The Duffey Law Firm Blog

Wednesday, October 11, 2017

Can an estate be liable for damages if a person gets into an accident while driving the decedent’s car prior to the appointment of a personal representative?

In the case of Depriest v. Greeson, 213 So.3d 1022 (1st DCA February 21, 2017), the decedent’s daughter caused an accident using the decedent’s car after the death of the decedent and prior to the appointment of her step-brother as personal representative. The First District Court of appeals held that prior to the appointment of a personal representative, the law does not impose a duty upon the nominated personal representative to act or prevent harm to the estate. However, it is important to keep in mind that the Depriest holding is based upon a unique set of facts. A different timeline could have led to a very different result. 

In Depriest v. Greeson, 213 So.3d 1022 (1st DCA February 21, 2017), the decedent’s car was owned solely by the decedent and was not bequeathed to any beneficiary under the decedent’s will. The decedent’s daughter and step-son were equal beneficiaries under the residuary clause of the will, and therefore neither the daughter nor the step-son had any specific right to the car. As such, the car became an asset of the decedent’s estate subject to administration, and its ownership could not be determined until resolution of claims, taxes, debts, and expenses of administration.

While the decedent was alive, his car and keys were kept at his daughter’s home, and his daughter occasionally used the decedent’s car with his permission. About a month after the decedent’s death and four days prior to the step-son filing the open the estate, the decedent’s daughter caused an accident and injured the plaintiff, Samuel Depriest, while driving the decedent’s car. Depriest, relying on Florida’s common law “dangerous instrumentality doctrine” sued the decedent’s estate alleging that the estate was vicariously liable for the damages. Depriest alleged that the personal representative had impliedly consented to the daughter’s use of the car by failing to take affirmative action to prevent her from using it. Discovery revealed that while the step-son had taken the title to his attorney after the decedent’s death, he did not make any effort to take possession of the car or the keys.  

On appeal, the First District Court of Appeals held that the decedent’s step-son as nominated but not yet appointed personal representative had no legal duty to prevent the decedent’s daughter from using the car. Only upon appointment by the court, the step-son would have the duty to control and protect the decedent’s assets. The court cited to the “relation back” doctrine codified in Fla. Stat. 733.601, which states that acts “occurring before appointment and beneficial to the estate” have the same effect as those acts taken after appointment. However, as shown in Richard v. Richard, 193 So.3d 964 (Fla. 3d DCA 2016), this authority to act prior to appointment does not impose a duty upon the nominated personal representative. Ultimately, the First District Court of Appeals held that the motorist could not show that there was implied consent for the decedent’s daughter to drive the car, which was essential to prove vicarious liability under the dangerous instrumentality doctrine.

The Takeaway?

This case reaffirms that a personal representative does not have a duty or obligation to take control of a decedent’s assets prior to appointment by the court. However, the personal representative was very lucky based on the timeline in this case. Had the personal representative been appointed at the time of the accident, he would have had a duty to take control of the decedent’s car and prevent anyone from using it. If such preventative steps are not taken, implied consent more than likely could be found and the estate could be liable for damages.

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