The Florida Supreme Court has resolved long-outstanding issues about whether a timely-filed creditor claim against a decedent’s estate is necessary to pursue recovery from an otherwise liable insurance company or an employer under a theory of vicarious liability. In Tsuji v. Fleet, SC2021-1255 (Fla. 2023), the Florida Supreme Court held that a valid and timely lawsuit must be filed against a decedent as a prerequisite to recovery from an insurance company or an employer under a respondeat superior theory.
As explained by the Court, the Florida Probate Code contains two statutes of limitations for claims against decedent’s estates, 733.702 and 733.710.
The Court explained that 733.710(1) operates as a statute of repose or nonclaim. Probate lawyers often refer to this provision as the creditor claim “brick wall.” That section provides as follows:
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.
§ 733.710(1), Fla. Stat.
The Court explained that there are only two exceptions to the probate statute of nonclaim, as follows:
There are only two exceptions to this statute of repose or nonclaim. Subsection (2) provides that section 733.710(1) “shall not apply to a creditor who has filed a claim pursuant to s. 733.702 within 2 years after the person’s death, and whose claim has not been paid or otherwise disposed of pursuant to s. 733.705.” § 733.710(2), Fla. Stat. And subsection (3) provides that section or other lien on property of the decedent.”), and section 733.702(4)(c), Florida Statutes (“The filing of a cross-claim or counterclaim against the estate in an action instituted by the estate; however, no recovery on a cross-claim or counterclaim shall exceed the estate’s recovery in that action.”). 733.710(1) “shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien.” § 733.710(3), Fla. Stat. Neither of these exceptions addresses casualty insurance.
The case before the Florida Supreme Court involved an attempt to pursue a recovery from an insurance company, even though the decedent had been dead more than two years with no creditor claim having been filed against the decedent. As explained by the Court:
The petitioners filed their claims more than two years after Morton’s death. If the petitioners’ claims seek to hold Fleet “liable” for claims against Morton, then they are barred under section 733.710(1). So we have to decide: is Fleet “liable” under section 733.710(1) given that the petitioners seek only payment from a casualty insurance provider? We decide he is, and that therefore petitioners’ claims are untimely.
The Court came to the same conclusion regarding the liability of the decedent’s employer: a timely creditor claim against the decedent’s estate is required to proceed.
When a statute of repose bars claims against an agent for negligence, the principal is exonerated from vicarious liability arising solely from that agent’s negligence.
And because an alleged vicariously liable employer and its employee “are in no sense joint tort-feasors,” a party must establish an employee’s liability in a vicarious liability action against the employer. See Williams, 86 So. at 697. If a party fails to do so, thus exonerating the employee, “a principal cannot be held liable” either. Bankers Multiple Line Ins. Co. v. Farish, 464 So.2d 530, 532 (Fla. 1985).
As a principal’s vicarious liability is dependent on that of the agent, allowing such a lawsuit to proceed against the principal when a statute of nonclaim bars the underlying claim against the agent would effectively permit a plaintiff to circumvent the statute.
The importance of filing a timely creditor claim against a decedent’s estate cannot be understated. Such claims are critical to pursue claims against the decedent’s estate, as well as third parties who can be liable under various derivative theories.
