DAREYL FUNCHESS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SAMANTHA MCHELLON FUNCHESS, DECEASED, ON BEHALF OF THE ESTATE AND ON BEHALF OF THE SURVIVORS OF THE DECEDENT, TO WIT: DAREYL FUNCHESS, SURVIVING SPOUSE; LAJUAN JAMAR FUNCHESS, A MINOR; SAMUEL MCHELLON, A MINOR, HELEN WHITE AND DONIAL MCHELLON, NATURAL PARENTS, APPELLANT,
v.
GULF STREAM APARTMENTS OF BROWARD COUNTY, INC., JOHN V. TINGLOF, ROBERT R. TINGLOF AND IVER A. TINGLOF, APPELLEES
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In a wrongful death action arising from the death of Samantha Funchess, the trial court dismissed the case for lack of a personal representative. The Florida Fourth District Court of Appeal reversed, holding that an administrator ad litem may maintain a wrongful death action under Florida law, as the term 'personal representative' is not statutorily limited to permanently appointed representatives.
An administrator ad litem may properly maintain a wrongful death action because the statutory term 'personal representative' encompasses administrators ad litem, and the wrongful death statute provides for liberal construction. The trial court erred in dismissing the action because appellees failed to show prejudice from continuation by the administrator ad litem, and the appellant timely attempted to substitute a successor administrator ad litem within the court's deadline.
[1] An administrator ad litem may maintain a wrongful death action when the term "personal representative" encompasses an administrator ad litem under statutory definitions.
[2] A court shall appoint an administrator ad litem without bond when it is necessary that an estate be represented and there is no personal representative.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“"Personal representative" means the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor.”
Establishes the statutory definition of 'personal representative' from section 731.201(25), showing it includes multiple types of fiduciary appointments
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Join FLexlaw to unlock all legal intelligenceDareyl Funchess initially filed a wrongful death action as the properly appointed personal representative of his deceased wife's estate on January 26,…
The full statement of facts, procedural history, and disposition for this case are member content.
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DELL, Judge.
Appellant contends the trial court erred when it dismissed this action for the wrongful death of Samantha Funchess and entered judgment for appellees.1 We agree and reverse and remand this cause for further proceedings.
The trial court’s order neither contains findings nor states reasons for its dismissal of appellant’s action. Appellant contends the trial court erred if it dismissed this action based upon the inability of an administrator ad litem to maintain a wrongful death action originally brought in the name of a personal representative. In the alternative, appellant contends the trial court abused its discretion if it dismissed this suit based upon appellant’s failure to timely obtain the appointment of a personal representative.
Appellant initially filed this wrongful death action in the name of a personal representative properly appointed by the probate division. The probate division thereafter removed the personal representative at. the request of the decedent’s mother and appointed John Spellacy as administrator ad litem of the estate. Appel-lees did not move to dismiss when the court appointed Spellacy as administrator ad li-tem. Only after Spellacy resigned and appellant failed to have a successor administrator ad litem appointed did appellees move to dismiss for lack of a personal representative.
Appellant argues an administrator ad li-tem may properly maintain a wrongful death action because the term “personal representative” encompasses the term “administrator ad litem”. The wrongful death statute, section 768.18, Florida Statutes (1989), does not define the term “personal representative”. However, section 731.-201(25) provides:
“Personal representative” means the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor. Section 733.308 provides the circumstances where a court must appoint an administrator ad litem:
When it is necessary that an estate be represented and there is no personal representative of the estate, the court shall appoint an administrator ad litem without bond for that particular proceeding.
Rule 5.120(a), Florida Rules of Probate and Guardianship, permits the appointment of an administrator ad litem in the following circumstances:
When it is necessary that the estate of a decedent ... be represented in any probate ... proceeding and there is no personal representative of the estate ..., or the personal representative ... is or may be interested adversely to the estate ..., or is enforcing his own debt or claim against the estate ..., or the necessity arises otherwise, the court may appoint an administrator ad litem ... without bond or notice for that particular proceeding.
(emphasis added).
Appellant points out section 768.17, Florida Statutes (1989), provides the wrongful death statute “shall be liberally construed.” Section 768.20 states in part:
The action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death..
The statute, therefore, requires a single action brought by a personal representative to recover damages for all beneficiaries under the act. By requiring the personal representative to bring a single action, the statute eliminates the potential for competing beneficiaries to race to judgment, preferential treatment of one or more beneficiaries in the disposition of their claims and, most significantly, multiple claims and lawsuits against the wrongdoer. An administrator ad litem must represent the beneficiaries of the estate with the same degree of neutrality and fidelity as a personal representative and an administrator ad litem is always subject to the supervision of the appointing court. The proceeds of any judgment recovered in the wrongful death action by an administrator ad litem would be protected and distributed as provided by the Probate Code. See In re Estate of Cordiner, 458 So. 2d 418 (Fla. 2d DCA 1984); Woolf v. Reed, 389 So. 2d 1026 (Fla. 3d DCA 1980). Furthermore, the substitution of an administrator ad li-tem would not affect appellees’ exposure to multiple claims.
