42
Fla. L. Weekly D439cTop of Form
Fla. L. Weekly D439cTop of Form
Torts
— Automobile accident — Vicarious liability — Dangerous instrumentality
doctrine — Decedent’s estate was not liable under dangerous instrumentality
doctrine for damages caused by decedent’s daughter while driving decedent’s car
after decedent’s death and before the appointment of decedent’s stepson as
personal representative — Upon decedent’s death his car became an asset of his
estate, but decedent’s stepson, as the nominated personal representative, had
no legal duty to prevent decedent’s daughter from driving decedent’s car —
Because plaintiffs cannot demonstrate that decedent’s daughter had implied
consent to drive decedent’s car, trial court properly granted summary judgment
for defendant estate on claim under dangerous instrumentality doctrine
— Automobile accident — Vicarious liability — Dangerous instrumentality
doctrine — Decedent’s estate was not liable under dangerous instrumentality
doctrine for damages caused by decedent’s daughter while driving decedent’s car
after decedent’s death and before the appointment of decedent’s stepson as
personal representative — Upon decedent’s death his car became an asset of his
estate, but decedent’s stepson, as the nominated personal representative, had
no legal duty to prevent decedent’s daughter from driving decedent’s car —
Because plaintiffs cannot demonstrate that decedent’s daughter had implied
consent to drive decedent’s car, trial court properly granted summary judgment
for defendant estate on claim under dangerous instrumentality doctrine
SAMUEL
M. DEPRIEST and DOROTHY DEPRIEST, Appellants, v. RICHARD GREESON, as Personal
Representative of the ESTATE OF CHRISTIAN W. SCHNITZSPAHN, Appellee. 1st
District. Case No. 1D16-0807. Opinion filed February 21, 2017. An appeal from
the Circuit Court for Walton County. Thomas R. Santurri, Judge. Counsel: Erin
Pogue Newell and Roy D. Wasson of Wasson & Associates, Chartered, Miami;
Henry Lawrence Perry and H. Les McFatter of Perry & Young, P.A, Panama
City, for Appellants. Michael W. Kehoe of Quintairos, Prieto, Wood & Boyer,
P.A., Pensacola, for Appellee.
M. DEPRIEST and DOROTHY DEPRIEST, Appellants, v. RICHARD GREESON, as Personal
Representative of the ESTATE OF CHRISTIAN W. SCHNITZSPAHN, Appellee. 1st
District. Case No. 1D16-0807. Opinion filed February 21, 2017. An appeal from
the Circuit Court for Walton County. Thomas R. Santurri, Judge. Counsel: Erin
Pogue Newell and Roy D. Wasson of Wasson & Associates, Chartered, Miami;
Henry Lawrence Perry and H. Les McFatter of Perry & Young, P.A, Panama
City, for Appellants. Michael W. Kehoe of Quintairos, Prieto, Wood & Boyer,
P.A., Pensacola, for Appellee.
(KELSEY,
J.) In the gap between a decedent’s death and the appointment of a personal
representative, does Florida’s dangerous instrumentality doctrine make the
estate vicariously liable for damages that the decedent’s child allegedly
caused while driving the decedent’s car? On the specific facts presented here,
which are undisputed, the trial court concluded that the estate is not liable,
and granted summary judgment in favor of the personal representative. On these
facts, but on reasoning different from that articulated in the final judgment,
we affirm.
J.) In the gap between a decedent’s death and the appointment of a personal
representative, does Florida’s dangerous instrumentality doctrine make the
estate vicariously liable for damages that the decedent’s child allegedly
caused while driving the decedent’s car? On the specific facts presented here,
which are undisputed, the trial court concluded that the estate is not liable,
and granted summary judgment in favor of the personal representative. On these
facts, but on reasoning different from that articulated in the final judgment,
we affirm.
Use
of Decedent’s Car
of Decedent’s Car
Decedent
and his wife lived with Decedent’s adult daughter in Milton, Florida. His car
and its keys were kept at his daughter’s house, and she occasionally drove his
car with his permission. There is no evidence that Decedent ever gave his
daughter permission to continue to use the car in the event of his death.
Decedent’s will made no specific bequest of the car, and named his daughter and
stepson as equal co-beneficiaries under the residuary clause. About a month
after he died, his daughter was driving his car and came upon the scene of a
recent accident in which Appellants, Samuel Depriest and his grandmother, were
in a car that had collided head-on with an oncoming vehicle, killing the other
driver.* Decedent’s daughter collided with Mr. Depriest’s disabled car,
allegedly causing damages to Appellants in addition to what they suffered in
the original collision.
and his wife lived with Decedent’s adult daughter in Milton, Florida. His car
and its keys were kept at his daughter’s house, and she occasionally drove his
car with his permission. There is no evidence that Decedent ever gave his
daughter permission to continue to use the car in the event of his death.
