Listen to this post

F.S. 46.021 tells us that “[n]o cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended [against the decedent’s estate].” However, how you go about prosecuting a case — and the length of time you have to file your lawsuit — changes dramatically after someone dies.

Before someone dies you usually only have to sue them in one courtroom and worry about one set of statute-of-limitations periods. After they’ve died you’ll now have to sue them in at least two separate court proceedings and worry about two distinct sets of statute-of-limitations periods: (a) whatever limitations period applies to your civil case under F.S. Ch. 95, and (b) the second set of ultra-short limitations periods applicable in probate proceedings under F.S. 733.702 and F.S. 733.710. Litigants who forget this dual-track gauntlet for cases involving deceased defendants do so at their peril.

Florida’s layered approach for probate limitations periods, and the dangers of the “unknown unknown”

You might ask yourself why we need two different limitations periods for probate proceedings. Answer: sections 733.702 and 733.710 serve two very different functions.

733.702 is a typical statute of limitations that gets triggered after a probate proceeding is actually commenced, and under 733.702(3) it can be extended “upon grounds of fraud, estoppel, or insufficient notice of the claims period.” Key point: no probate proceeding = no application of 733.702.

733.710 establishes a maximum two year filing deadline following a decedent’s death for all unsecured claims (e.g., all tort claims), regardless of whether or not a probate proceeding’s ever commenced, and it isn’t subject to extension on any of the equitable grounds applying to 733.702. Key point: no probate proceeding = 2-year filing deadline. (In fact, one very effective defensive maneuver is to simply wait two years before opening the probate proceeding, thereby automatically barring all unsecured creditor claims).

This kind of absolute filing deadline’s referred to as a “statute of repose” or “non-claim statute”. Because 733.710 applies even if there’s no probate proceeding (and thus no notice), it’s a classic example of the kind of “unknown unknown” that keeps litigators up at night. No matter how meritorious and just your cause might be, this non-claim statute could get your case tossed out of court. And because this limitations period’s buried deep in our probate code, your average civil litigator could be forgiven for never even knowing it exists. Yup, that’s a big unknown unknown.

Are casualty insurance claims exempt from 733.702? YES

Consider this common scenario: you’re driving a delivery truck and you harm someone in an accident because of your negligence. Usually, your casualty insurance policy will step in to compensate the person injured by your negligence. In other words, this insurance money goes to the victim, not the negligent driver or the negligent driver’s estate.

If an injured victim is suing the estate of the deceased negligent driver only to trigger his casualty insurance coverage, that lawsuit shouldn’t have an impact on the estate because you’re not going after any assets of the estate (the insurance money’s going to the victim not the estate). Against this backdrop 733.702(4)(b) tells us plaintiffs aren’t subject to the statute of limitations for probate claims if you’re only suing the decedent’s estate “to establish liability that is protected by the [decedent’s] casualty insurance,” and if your claim is limited exclusively to “the limits of [the decedent’s] casualty insurance protection only.”

Florida supreme court decides split among appellate courts

The question then becomes, are these same casualty insurance claims also exempt from 733.710, our two-year non-claim statute? There are all sorts of good reasons for why the answer to that question might be yes. And our appellate courts have split on the issue, some extending the exemption for casualty-insurance claims to 733.710, others not. Florida’s supreme court has now stepped in to resolve that split, ruling that casualty insurance claims are not exempt from 733.710. If you’re a probate attorney, this is a big deal.

Case Study

Tsuji v. Fleet, — So.3d —-, 2023 WL 4246120 (Fla. June 29, 2023)

This case involved a truck driver who injured two people in a car accident while he was on the job. The driver died a few weeks after the accident for reasons unrelated to the accident. According to the supreme court, more than three years later the victims sued the driver “for negligently operating the car,” and sued his employer “for vicarious liability under the doctrines of respondeat superior and dangerous instrumentality.” When the plaintiffs found out the driver had died they substituted in the driver’s estate and “reduced their request for damages against the estate to the limits of [the decedent’s] casualty insurance coverage.”

