PBCBA BAR BULLETINS pbcba_bulletin_march 2018 | Page 15

PROBATE C o r n e r
Application Of The Delayed Discovery Doctrine
To Undue Influence Claims
DAVID M. GARTEN
A cause of action accrues or begins to run when the last element of the cause of action occurs. An exception is made for certain causes
of action in which the accrual of the cause of action is delayed until the plaintiff either knows or should know that the last element of
the cause of action occurred. This is commonly referred to as the “Delayed Discovery Doctrine”.
The general statutory basis for the Delayed Discovery Doctrine is §95.031(2)(a), F.S. which reads: “An action founded upon fraud under
s. 95.11(3), including constructive fraud, must be begun within the period prescribed in this chapter, with the period running from the
time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence,
instead of running from any date prescribed elsewhere in s. 95.11(3), but in any event an action for fraud under s. 95.11(3) must be
begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been
discovered.”[Emphasis added]
With regard to non-disclosures in trust accountings and a trustee’s active concealment of facts supporting a cause of action for breach
of trust, refer to §736.1008, F.S. Subsection 6(b) reads: “When a beneficiary shows by clear and convincing evidence that a trustee actively
concealed facts supporting a cause of action, any existing applicable statute of repose shall be extended by 30 years.”
In Florida, the Delayed Discovery Doctrine has limited application:
Cause of Action Apply? Authority
Fraud Yes Davis v. Monaham, 832 So. 2d 708
(Fla. 2002)
Products liability Yes Id.
Professional & medical
malpractice Yes Id.
Intentional torts based on abuse/
childhood sexual abuse Yes Id.
Undue influence Yes *Flanzer v. Kaplan, 2017 Fla. App.
LEXIS 17696; 42 Fla. L. Weekly D
2525; 2017 WL 575904 (Fla. 2nd DCA
11/29/17
*In re Guardianship of Rekasis, 545
So. 2d 471 (Fla. 2nd DCA 1989)
Breach of fiduciary duty
(generally) No *Patten v. Winderman, 965 So. 2d
1222 (Fla. 4th DCA 2007)
*Davis v. Monanhan, 832 So. 2d 708
(Fla. 2002)
Breach of trust Yes §736.1008, F.S.
Breach of conduct No *Access Ins. Planners, Inc. v. Gee,
175 So. 3d 921 (Fla. 4th DCA 2015)
*Med. Jet, S.A. v. Signature Flight
Support Palm Beach, Inc., 941 So. 2d
576 (Fla.4th DCA 2006)
PBCBA BAR BULLETIN
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