Substitutes for Dead Plaintiffs and Defendants

Death is inevitable, and sometimes it happens while a lawsuit is pending. What can we do to keep the action alive?

Look first at Tenn. Code Ann. §20-5-102. It is a long single sentence: “No civil action commenced, whether founded on wrongs or contracts, except actions for wrongs affecting the character of the plaintiff, shall abate by the death of either party, but may be revived; nor shall any right of action hereafter based on the wrongful act or omission of another, except actions for wrongs affecting the character, be abated by the death of the party wronged; but the right of action shall pass in like manner as the right of action described in §20-5-106 [wrongful death].”

Then look at Tennessee Rule of Civil Procedure 25.01 entitled “Substitution of Parties–Death.”

(1) 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 the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of process. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

Assume we represent a plaintiff who dies after commencement. Defense counsel immediately serves us with suggestion of death. The clock ticks, calendar pages turn, and we do nothing for 90 days. Then we receive a motion to dismiss with prejudice.

Is there any remedy? Not really. Rule of Civil Procedure 6.02 allows enlargement of time even after the fact “where the failure to act was the result of excusable neglect.” What is our excuse?

Let’s contact our client and our malpractice carrier and sip a cool beer … or two or three.


Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute.