Insurance companies will not hesitate to try to capitalize (pre- or post-litigation) on a claimant’s death … take it from a guy who has (twice in the last month alone) encountered carrier efforts to get out from underneath a claim through procedural technicalities following a claimant’s passing. However, if properly handled, the claimant’s death does not extinguish a pending claim.
If the claimant passes away pre-suit, you will have to continue with the claim adjustment (or commence litigation, depending on claim status) through the claimant’s representative. This, of course, begs the question: who is a legally sufficient representative? Surprisingly, there is a scarcity of case law on the subject. But, in my opinion, it would be appropriate to proceed with adjustment or litigation using a “lawful representative,” “legal-personal representative,” or “personal representative.” Often, these different kinds of representatives are one and the same person. A “lawful representative” is defined as “an executor or administrator.”1 A “legal-personal representative,” in the property context, is defined as “one to whom the real estate passes immediately upon the testator’s death.”2 And “personal representative” is defined as “a person who manages the legal affairs of another because of incapacity or death, such as the executor of an estate.”3
If the claimant passes away post-suit, beware of suggestion of death and substitution laws. In Florida, Rule of Civil Procedure 1.260 sets forth the process that needs to be followed after a party’s death. In sum, Florida law requires a suggestion of death to be filed following a party’s death and a motion for substitution to be filed within ninety days of the suggestion of death filing. Rule 1.260 is usually strictly enforced, with an occasional equitable exception being made (e.g., equitable estoppel or unclean hands).
Moral of the story – do not give up on a claim because the claimant has passed away. As discussed above, there are ways to keep the claim alive despite the claimant no longer being alive.
1 Bryan A. Garner, Black’s Law Dictionary 604 (2001 2d pocket ed.).