Decedent’s will made no specific bequest of the car, and named his daughter and
stepson as equal co-beneficiaries under the residuary clause. About a month
after he died, his daughter was driving his car and came upon the scene of a
recent accident in which Appellants, Samuel Depriest and his grandmother, were
in a car that had collided head-on with an oncoming vehicle, killing the other
driver.* Decedent’s daughter collided with Mr. Depriest’s disabled car,
allegedly causing damages to Appellants in addition to what they suffered in
the original collision.
Appellants
initially sued Decedent as owner of the car, before realizing he had died. They
amended their complaint, suing Decedent’s estate in addition to Decedent’s
daughter (later dropping her from the case). They alleged the estate was
vicariously liable for damages caused by the daughter’s use of Decedent’s car
because the estate had legal title to the car. They also alleged that the
personal representative had prior knowledge of the daughter’s use of the car
and implied control over the car, and had impliedly consented to the daughter’s
use of the car by failing to take any affirmative action to prevent her from
using it. Although the complaints did not articulate a specific species of
vicarious liability, ultimately Appellants relied on the dangerous
instrumentality doctrine, which they argue on appeal.
initially sued Decedent as owner of the car, before realizing he had died. They
amended their complaint, suing Decedent’s estate in addition to Decedent’s
daughter (later dropping her from the case). They alleged the estate was
vicariously liable for damages caused by the daughter’s use of Decedent’s car
because the estate had legal title to the car. They also alleged that the
personal representative had prior knowledge of the daughter’s use of the car
and implied control over the car, and had impliedly consented to the daughter’s
use of the car by failing to take any affirmative action to prevent her from
using it. Although the complaints did not articulate a specific species of
vicarious liability, ultimately Appellants relied on the dangerous
instrumentality doctrine, which they argue on appeal.
The
personal representative nominated in Decedent’s will was Decedent’s stepson,
who lived in South Carolina. Through discovery, the evidence established that
when the stepson was in Florida for Decedent’s funeral, he took the car title
to a local Florida probate attorney along with other papers needed to open a
probate case. He did not take possession of the car or its keys. There is no
evidence that there was any communication between Decedent’s stepson and
Decedent’s daughter about her use of Decedent’s car, nor any evidence that the
stepson knew the daughter intended to use Decedent’s car or knew that she did
use it. Directly to the contrary, he testified that he did not instruct her not
to use the car, because he did not know she had ever used it and would not have
thought Decedent would have ever given her permission to use it. He knew she
had her own car and assumed she would not drive Decedent’s car. Therefore he
did not think he had any reason to take the keys or the car itself, or to
prohibit her from using the car. Appellants did not adduce any evidence
disputing these facts.
personal representative nominated in Decedent’s will was Decedent’s stepson,
who lived in South Carolina. Through discovery, the evidence established that
when the stepson was in Florida for Decedent’s funeral, he took the car title
to a local Florida probate attorney along with other papers needed to open a
probate case. He did not take possession of the car or its keys. There is no
evidence that there was any communication between Decedent’s stepson and
Decedent’s daughter about her use of Decedent’s car, nor any evidence that the
stepson knew the daughter intended to use Decedent’s car or knew that she did
use it. Directly to the contrary, he testified that he did not instruct her not
to use the car, because he did not know she had ever used it and would not have
thought Decedent would have ever given her permission to use it. He knew she
had her own car and assumed she would not drive Decedent’s car. Therefore he
did not think he had any reason to take the keys or the car itself, or to
prohibit her from using the car. Appellants did not adduce any evidence
disputing these facts.
Decedent’s
daughter called the stepson and reported the accident the day after it
occurred. A probate case for Decedent’s estate was filed four days after the
accident, and letters of administration issued twenty days after the accident,
appointing Decedent’s stepson as the personal representative. The car was
insured, and the insurer totaled it, paying the proceeds of the policy into the
estate, where the money was later listed as an asset.
daughter called the stepson and reported the accident the day after it
occurred. A probate case for Decedent’s estate was filed four days after the
accident, and letters of administration issued twenty days after the accident,
appointing Decedent’s stepson as the personal representative. The car was
insured, and the insurer totaled it, paying the proceeds of the policy into the
estate, where the money was later listed as an asset.
