Late is Late

FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 32
CASES FROM THE WEEK AUGUST 13, 2021

PLAINTIFFS’ CLAIMS AGAINST DECEDENT DRIVER’S ESTATE TIME-BARRED FOR FAILURE TO MAKE A CLAIM WITHIN TWO YEARS OF THE DEATH, EVEN TO THE EXTENT OF THE INSURANCE COVERAGE

Tsuji v. Fleet, 46 Fla. L. Weekly D1766 (Fla. 1^st DCA August 4, 2021):

The plaintiffs were injured in an accident in 2014, by driver working for a corporation, driving a corporation-owned vehicle. Within four years of the accident, plaintiffs sued the defendants alleging negligence. Not long after they sued, the plaintiffs learned that the driver had died a few weeks after the accident. They then moved to substitute the personal representative of the estate as the party.

The defendants argued that plaintiffs could not bring a cause of action against the tortfeasor’s estate more than two years after the tortfeasor’s death (even when the plaintiffs seek to recover damages only from the tortfeasor’s insurance). The trial court found that plaintiffs could not hold the defendant’s estate liable, and therefore could not hold the corporation vicariously liable either.

The court concluded that Section 733.710 bars an action against the decedent’s casualty insurer if the claim is not filed within two years of the decedent’s death. The court explained that Section 733.710 is a jurisdictional statute of non-claim, that automatically bars untimely claims and is not subject to waiver or extension in the probate proceedings.

While the court acknowledged that authority exists that seems to allow a creditor to recover up to the policy limits of a decedent’s casualty insurance even with a total failure to file a timely claim, the court further noted that the authority never addressed the express limitations on claims set forth in the statute.

Because the employer could not be vicariously liable if the claims against its employee were time-barred, the appellate court affirmed the trial court’s entry of summary judgment for the defendant. However, the court also certified conflict with the Fourth District’s decision in Pezzi v. Brown, 697 So.2d 883 (Fla. 4^th DCA 1997), which it felt may have conflicted with its ruling to some extent.

IN A STUNNING MOVE ON REHEARING, THE FOURTH DISTRICT REVERSES ITSELF FINDING NO PROBABLE CAUSE TO ARREST THE PLAINTIFF FOR VIDEOTAPING THE POLICE ON A PUBLICLY ACCESSIBLE SIDEWALK

Ford v. City of Boynton Beach, 46 Fla. L. Weekly D1755 (Fla. 4^th DCA August 4, 2021):

The Fourth District originally upheld the motion for summary judgment entered in favor of the City on the plaintiff’s claim of false arrest. The plaintiff argued that law enforcement did not have probable cause to arrest her for intercepting oral communications and for obstruction without violence when she was filming the arrest of her son on her cell phone.

On rehearing, the court found that as a matter of law police officers could not have had a reasonable expectation that communications on the sidewalk were not subject to interception under circumstances justifying an expectation, as required by the wiretap statute, and there was no probable cause to arrest the plaintiff for violating the wiretap statute.

Additionally, the officers did not have probable cause to arrest her for obstruction, because her words and actions did not constitute obstruction of the officers in the performance of their duties. The plaintiff was recording and asking the officers if they were going to arrest and harass her for videotaping the scene at which they were arresting her son for allegedly sneaking into a movie, and had testified that she believed the officers had been aggressive with her and feared being put in handcuffs.