Appellees have not shown how they would suffer prejudice by the continuation of the action by the administrator ad litem nor have they shown any meaningful distinction between the authority of an administrator ad litem and a personal representative to act as a nominal plaintiff in a wrongful death action. Since the wrongful death statute provides for a liberal construction and does not prohibit the continuation of the suit in the name of an administrator ad litem, we hold the trial court erred when it dismissed the action for lack of a “personal representative”.
We also reject appellee’s argument that the trial court’s order of dismissal should be affirmed because appellant failed to timely have a personal representative appointed and substituted as plaintiff. On January 9, 1991, the trial' court required appellant to have a personal representative appointed by January 14. The probate division appointed Randolph Potter as successor administrator ad litem on January 10 and appellant filed a motion to substitute Potter for Funchess as plaintiff on January 14.
We have held an administrator ad litem can maintain this action to final judgment. Therefore, if the trial court dismissed this cause for lack of a personal representative, it erred. On the other hand, if it dismissed this cause as a sanction, the trial court relied upon an erroneous premise for its dismissal.
Accordingly, we reverse and remand this cause to the trial court with directions to vacate its judgment in favor of appellees and for further proceedings consistent with this opinion.
REVERSED and REMANDED.
HERSEY and STONE, JJ., concur. . The following summarizes the procedural history leading to the dismissal of appellant’s action:
On January 26, 1989, Dareyl Funchess, nominal appellant, as personal representative of the estate of Samantha Funchess, his deceased wife, filed a wrongful death action against appellees, pursuant to section 768.16, Florida Statutes (1989). The decedent’s mother petitioned for the removal of Dareyl Funchess as personal representative, and on June 19, 1989, the probate division entered an order which removed Dareyl Funchess as personal representative of the estate and appointed John Spellacy as administrator ad litem of the estate. On September 7, 1990, at Spellacy’s request, the probate division entered an order discharging him as administrator ad litem.
On December 5, 1990, appellees moved to dismiss appellant’s wrongful death action based upon the ground that the decedent’s estate was no longer represented by Funchess or any other personal representative. On December 10, appellant moved to substitute Spellacy for Fun-chess as plaintiff. On January 9, 1991, the trial court entered an order on appellees’ motion to dismiss which directed a personal representative shall be appointed by January 14, or the motion is granted and the action is dismissed. The next day, the probate division entered an order which noted its previous discharge of Spellacy as administrator ad litem and appointed Randolph Potter as successor administrator ad litem. On January 14, appellant filed a motion to substitute Potter for Funchess as plaintiff, and on January 29, the trial court entered an order substituting Potter as plaintiff.
On February 6, 1991, appellees moved to vacate the January 29 order claiming appellant obtained the order ex parte. On April 23, 1991, the trial court entered an order which vacated its January 29 order, granted appellees’ motion to dismiss and dismissed appellant’s action.
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David R. MAY Ad Litem of the Estate of Oscar T. Bradley v. Ill. Nat'l Ins. Co., 771 So. 2d 1143 (Fla. 2000)…he representative has a claim adverse to the estate. Florida jurisprudence has recognized that an administrator ad litem may (1) maintain a wrongful death action on behalf of an estate, see Funchess v. Gulf Stream Apartments of Broward County, Inc., 611 So. 2d 43, 45 (Fla. 4th DCA 1992); and (2) function at the same time as a personal representative, with each person being responsible for administering different aspects of an estate. See Woolf v. Reed, 389 So. 2d 1026, 1028 (Fla. 3d DCA 1980) (stating that […
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Cont'l Nat'l Bank v. Brill, 636 So. 2d 782 (Fla. 3d DCA 1994)…for the benefit of the decedent’s survivors and for the estate. § 768.20, Fla.Stat. (1991). The personal representative must bring a single action to recover damages for all beneficiaries. Funchess v. Gulf Stream Apartments of Broward County, Inc., 611 So. 2d 43, 45 (Fla. 4th DCA 1992). Damages are to be awarded to the survivors and to the estate in accordance with the parameters of recovery set by section 768.21. Where the personal representative receives a non-specific settlement offer in a wrongful deat…
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Hess v. Hess, 758 So. 2d 1203 (Fla. 4th DCA 2000)…of requiring the action to be brought by the personal representative is to eliminate the possibility of a multiplicity of suits by competing beneficiaries and avoid a race to judgment. See Funehess v. Gulf Stream Apartments at Broward County, Inc., 611 So. 2d 43, 45 (Fla. 4th DCA 1992). The statute’s designation of the personal representative as the party plaintiff in a wrongful death action does not indicate a legislative intent that the wrongful death act be subsumed by the probate code. Section 768.21 s…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Woolf v. Reed, 389 So. 2d 1026 (Fla. 3d DCA 1980)
- Graham Contracting, Inc. v. Flagler Cnty., 458 So. 2d 418 (Fla. 5th DCA 1984)