Summary
Judgment Standards
Judgment Standards
A
trial court’s order granting summary judgment is reviewed de novo. Cantalupo
v. Lewis, 47 So. 3d 896, 898 (Fla. 4th DCA 2010) (applying de novo review
to affirm summary judgment for defendant in negligent entrustment case); Ruano
v. Water Sports of Am., Inc., 578 So. 2d 385, 386 (Fla. 3d DCA 1991)
(affirming summary judgment where there was no negligent entrustment as a
matter of law). In this case the material facts are undisputed, leaving only
their legal effect in question, which we review de novo. Cantalupo, 47
So. 3d at 898.
trial court’s order granting summary judgment is reviewed de novo. Cantalupo
v. Lewis, 47 So. 3d 896, 898 (Fla. 4th DCA 2010) (applying de novo review
to affirm summary judgment for defendant in negligent entrustment case); Ruano
v. Water Sports of Am., Inc., 578 So. 2d 385, 386 (Fla. 3d DCA 1991)
(affirming summary judgment where there was no negligent entrustment as a
matter of law). In this case the material facts are undisputed, leaving only
their legal effect in question, which we review de novo. Cantalupo, 47
So. 3d at 898.
Ownership
of the Car
of the Car
Before
the trial court and again on appeal, the parties have disputed whether the
estate owned Decedent’s car after he died. The trial court concluded that the
estate was not the title holder or otherwise the owner when the accident
occurred. Although we agree with the trial court’s ultimate disposition of the
case, we do not agree that the estate had no legal ownership interest in Decedent’s
car. When Decedent died, “in the twinkling of a legal eye,” the car became an
asset of his estate. Sharps v. Sharps, 214 So. 2d 492, 495 (Fla. 3d DCA
1968) (holding that an uncashed check payable to the decedent became an asset
of his estate the instant he died, and his widow would have to prove that it
was a gift to her individually in order to obtain the proceeds for herself). See
also Mills v. Hamilton, 163 So. 857, 858 (Fla. 1935) (“It is well settled
that at the death of the owner of any personal property the title thereto vests
in his personal representative and during the administration the personal
representative is entitled to the possession of the same.”).
the trial court and again on appeal, the parties have disputed whether the
estate owned Decedent’s car after he died. The trial court concluded that the
estate was not the title holder or otherwise the owner when the accident
occurred. Although we agree with the trial court’s ultimate disposition of the
case, we do not agree that the estate had no legal ownership interest in Decedent’s
car. When Decedent died, “in the twinkling of a legal eye,” the car became an
asset of his estate. Sharps v. Sharps, 214 So. 2d 492, 495 (Fla. 3d DCA
1968) (holding that an uncashed check payable to the decedent became an asset
of his estate the instant he died, and his widow would have to prove that it
was a gift to her individually in order to obtain the proceeds for herself). See
also Mills v. Hamilton, 163 So. 857, 858 (Fla. 1935) (“It is well settled
that at the death of the owner of any personal property the title thereto vests
in his personal representative and during the administration the personal
representative is entitled to the possession of the same.”).
Although
Decedent’s car was an asset of the estate, it did not belong to anyone
individually. Decedent’s will did not bequeath the car to anyone, and his
daughter and stepson were co-equal beneficiaries under the residuary clause of
the will. Therefore, neither the daughter nor the stepson had any specific
right to the car, nor did either of them as individuals have a superior right
against the other to prohibit use of the car. The car was an asset of the
estate and subject to administration. In re Vettese’s Estate, 421 So. 2d
737, 738 (Fla. 4th DCA 1982) (holding that property improperly transferred
directly to decedent’s daughters must be returned to the estate for proper
administration under the terms of the will and governing law); see also §
731.201(14), Fla. Stat. (2013) (defining “estate” as “the property of a
decedent that is subject to administration”); Blechman v. Estate of Blechman,
160 So. 3d 152, 157 (Fla. 4th DCA 2015) (“If the subject property will pass
either intestate or by way of a will, then it is part of the decedent’s probate
estate.”). Ultimate ownership of the car would not be determined until after
resolution of claims, taxes, debts, expenses of administration, and other
obligations of the estate, if any. It might have ended up being sold to pay the
estate’s obligations, no longer belonging to the estate or any beneficiary.
