Opening safe-deposit boxes is a part of most probate administrations. Banks are usually sticklers for protocol, which is understandable given their liability exposure if anything goes wrong. Fortunately, Florida has a detailed statutory scheme governing access by fiduciaries to safety deposit boxes (see F.S. 655.93 – F.S. 655.94 and F.S. 733.6065).
Wachovia is learning the hard way that people will sue if things go wrong, as reported by Daniel Wise in Bank’s Opening of Box Leads to Trial on Missing Cash Claim. Here’s an excerpt:
An elderly woman’s claim that Wachovia Bank was liable for $75,000 allegedly lost when it authorized unsupervised locksmiths to break into her safety deposit box should proceed to trial, an acting Supreme Court justice in Manhattan has ruled.
The bank’s failure to check one of its computer databases to see if the box had been rented raises a triable issue of fact as to whether the bank committed "gross negligence," Justice Michael Stallman ruled last week in Glassman v. Wachovia Bank, 115380/06.
In early 2005, Roberta Glassman, who has residences in Manhattan and Florida, rented a self-service safe deposit box at the Wachovia branch in West Palm Beach, Fla. Under the agreement, she was to be given the only keys.
The agreement also provided that any missing contents were Glassman’s responsibility and that "the Bank has no liability whatsoever unless the loss is caused by the Bank’s gross negligence, fraud or bad faith."
Glassman, 74, claimed that when she left in May 2005 for a trip to Europe, she removed $3,000 in cash from the safety deposit box, leaving $87,000 in $100 bills and a $100,000 Suffolk County bond.
However, an envelope bearing the box number and containing keys was mistakenly included in the bank’s inventory of unrented boxes. The keys did not open her box.
On May 27, 2005, a short time after Glassman left on her trip, the bank called in locksmiths from Diebold Incorporated.
The bank’s lawyer, Jocelyn Keynes, said it was the bank’s policy not to supervise the work of locksmiths on unrented boxes. In this case, the locksmiths soon realized the box had been rented because it did not have a piece of white Styrofoam normally found between the door of unused boxes and the actual container for valuables.
The locksmiths, according to the lawyer’s affidavit, then summoned two bank employees, who inventoried the contents of the box as $12,000 in $100 bills and the $100,000 bond.
Both sides sought summary judgment upon Glassman’s claim. Wachovia claimed it had acted reasonably, and had certainly not been grossly negligent.
Stallman found that the agreement’s gross-negligence provision was sustainable under both New York and Florida law.
Although the case referred to in the quoted piece [Glassman v. Wachovia Bank, 115380/06] is out of New York, fortunately for us in sunny Florida the court skirted the choice of law issues by simply applying both New York and Florida law. Florida practitioners should find the following useful:
- Exculpatory clauses in safe-deposit box agreements are enforceable.
[I]n Florida . . . an appellate court has held that the limitation of liability provided in a safe deposit box agreement which limited the bank’s obligations for loss to instances of gross negligence, fraud or bad faith was . . . [enforceable]. F.D.I.C. v. Carre, 436 So.2d 227, 229-230 (Fla App 2d Dist 1993)(court noted that whether or not “a customer is wise to enter into an agreement such as the one in this case, we cannot find that the agreement was against public policy.”). Thus, under the laws of New York and Florida, an exculpatory clause, such as the provision contained in the subject Agreement that limits a party’s liability to grossly negligent conduct, is enforceable.
- If a gross-negligence exculpatory clause is enforceable, then what is "gross negligence"?
The Florida courts have acknowledged that their jurisprudence “reflects a history of difficulty in dividing negligence into degrees” and that “it is doubtful that gross negligence has precisely the same meaning in each context.” See Fleetwood Homes of Florida, Inc. v. Reeves, 833 So.2d 857, 865-66 (Fla App 2d Dist 2002); see also LeMay v. Kondrk, 860 So.2d 1022, 1025 (Fla App 5th Dist 2003) (“Courts have encountered great difficulty in attempting to draw clear and distinct lines between the various grades of negligence). In Fleetwood Homes, the court observed that, in the context of addressing workers’ compensation and in awarding punitive damages based on gross negligence, the relevant statute defines gross negligence to include “conduct [that] was so reckless or wanting in care that it constituted a conscious disregard or indifference to the . . . rights of person exposed to such conduct.” Id. at 867.[FN3]
[FN3]. The same definition for gross negligence was noted in In re Standard Jury Instructions-Civil Cases, (797 So.2d 1199  ), where the Florida Supreme Court authorized the publication of guidelines for jury instructions and model verdict forms with respect to the award of punitive damages in instances that involve intentional misconduct or grossly negligent conduct.