Funchess v. Gulf Stream Apartments of Broward County, Inc., 91-1716

• Decision Date: 23 December 1992
• Docket Number: No. 91-1716,91-1716
• Citation: 611 So.2d 43
• Parties: 18 Fla. L. Week. D92 Dareyl FUNCHESS, as personal representative of the estate of Samantha McHellon Funchess, deceased, on behalf of the estate and on behalf of the survivors of the decedent, to wit: Dareyl Funchess, surviving spouse; Lajuan Jamar Funchess, a minor; Samuel McHellon, a minor, Helen White and Donial McHellon, natural parents, Appellant, v. GULF STREAM APARTMENTS OF BROWARD COUNTY, INC., John V. Tinglof, Robert R. Tinglof and Iver A. Tinglof, Appellees.
• Court: Florida District Court of Appeals

Page 43

611 So.2d 43

18 Fla. L. Week. D92

Dareyl FUNCHESS, as personal representative of the estate of Samantha McHellon Funchess, deceased, on behalf of the estate and on behalf of the survivors of the decedent, to wit: Dareyl Funchess, surviving spouse; Lajuan Jamar Funchess, a minor; Samuel McHellon, a minor, Helen White and Donial McHellon, natural parents, Appellant, v. GULF STREAM APARTMENTS OF BROWARD COUNTY, INC., John V Tinglof, Robert R. Tinglof and Iver A. Tinglof Appellees.

No. 91-1716.

District Court of Appeal of Florida Fourth District.

Dec. 23, 1992.

Rehearing and Rehearing En Banc Denied Jan. 25, 1993.

Edward A. Perse of Perse, P.A. & Ginsberg, P.A., and Ratiner & Glinn, P.A., Miami, for appellant.

Richard T. Woulfe and Peter R. Goldman of Bunnell, Woulfe & Keller, P.A., Fort Lauderdale, for appellees.

DELL, Judge.

Appellant contends the trial court erred when it dismissed this action for the wrongful death of Samantha Funchess and entered judgment for appellees. ¹ We agree and reverse and remand this cause for further proceedings.

The trial court's order neither contains findings nor states reasons for its dismissal of appellant's action. Appellant contends the trial court erred if it dismissed this action based upon the inability of an administrator ad litem to maintain a wrongful death action originally brought in the name of a personal representative. In the alternative, appellant contends the trial court abused its discretion if it dismissed this suit based upon appellant's failure to timely obtain the appointment of a personal representative.

Appellant initially filed this wrongful death action in the name of a personal representative properly appointed by the probate division. The probate division thereafter removed the personal representative at the request of the decedent's mother and appointed John Spellacy as administrator ad litem of the estate. Appellees did not move to dismiss when the court appointed Spellacy as administrator ad litem. Only after Spellacy resigned and appellant failed to have a successor administrator ad litem appointed did appellees move to dismiss for lack of a personal representative.

Appellant argues an administrator ad litem may properly maintain a wrongful death action because the term "personal representative" encompasses the term "administrator ad litem". The wrongful death statute, section 768.18, Florida Statutes (1989), does not define the term "personal representative". However, section 731.201(25) provides:

"Personal representative" means the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor.

Section 733.308 provides the circumstances where a court must appoint an administrator ad litem:

When it is necessary that an estate be represented and there is no personal representative of the estate, the court shall appoint an administrator ad litem without bond for that particular proceeding.

Rule 5.120(a), Florida Rules of Probate and Guardianship, permits the appointment of an administrator ad litem in the following circumstances:

When it is necessary that the estate of a decedent ... be represented in any probate ... proceeding and there is no personal representative of the estate ..., or the personal representative ... is or may be interested adversely to the estate ..., or is enforcing his own debt or claim against the estate ..., or the necessity arises otherwise, the court may appoint an administrator ad litem ... without bond or notice for that particular proceeding.

(emphasis added).

Appellant points out section 768.17, Florida Statutes (1989), provides the wrongful death statute "shall be liberally construed." Section 768.20 states in part:

The action shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death.

The statute, therefore, requires a single action brought by a personal representative to recover damages for all beneficiaries under the act. By requiring the personal representative to bring a single action, the statute eliminates the potential for competing beneficiaries to race to judgment, preferential treatment of one or more beneficiaries in the disposition of their claims and, most significantly, multiple claims and lawsuits against the wrongdoer.

An administrator ad litem must represent the beneficiaries of the estate with the same degree of neutrality and fidelity as a personal representative and an administrator ad litem is always subject to the supervision of the appointing court. The proceeds of any judgment recovered in the wrongful death action by an administrator ad litem would be protected and distributed as provided by the ...