Creditor claims against an estate must be paid to the extent allowed by the resources of each estate. But what happens when a creditor’s claim arises from the malfeasance of the personal representative? F.S. 733.609(1) tells us a personal representative of an estate is liable only for the damage or loss resulting from his or her breach of fiduciary duty. The award is therefore meant to compensate for actual harm and not serve as a punitive award against the fiduciary. This sets the standard for an award of damages and effectively requires a determination of the causation of the damages awarded: If the loss was caused by the fiduciary’s misconduct, what would the creditor have been able to recover against the estate had the misconduct not occurred?
Case Study
Brush v. Coppelli, — So.3d —-, 2025 WL 495393 (Fla. 5th DCA February 14, 2025)
Appellee, Kelly DiMaria Coppelli, a creditor of the Estate of Frederick Swoyer was awarded $34,834.75, plus post-judgment interest thereupon, for damages caused by a breach of fiduciary duty on the part of Kimberly Swoyer Brush, the personal representative of the estate. The lower court held that Brush was individually liable to Coppelli for the full amount of the judgment, post-judgment interest, and an additional surcharge of $12,644.79, even though the estate had never even had $34,834.75 in assets. Brush appealed the award. The Fifth DCA upheld most of the lower court’s decision but overturned the ruling on a key issue—the extent to which the personal representative is personally liable to cover the damages awarded.
In this instance, the court held that although the personal representative had breached fiduciary duty by misallocating estate funds, but for this breach Coppelli’s would not have been able to recover the full amount of the judgment from the estate.
By awarding Coppelli that full amount against Brush personally, the court put her in a better position than she would have occupied without the breach of fiduciary duty. This was error because a personal representative’s liability to interested persons for breach of fiduciary duty is limited to the “damage or loss resulting from the breach.” § 733.609(1), Fla. Stat. (2003); see, e.g., Kinchla v. Ran Invs., LLC, 397 So.3d 1064 (Fla. 6th DCA 2024) (holding—in a case where the breach cost the plaintiff $173,927.81 in one transaction but yielded $150,000 in another—that the plaintiff should receive $23,927.81 because that amount put the plaintiff “in the position as if [defendant] had not breached its fiduciary duty”). On remand, the court shall award Coppelli only the amount that she would have recovered from the estate if Brush had not breached her fiduciary duty. See §§ 733.609(1), 733.707, Fla. Stat.
In effect, the ruling limits personal liability and clarifies that the personal representative is not required to “insure” the estate’s debts by becoming personally liable for whatever damages cannot be covered by the estate’s available assets. In this case, since the estate never had enough assets to cover the full judgment, requiring the personal representative to personally cover the balance owed would result in the creditor collecting more than she would have been able to had the breach not occurred. The5th DCA upheld the estate’s liability but required that on remand the lower court should only award an amount reflecting what the creditor would have received absent the breach.