sought, Fla. R. Civ. P. l .090(b). The judge, despite being in the midst of a curious foray into Rule 1.260, then explained that:
"Fla. R. Civ. P. l .090(b) is inapplicable in workers' compensation proceedings. In workers' compensation proceedings, extensions of applicable time frames are allowed under Rule 60Q-6. l l 5(5)."
This is a true statement. But, while in the midst of applying and enforcing one inapplicable Rule of Civil Procedure, 1.260, the conclusion to ignore a second one may seem troubling, curious, or at least interesting.
The end result was essentially that because the 60Q rules did not afford extension of time, then the period in Rule 1.260 was controlling and essentially absolute. The substitution not being filed in 90 days was deemed fatal, the petitions dismissed, and the client disappointed.
The result seems clear, perhaps, and yet questions remain. First, how can one civil procedure rule apply to foreclose a claim and yet another not apply to adjust the deadline?
But, the more imperative question is likely who was the client? Like the old Abbot and Costello routine -
Costello: Look, when you pay off the first baseman every month, who do you pay the money to?
Abbott: Every dollar of it
Costello: Yeah. Look, you gotta pay the money to somebody on first base, don't you?
Abbott: Yeah
Costello: Does he give you a receipt?
Abbott: Sure
Costello: How does he sign the receipt?
Abbott: Who
Costello: The guy that you give the money to
Abbott: Who
Costello: The guy you give the money to
Who is the client? The person entitled to benefits is who? If the judge enters an order compelling payment of benefits, the name on the check is Who? (sic). The routine could go on for days.
Who does the attorney represent? How can you tell? Look at the notice of appearance. See Who Represents this Party? (November 2014); Limited Appearance (May 2023); How to Transition Cases upon the Death of Counsel (December 2014); Amendments and Change (February 2025).
Hint - if the client dies, the lawyer does not represent them anymore. They might represent dependents (section 440.16), or might represent the estate (section 440.15 or 440.13), or could represent both unless there is some conflict. Many fail to see that there can easily be conflict in the section 440.16 setting with various dependents and their competing interests.
How could a lawyer react when a client dies?
- File a new notice of appearance on behalf of a dependent survivor or the estate, Rule 60Q6.104.
- File a motion to substitute party, Rule 60Q6.115 ("Any request for an order or for other relief").
Either would likely get one in the door. Is one better than another? Is there a flaw or challenge with either? Questions for the judge, and perhaps for the arguments of the parties. Any reason a lawyer could not file both?
But in either event, the filing lawyer should represent the person(s) or entity that is seeking to be part of the litigation. That is, there should be an attorney/client relationship. That may seem axiomatic, but it confuses some. A few have continued on seeking benefits despite lacking a client (the client dies, you cannot represent a dead person).
Years ago, there was an instance in which a lawyer filed a petition in a case on behalf of a man who was injured and who had been in a coma since the accident. When asked how that man had hired the attorney, the lawyer blithely admitted the worker, of course, had not. The worker's girlfriend had.
What legal authority did the girlfriend have to hire an attorney? What legal authority does an unmarried friend have to convey? I shall never forget that attorney's confusion. The issue was well beyond their comprehension, and I have often wondered how the matter ever ended up.
Nonetheless, the situation described here is challenging. The death of a worker has to be a difficult and emotional time, regardless of circumstances. The intricacies and challenges of a workers' compensation claim or litigation would naturally be a secondary concern at best in such a moment. But the decision in this matter reminds us that there is some sense of urgency in addressing the litigation.
Clearly, the judge was correct "Fla.R.Civ.P. l .090(b) is inapplicable in workers' compensation proceedings," and it is as likely that Rule 1.260 is no more applicable. In those two conclusions, there is consistency.
However, lawyers can make arguments. It is suggested that the better course is in the consistency of the path with Rule 60Q6.104 and Rule 60Q6.115. But can there be any harm in arguing Rule 1.260? Might the lawyer make a persuasive case for its application? Having provided multiple proposed paths, might the chances of prevailing be enhanced?
But still, might the question of "Who" be better answered first?