Decedent’s car was an asset of the estate, it did not belong to anyone
individually. Decedent’s will did not bequeath the car to anyone, and his
daughter and stepson were co-equal beneficiaries under the residuary clause of
the will. Therefore, neither the daughter nor the stepson had any specific
right to the car, nor did either of them as individuals have a superior right
against the other to prohibit use of the car. The car was an asset of the
estate and subject to administration. In re Vettese’s Estate, 421 So. 2d
737, 738 (Fla. 4th DCA 1982) (holding that property improperly transferred
directly to decedent’s daughters must be returned to the estate for proper
administration under the terms of the will and governing law); see also §
731.201(14), Fla. Stat. (2013) (defining “estate” as “the property of a
decedent that is subject to administration”); Blechman v. Estate of Blechman,
160 So. 3d 152, 157 (Fla. 4th DCA 2015) (“If the subject property will pass
either intestate or by way of a will, then it is part of the decedent’s probate
estate.”). Ultimate ownership of the car would not be determined until after
resolution of claims, taxes, debts, expenses of administration, and other
obligations of the estate, if any. It might have ended up being sold to pay the
estate’s obligations, no longer belonging to the estate or any beneficiary.
Control
of the Car
of the Car
Clearly,
Decedent’s daughter had actual physical control of Decedent’s car. Both the car
and its keys were kept at her house, where her late father and stepmother had
lived with her. She claimed that Decedent had allowed her to use his car on
occasion and that she believed she had the right to use the car after his
death. These facts are undisputed. She did not claim or prove, however, that
her father had ever given her permission to use the car in the event of his
death. He did not give her the car in his will, which made no bequest of the
car, naming his daughter and stepson as co-equal beneficiaries under the
residuary clause. At the time of the accident, therefore, the daughter had no
ownership interest in the car or express permission for post-death use of the
car. She simply got the keys and drove the car.
Decedent’s daughter had actual physical control of Decedent’s car. Both the car
and its keys were kept at her house, where her late father and stepmother had
lived with her. She claimed that Decedent had allowed her to use his car on
occasion and that she believed she had the right to use the car after his
death. These facts are undisputed. She did not claim or prove, however, that
her father had ever given her permission to use the car in the event of his
death. He did not give her the car in his will, which made no bequest of the
car, naming his daughter and stepson as co-equal beneficiaries under the
residuary clause. At the time of the accident, therefore, the daughter had no
ownership interest in the car or express permission for post-death use of the
car. She simply got the keys and drove the car.
The
stepson’s legal status was different. Upon appointment by the court, the
stepson in his capacity as personal representative would have the right to
control the assets of the estate as authorized by Decedent’s will and the law.
§ 733.608, Fla. Stat. (“All real and personal property of the decedent, except
the protected homestead, within this state and the rents, income, issues, and
profits from it shall be assets in the hands of the personal representative . .
.” for payment of expenses and obligations of the estate, for contribution,
advancement, and distribution.). The personal representative’s duties and
powers commence upon appointment. § 733.601, Fla. Stat. Under the Probate Code,
acts performed by the person appointed, “occurring before appointment and
beneficial to the estate,” have the same effect as acts taken after
appointment. Id. (emphasis added).
stepson’s legal status was different. Upon appointment by the court, the
stepson in his capacity as personal representative would have the right to
control the assets of the estate as authorized by Decedent’s will and the law.
§ 733.608, Fla. Stat. (“All real and personal property of the decedent, except
the protected homestead, within this state and the rents, income, issues, and
profits from it shall be assets in the hands of the personal representative . .
.” for payment of expenses and obligations of the estate, for contribution,
advancement, and distribution.). The personal representative’s duties and
powers commence upon appointment. § 733.601, Fla. Stat. Under the Probate Code,
acts performed by the person appointed, “occurring before appointment and
beneficial to the estate,” have the same effect as acts taken after
appointment. Id. (emphasis added).
This
authority, however, does not impose on the nominated personal representative
any statutory duty to act prior to appointment. Richard v. Richard, 193
So. 3d 964, 968-69 (Fla. 3d DCA 2016) (affirming that relation-back doctrine
codified in section 733.601 reflected intent to avoid imposing legal duties on
personal representative prior to appointment and assumption of statutory
duties). These authorities establish that a nominated or putative personal
representative has the legal authority to act for the benefit of the estate
prior to appointment, but is not statutorily required to do so.
authority, however, does not impose on the nominated personal representative
any statutory duty to act prior to appointment. Richard v. Richard, 193
So. 3d 964, 968-69 (Fla. 3d DCA 2016) (affirming that relation-back doctrine
codified in section 733.601 reflected intent to avoid imposing legal duties on
personal representative prior to appointment and assumption of statutory
duties). These authorities establish that a nominated or putative personal
representative has the legal authority to act for the benefit of the estate
prior to appointment, but is not statutorily required to do so.
