PBCBA BAR BULLETINS pbcba_bulletin_April 2019 | Page 22

PERSONAL INJURY C o r n e r
Motion Back of Appointment of Personal
Representative In Wrongful Death Case
TED BABBITT
In Lindor v. Florida East Coast Railway,
LLC, 255 So. 3d 490 (Fla. 3rd DCA 2018) the
Third District was faced with the question
of whether a trial court’s order striking
plaintiffs’ complaint and dismissing the
complaint should be affirmed because
of the failure of the plaintiffs to obtain
an appropriate order from the probate
court appointing them as personal
representatives of the decedent’s estate
or rather whether the subsequent
appointment should relate back to the
original filing.
Plaintiffs’ decedent was allegedly struck
and killed by a freight train operated by
the defendant. A wrongful death action
was brought only two days before the
expiration of the statute of limitations on
behalf of a minor daughter of the decedent.
The complaint alleged that the plaintiffs
had been properly appointed as personal
representatives of the estate of the
decedent but, in fact, that had not occurred
at the time of the filing. Several years after
the filing of the Complaint, defendants
were apprised of the true state of affairs
and moved to dismiss the complaint as a
sham pleading claiming that the filing had
been done with knowledge of the plaintiffs
that they were not properly designated as
co-personal representatives of the estate of
the decedent.
Plaintiffs petitioned the probate court
for an order appointing them as personal
representatives of the decedent’s estate
and obtained an order prior to the trial court
entering its order granting the defendant’s
motion to strike the plaintiffs’ complaint
and dismissing the action.
Thus, the Third District was faced with the
issue of whether the late designation of the
plaintiffs’ as co-personal representatives
could relate back to the original filing of the
complaint or not. The Third District held
that the order appointing plaintiffs as co-
personal representatives did, in fact, relate
back relying on the Supreme Court case of
Griffin v. Workman , 73 So. 844 (Fla. 1954).
In Griffin, supra, the father of the decedent
minor child ironically filed a complaint two
days before the expiration of the statute of
limitations just as had been done in the
Lindor case. Also, just as was true in the
Lindor case, Griffin had not been appointed
personal representative at the time of the
filing of the complaint but obtained such
an appointment prior to the trial court
granting the defendant’s motion to dismiss
based upon the failure of the plaintiffs to
obtain proper appointment prior to filing
the suit. The Supreme Court reversed
holding that the late appointment of a
personal representative related back to the
date of the original filing of the complaint.
At 331, the Supreme Court held that where
a wrongful death action was instituted by
a party “as administrator,” his subsequent
appointment as such validated the
proceeding on the theory of relation back.
. . . [T]he institution of suit “was not a void
performance, being an act done during the
interim which was for the benefit of the
estate. It could not be otherwise, for it was
an attempt to enforce a claim which was
the only asset of the estate. This rule is
sustained by a large number of authorities,
and * * * appears, also, to be just and
equitable.
[T]he proceeding was not a nullity. It
was, on the other hand, a cause pending
in which, but the liberal principles of our
Code, the party plaintiff, though lame in
one particular, might be allowed to cure
that defect and proceed to a determination
of the merits.
Griffin concluded that the filing of an action
for wrongful death by one who is purported
to be (but has not yet been appointed) a
personal representative is not a nullity.
Rather, upon that individual being properly
named as personal representative, his
status (and therefore his capacity to sue)
relates back to the date of the
original filing of the complaint.
In the Estate of Eisen v. Philip Morris, USA,
Inc., 126 So. 3d 323 (Fla. 3rd DCA 2013) the
Third District concluded that there were
four principal factors to be considered
in determining whether to permit an
amendment to substitute a party plaintiff
and whether such a substitution should
relate back. Those factors included
PBCBA BAR BULLETIN
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[1)] [w]hether the timely-filed action gave
the defendants
fair notice of the legal claim and the
underlying allegations;
[2)] [w]hether there is an identity of interest
between the original and substituted
plaintiff;
[3)] [w]hether the amendment caused any
prejudice to the defendants; and
[4)] [w]hether the amendment to substitute
plaintiffs would create a “new” cause of
action.
Relying on these cases the Third District
in Lindor, supra, determined that all of
those factors favored substitution of
the now properly designated personal
representatives, relating their designation
back to the filing of the original complaint
and reversed the trial court and remanded
the case for reinstatement of the action.
Palm Beach County Bar Association
presents
How To Avoid Landmines
While Wrapping Up Wrongful
Death Cases as well as Minor
Settlements
Monday, May 20th, 2019
11:30 AM - 1:30 PM
Palm Beach Bar Association
Register Online Today!
PalmBeachBar.org