Probate, trust, guardianship and inheritance litigation
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Florida’s Third District Holds Vicarious Liability Claims Against Estate Time Barred Under Creditor Claim Probate Statutes and Certifies Conflict With the Fourth

By:  Jeffrey Skatoff, Esq.

In Tsuji v. Fleet, an August 4, 2021 opinion from Florida’s First District Court of Appeal, the court affirmed summary judgment finding that vicarious liability claims against an estate were time barred by the two-year statute of limitations applicable to Florida creditor claims, and certified a conflict with the Fourth District’s opinion in Pezzi v. Brown.

The Facts of Tsuji v. Fleet

Samantha Tsuji and Crystal Williams (Appellants) were injured in a motor vehicle accident in June 2014.  Thomas E. Morton Jr., while he was working for The Lewis Bear Company (LBC) and driving an LBC-owned vehicle, collided with Appellants’ car.

Within four years of the accident, Appellants sued Morton and LBC, alleging that Morton was negligent and caused injury to Appellants. Appellants alleged that LBC was vicariously liable for Morton’s actions. Not long after they sued, Appellants learned that Morton died a few weeks after the accident. Appellants moved to substitute H. Bart Fleet, as the personal representative of Morton’s estate, for Morton.

LBC then moved for summary judgment, arguing that Appellants’ claims were barred by sections 733.702(5) and 733.710(1), Florida Statutes (2013), of the Florida Probate Code. Those statutes require creditors to present claims against a decedent’s estate within two years of the decedent’s death.  In support of its motion, LBC cited Buettner v. Cellular One, Inc., 700 So. 2d 48 (Fla. 1st DCA 1997).

Appellants opposed the motion. Citing the Fourth District’s decision in Pezzi v. Brown, 697 So. 2d 883 (Fla. 4th DCA 1997), they argued that a plaintiff may bring a cause of action against a tortfeasor’s estate more than two years after the tortfeasor’s death when the plaintiff seeks to recover damages only from the tortfeasor’s casualty insurance. Appellants argued that their claim against Morton’s estate was not barred because they were not seeking to hold the estate liable. Rather, they sought to recover damages from Morton’s casualty insurer, and only up to the limits of the insurance policy.

The trial court entered summary judgment for LBC.  The trial court found that if Appellants could not hold Morton’s estate liable, LBC could not be vicariously liable for Morton’s negligence. The court found that under section 733.710(1), Appellants had to file any claims against Morton’s estate within two years of his death. Because Appellants sued outside the time limits in section 733.710(1), the court determined that the claims against Morton and LBC were time-barred.

Time Limits On Florida Creditor Claims

Creditor claims and the applicable timelines are often a trap for the unwary in any litigation involving the estate of a decedent.  We have written about cases involving creditor claims here, here, here, and here, in addition to the Complete Guide To Creditor Claims in Florida Probate.

The Florida Probate Code sets forth time limits for a creditor to present claims against a decedent’s estate.

Section 733.702 Of the Florida Probate Code – Time Limitations On Presentation Of Creditor Claims

Section 733.702(1) requires creditors to present most claims within three months after the first publication of the notice to creditors or within thirty days after service on a creditor.  See Deadlines and Timelines In Florida Probate.

Section 733.702(2) provides that no cause of action will survive the decedent’s death unless the creditor files the claim within the time set out in the statute.

Section 733.702(4) contains an exception to the time limit set forth in section (1) of the statute.  Section (4) exempts from the time limits for presenting a claim in subsection (1), “[t]o the limits of casualty insurance protection only, any proceeding to establish liability that is protected by the casualty insurance.”

In other words, when a creditor files an action to establish liability of the estate and casualty insurance covers that liability, the creditor need not present its claim against the estate within the time for presenting claims under section 733.702(1). But if the creditor presents a claim that seeks recovery beyond the limits of the casualty insurance policy, the creditor must present the claim to the estate within time limits established in section 733.702(1).

Section 733.710 Of the Florida Probate Code – Limitations On Claims Against Estates – Ultimate Two-Year Deadline

Section 733.710 provides a hard cut off for presenting a claim against a decedent’s estate, stating:

Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.

Section 733.710 is a jurisdictional statute of nonclaim and is not subject to extension.

The Third District considered the plain language of the statute, stating:

Under the plain language of the statute, the estate, the personal representative, and the beneficiaries of the estate are not liable for any claim or cause of action against the tortfeasor decedent unless the creditor presents the claim within two years of the death of the decedent…. The purpose of section 733.710 aligns with the Probate Code’s central purpose of fostering the expeditious settlement of the estate of decedents. This goal of expediency explains why plaintiffs have four years to bring tort actions against living tortfeasors but only two years to bring the same claim against decedent tortfeasors.

Thus, Appellants had to file their cause of action within two years of Morton’s death.

Can a Vicarious Liability Suit Proceed Without Filing a Timely Creditor Claim?

No, because decedent’s liability must be established through the entry of a judgment before the insurer can be liable.

Appellants argued that while the nonclaim statute, section 733.710, bars untimely claims against the estate, the personal representative, and the beneficiaries of the estate, the statute does not bar claims against a decedent’s casualty insurer— even when filed beyond the statute’s two-year limitations period. Appellants argued that if the Legislature intended to limit claims against a decedent’s casualty insurer, it could have included insurers among the parties not liable for claims filed beyond the two-year limit in section 733.710.

The Third District Court of Appeal disagreed, stating:

Although section 733.710(1) does not list casualty insurers among the parties who are not liable for untimely claims against an estate, an insurer cannot be liable for such claims until a creditor seeks and perfects a claim against the decedent tortfeasor through the entry of a judgment establishing the decedent’s liability.

Under Florida’s non-joinder statute, section 627.4136(1), Florida Statutes, a plaintiff may not file a “direct action” against a liability insurer without first obtaining a settlement or a verdict against the insured. See Lexington Ins. Co. v. James, 295 So. 3d 367, 372 (Fla. 1st DCA 2020) (explaining that, under the nonjoinder statute, an injured party has no interest in the tortfeasor’s liability policy until a court enters judgment against the insured). Thus, until a plaintiff establishes the liability of the decedent tortfeasor (through his estate) and then obtains a settlement or verdict against the insured decedent tortfeasor (through his estate), the plaintiff cannot proceed against the insurer. But to present a claim against a decedent tortfeasor and his estate, the plaintiff must present their claims against the estate within the limitations period set out in Part VII of the Probate Code. Thus, to present their claim against Morton’s estate (and ultimately hold Morton’s casualty insurer liable), Appellants had to file their claim seeking to establish the liability of Morton and his estate within two years of Morton’s death.

Certified Conflict With The Fourth District Court Of Appeal

The Third District certified conflict with the Fourth District’s decision in Pezzi v. Brown.

In Pezzi, the Fourth District held that the nonclaim statute did not bar an action against an insurer because the limitation on liability under the statute “is specific to the decedent’s estate, the personal representative, and the beneficiaries; the limitation does not extend to the decedent’s insurance policy.” The Pezzi court did not consider whether an action seeking to hold a decedent’s casualty insurer liable up to the policy limits is barred by sections 733.702(5) and 733.702(10) if filed more than two years after the decedent’s death.  The Third District acknowledged that the Florida Supreme Court has cited Pezzi with approval, but in dicta, and, like Pezzi, did not consider section 733.702(5)’s express limitation on claims under section 733.702.

Stay tuned to see what comes next in this dispute involving time limitations and Florida creditor claims.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

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