Continental Nat. Bank v. Brill, 93-1323
| Decision Date | 19 April 1994 |
| Docket Number | No. 93-1323,93-1323 |
| Citation | 636 So.2d 782 |
| Parties | 19 Fla. L. Weekly D863 CONTINENTAL NATIONAL BANK, Appellant, v. Sara BRILL, Appellee. |
| Court | Florida District Court of Appeals |
Bill Ullman, Miami, for appellant.
Grossman and Roth, and Claudia B. Greenberg, Miami, for appellee.
Before SCHWARTZ, C.J., and HUBBART and GERSTEN, JJ.
Appellant, Continental National Bank, appeals an order denying the appointment of an administrator ad litem. We reverse.
This case presents an issue not before addressed in Florida. This case also stands as a tribute to the lawyer's role in the dynamics of the creation of law.
As in the story of Pygmalion and Galatea, where an artist gave life to an inanimate sculpture, appellant has given life to an inanimate argument. Appellant has crafted from base material--theory and concepts of equity--a new procedural and substantive guideline.
The essential facts are as follows: In 1989, Continental National Bank (the bank) obtained a judgment in excess of $40,000 against the deceased, Luis Brill. Upon Mr. Brill's death in 1991, the bank filed a statement of claim in probate court for the remaining amount of the judgment.
The probate court appointed the surviving spouse, appellee Sara Brill, as personal representative. She brought a wrongful death action based on medical malpractice in her capacities as personal representative, wife and widow, and mother of the minor children of Luis Brill. Receiving a non-specific settlement offer in the amount of $675,000, she moved for approval and allocation of the net settlement proceeds.
The trial court approved the settlement amount, paid attorney's fees and costs, and allocated $10,000 to the estate and the balance to Sara Brill. These proceeds constitute the only assets of the estate. After the court entered its order, the bank, joined by other creditors, sought removal of the personal representative or appointment of an administrator ad litem.
The bank asserts that the allocation of this settlement primarily to Sara Brill conflicts with her duty as personal representative to maximize allocation to the estate. Sara Brill contends that her interest as a survivor entitled to wrongful death proceeds is not an interest against the estate and, therefore, does not pose a conflict of interest for her as personal representative.
Florida Probate Rule 5.120(a) authorizes appointment of an administrator ad litem to represent the estate in a particular probate proceeding whenever the personal representative "is or may be interested adversely to the estate" or "the necessity arises otherwise." An administrator ad litem may be appointed where the adverse interest of the personal representative does not interfere with the administration of the estate as a whole and therefore does not warrant the representative's removal. Sec. 733.504(9), Fla.Stat. (1991); Kolb v. Levy, 104 So.2d 874, 878-79 (Fla. 3d DCA), cert. denied, 108 So.2d 48 (Fla.1958). The appointee becomes solely responsible for the performance of specific duties authorized by the court, supplanting in that regard the authority of the personal representative, who continues to perform all other responsibilities involving the administration of the estate. Woolf v. Reed, 389 So.2d 1026, 1028 (Fla. 3d DCA 1980).
Under the Wrongful Death Act, the...
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