In
this case, Appellants argued that Decedent’s stepson as nominated but not yet
appointed personal representative had the right to control Decedent’s car, and
that such authority to control established both an identifiable property
interest in the car and implied consent to Decedent’s daughter’s use of the car
because he took the title to a probate lawyer shortly after Decedent died but
failed to take the keys or the car itself. Based on the authorities cited
above, we disagree with the trial court’s reasoning on the question of the
stepson’s right to control the car. We nevertheless affirm the entry of summary
judgment in favor of the estate.
this case, Appellants argued that Decedent’s stepson as nominated but not yet
appointed personal representative had the right to control Decedent’s car, and
that such authority to control established both an identifiable property
interest in the car and implied consent to Decedent’s daughter’s use of the car
because he took the title to a probate lawyer shortly after Decedent died but
failed to take the keys or the car itself. Based on the authorities cited
above, we disagree with the trial court’s reasoning on the question of the
stepson’s right to control the car. We nevertheless affirm the entry of summary
judgment in favor of the estate.
The
facts relevant to this issue are undisputed and do not demonstrate actual
knowledge or consent (nor do Appellants argue actual consent). We conclude that
because Decedent’s stepson had no legal duty to prevent Decedent’s daughter
from using Decedent’s car, Appellants cannot demonstrate implied consent, which
is an essential element of their claim under the dangerous instrumentality
doctrine. See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638,
644-45 (Fla. 1999) (articulating the “tipsy coachman” doctrine that “if a trial
court reaches the right result, but for the wrong reasons, it will be upheld if
there is any basis which would support the judgment in the record”).
facts relevant to this issue are undisputed and do not demonstrate actual
knowledge or consent (nor do Appellants argue actual consent). We conclude that
because Decedent’s stepson had no legal duty to prevent Decedent’s daughter
from using Decedent’s car, Appellants cannot demonstrate implied consent, which
is an essential element of their claim under the dangerous instrumentality
doctrine. See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638,
644-45 (Fla. 1999) (articulating the “tipsy coachman” doctrine that “if a trial
court reaches the right result, but for the wrong reasons, it will be upheld if
there is any basis which would support the judgment in the record”).
The
Dangerous Instrumentality Doctrine
Dangerous Instrumentality Doctrine
Florida’s
dangerous instrumentality doctrine is a creature of common law that “imposes .
. . vicarious liability upon the owner of a motor vehicle who voluntarily
entrusts that motor vehicle to an individual whose negligent operation causes
damage to another.” Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000)
(citing S. Cotton Oil Co. v. Anderson, 86 So. 629, 638 (Fla. 1920) (On
Petition for Rehearing)). An owner voluntarily entrusts a vehicle to another
when it gives that person authority to operate the vehicle by “either express
or implied consent.” Id. (citing Hertz Corp. v. Jackson, 617 So.
2d 1051, 1053 (Fla. 1993)).
dangerous instrumentality doctrine is a creature of common law that “imposes .
. . vicarious liability upon the owner of a motor vehicle who voluntarily
entrusts that motor vehicle to an individual whose negligent operation causes
damage to another.” Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000)
(citing S. Cotton Oil Co. v. Anderson, 86 So. 629, 638 (Fla. 1920) (On
Petition for Rehearing)). An owner voluntarily entrusts a vehicle to another
when it gives that person authority to operate the vehicle by “either express
or implied consent.” Id. (citing Hertz Corp. v. Jackson, 617 So.
2d 1051, 1053 (Fla. 1993)).
The
undisputed facts here do not demonstrate express consent, and Appellants do not
argue otherwise. Rather, they rely entirely on implied consent. Most vehicle
cases involving implied consent examine factors such as what a car owner knows
about the driver’s prior use of the vehicle, the location and accessibility of
the keys, the nature of any familial relationship between owner and driver, and
the conduct of the parties after an accident occurs. Ming v. Intramerican
Car Rental, Inc., 913 So. 2d 650, 656 (Fla. 5th DCA 2005). The factors set
forth in Ming, however, do not establish implied consent in this case.