Are casualty insurance claims exempt from 733.710? NO

Again, there are all sorts of good reasons for why we have a line of appellate authority exempting these claims from our two-year non-claim statute. On the other hand, the statute itself is clear. F.S. 733.702(5) tells us: “Nothing in [section 733.702] shall extend the limitations period set forth in s. 733.710.” And does anything in 733.710 exempt these claims? Nope, so saith the Florida supreme court:

There are only two exceptions to this statute of repose or nonclaim. Subsection (2) provides that section 733.710(1) “shall not apply to a creditor who has filed a claim pursuant to s. 733.702 within 2 years after the person’s death, and whose claim has not been paid or otherwise disposed of pursuant to s. 733.705.” § 733.710(2), Fla. Stat. And subsection (3) provides that section 733.710(1) “shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien.” § 733.710(3), Fla. Stat. Neither of these exceptions addresses casualty insurance.

When no exception applies, an untimely claim is “automatically barred.” Barnett Bank of Palm Beach Cnty. v. Estate of Read, 493 So. 2d 447, 448 (Fla. 1986). Section 733.710(1) is in that sense “a self-executing, absolute immunity to claims filed for the first time … more than 2 years after the death of the person whose estate is undergoing probate.” May, 771 So. 2d at 1156 (quoting Comerica, 673 So. 2d at 167).

If you’re a plaintiff and your plan is to sue an estate for one reason only — to trigger casualty insurance coverage — you’ll want to file your lawsuit before the more forgiving deadline under 733.702 is triggered. But if you blow that deadline, 733.702(4)(b) says you might get a pass under certain circumstances. But 733.710 tells us that pass only lasts for two years after the decedent’s death. Once that date rolls around you need to have filed your lawsuit (even if that means you open the probate proceeding just so you can sue the estate) or it’s game over — so saith the Florida supreme court.

Does this change really matter? Maybe not

Thank you to Naples probate attorney extraordinaire Laird Lile who pointed out to me that the court’s decision in Tsuji may not have the impact it once would have. Why? Because effective March 24, 2023, the statutory limitations period for all general negligence claims is cut in half from four years to two years under F.S. 95.11(4), which tracks the two-year statute of repose for probate claims under F.S. 733.710.

The negligence claim filed in Tsuji would have been subject to the new two-year limitations period if it had accrued after March 24, 2023, mooting the question of whether the two-year statute of repose for probate claims under F.S. 733.710 also applied. If your case is time barred under either statute, it doesn’t matter.

Here’s an excerpt from a Jimerson Birr blog post reporting on the new shorter limitations period for negligence claims:

For decades prior to the recent tort reform, the statute of limitations on negligence causes of action in Florida had been four years from when the cause of action accrued.  However, effective March 24, 2023, Fla. Stat. § 95.11, was amended to reduce the statute of limitations for negligence claims from four years down to only two years.  Fla. Stat. § 95.11(4)(a) (2023).  This generally means that a plaintiff that fails to file a lawsuit for negligence within two years of when the cause of action accrues, rather than four years, will be barred from bringing the suit under the new statute of limitations.

What Claims Does This Change Effect?

The change of the statute of limitations from four years to two years applies to general negligence claims.  General negligence claims encompass the vast majority of personal injury claims due to negligence, including by automobile accidents, slip and fall, etc., and also includes negligence claims for property damage.

However, the new shorter statute of limitations only applies to negligence claims which accrue after the effective date of the new statute, which is March 24, 2023. See H.B. 837 (“The amendments made by this act to s. 95.11, Florida Statutes, apply to causes of action accruing after the effective date of this act.”). “A cause of action accrues when the last element constituting the cause of action occurs.” Fla. Stat. § 95.031(1). A negligence cause of action generally accrues when the plaintiff is injured or suffers damages due to the act or omission of the defendant. See Dep’t of Transp. v. Soldovere, 519 So.2d 616 (Fla. 1988) (“A cause of action for the negligence of another accrues at the time the injury is first inflicted.”).

Accordingly, the new shorter two-year statute of limitations should be applicable to all general negligence claims where the plaintiff first suffered the injury or damages due to the defendant’s negligent conduct after March 24, 2023. Negligence causes of action accruing prior to March 24, 2023, should be under the prior law’s four-year statute of limitations for negligence claims.