It is undisputed that Decedent’s stepson did not even know Decedent’s daughter
had ever had permission to drive the car, did not think that Decedent would
have allowed her to use the car, and did not know that she had ever driven the
car. The relationship between Decedent’s daughter and his stepson, and their
locations with one living in Florida and the other in South Carolina, in no way
establish consent. After the accident, the only evidence of interaction between
the two of them was Decedent’s daughter’s phone call to her stepbrother to
inform him of the accident, again demonstrating no knowledge or control by the
stepson. The undisputed facts of this case fail to establish the element of
consent necessary to maintaining a cause of action under Florida’s dangerous
instrumentality doctrine. See, e.g., Dooley v. Harris, 714 So. 2d 1206
(Fla. 5th DCA 1998) (affirming summary judgment upon finding no evidence of
implied consent in undisputed facts).
undisputed facts here do not demonstrate express consent, and Appellants do not
argue otherwise. Rather, they rely entirely on implied consent. Most vehicle
cases involving implied consent examine factors such as what a car owner knows
about the driver’s prior use of the vehicle, the location and accessibility of
the keys, the nature of any familial relationship between owner and driver, and
the conduct of the parties after an accident occurs. Ming v. Intramerican
Car Rental, Inc., 913 So. 2d 650, 656 (Fla. 5th DCA 2005). The factors set
forth in Ming, however, do not establish implied consent in this case.
It is undisputed that Decedent’s stepson did not even know Decedent’s daughter
had ever had permission to drive the car, did not think that Decedent would
have allowed her to use the car, and did not know that she had ever driven the
car. The relationship between Decedent’s daughter and his stepson, and their
locations with one living in Florida and the other in South Carolina, in no way
establish consent. After the accident, the only evidence of interaction between
the two of them was Decedent’s daughter’s phone call to her stepbrother to
inform him of the accident, again demonstrating no knowledge or control by the
stepson. The undisputed facts of this case fail to establish the element of
consent necessary to maintaining a cause of action under Florida’s dangerous
instrumentality doctrine. See, e.g., Dooley v. Harris, 714 So. 2d 1206
(Fla. 5th DCA 1998) (affirming summary judgment upon finding no evidence of
implied consent in undisputed facts).
Rather
than use the Ming factors to establish implied consent, Appellants rely
on Decedent’s stepson’s failure to act despite having authority to act — with
his knowledge of authority to act demonstrated by his taking the car title to a
probate lawyer. We reject this argument as a matter of law. To say that implied
consent arises from a nominated personal representative’s failure to act when
authority to act exists is to create a duty to act prior to appointment,
directly contrary to the Probate Code’s distinction between authority and duty.
§ 733.601, Fla. Stat.; Richard, 193 So. 3d at 968-69. Appellants’
argument could subject nominated personal representatives to liability from
which the Legislature intended to shield them in the period after a death and
before issuance of letters of administration formally appointing them as
personal representatives. The law does not impose such a duty on facts such as
those presented here. Accordingly, we affirm the trial court’s entry of summary
judgment in favor of the estate.
than use the Ming factors to establish implied consent, Appellants rely
on Decedent’s stepson’s failure to act despite having authority to act — with
his knowledge of authority to act demonstrated by his taking the car title to a
probate lawyer. We reject this argument as a matter of law. To say that implied
consent arises from a nominated personal representative’s failure to act when
authority to act exists is to create a duty to act prior to appointment,
directly contrary to the Probate Code’s distinction between authority and duty.
§ 733.601, Fla. Stat.; Richard, 193 So. 3d at 968-69. Appellants’
argument could subject nominated personal representatives to liability from
which the Legislature intended to shield them in the period after a death and
before issuance of letters of administration formally appointing them as
personal representatives. The law does not impose such a duty on facts such as
those presented here. Accordingly, we affirm the trial court’s entry of summary
judgment in favor of the estate.
AFFIRMED.
(LEWIS and ROWE, JJ., CONCUR.)
(LEWIS and ROWE, JJ., CONCUR.)
__________________
*Mr.
Depriest was charged with vehicular homicide as a result of the head-on
collision that occurred when he was driving the wrong way in the oncoming lane
after midnight. The charges were dismissed for lack of the requisite
recklessness, but reinstated on appeal. State v. Depriest, 180 So. 3d
1099 (Fla. 1st DCA 2015). He was later tried and acquitted.
Depriest was charged with vehicular homicide as a result of the head-on
collision that occurred when he was driving the wrong way in the oncoming lane
after midnight. The charges were dismissed for lack of the requisite
recklessness, but reinstated on appeal. State v. Depriest, 180 So. 3d
1099 (Fla. 1st DCA 2015). He was later tried and acquitted.
* *
*
*