Kemp's Estate, In re, G-132

• Decision Date: 05 August 1965
• Docket Number: No. G-132,G-132
• Parties: In re ESTATE of Charles Colley KEMP, Deceased.
• Court: Florida District Court of Appeals

Page 757

177 So.2d 757

In re ESTATE of Charles Colley KEMP, Deceased.

No. G-132.

District Court of Appeal of Florida, First District.

Aug. 5, 1965.

Rehearing Denied Aug. 5, 1965.

Boggs, Blalock & Holbrook, Jacksonville, for appellant.

Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee.

STURGIS, Judge.

The appellant is administrator of the estate of A. J. Herring, deceased, pending administration in the state of Georgia. He seeks reversal of an order of the County Judge's Court of Duval County, Florida, denying his petition for an extension of time in which to file suit against the estate of Charles Colley Kemp, deceased, pursuant to a $50,000 claim filed therein March 11, 1964, on behalf of the Herring estate for the alleged wrongful death of said A. J. Herring as the result of an automobile accident that occurred in Clay County, Florida. On March 20, 1964, the administratrix of the Kemp estate filed a formal objection to said claim and served copies thereof by registered mail upon the appellant and upon an attorney at law, both residents of Brunswick, Georgia, which attorney lodged the claim in the County Judge's Court of Duval County in his relation as attorney in fact and at law for the Herring estate.

The Herring estate did not bring suit or take any further action with respect to its said claim against the Kemp estate until August 3, 1964, which was more than four months after said objection to the claim was filed. On that date appellant filed in the Kemp estate a petition for an extention of time in which to file suit upon said claim, and two days later the administratrix of the Kemp estate filed objections to said petition. On October 29, 1964, the court heard the petition and on November 4, 1964, denied same, hence this appeal.

It is established in this jurisdiction that even after the expiration of the time provided by Section 733.18(2), Florida Statutes, F.S.A., for filing suit on such claim, the County Judge's Court may, upon a showing of good cause, extend the time for filing such suit. The sole point of law involved on this appeal is whether the lower court, in the light of the facts and circumstances of this case, abused its judicial discretion in denying appellant's said petition.

Section 733.18(2), Florida Statutes, F.S.A., limiting the creditor or claimant against an estate to two calendar months from the date of service by registered mail or personal service of objection to the claim in which to bring appropriate suit, action or proceeding thereon, is not a statute of non-claim as is Section 733.16, Florida Statutes, F.S.A. It is defined, instead, as a statute wherein 'the stated time limits operate as rules of judicial procedure.' In re Jeffries' Estate, 136 Fla. 410, 181 So. 833, 838 (1938).

The petition for extension of time herein alleged that shortly after the death of A. J. Herring the attorney representing his estate entered into negotiations with a firm of insurance adjusters in Brunswick, Georgia, representing the insurance company which carried liability insurance on Charles Colley Kemp, the Florida decedent, and conducted same both before and after the subject claim was filed in the Kemp estate; that the appellant administrator of the Herring estate did not intend to make any claim against the asets of the Kemp estate, the inference being that he intended to press the claim only to the extent of the coverage afforded by the liability insurance. We pause to note that such was not the import of the claim filed and that we are unacquainted with any power of a personal representative of a decedent's estate to thus limit the estate's rights. Appellant does not indicate how such intention was to be made effective and cites no authority for the proposition that such benevolent intention has the legal effect of preserving his claim as against the insurer while protecting the Kemp estate against liability beyond the policy limits.

The petitioning administrator also alleged that the Kemp insurance carrier offered $19,500 in settlement of the Herring estate claim, that the personal representative of the Kemp estate had filed in the Herring estate a claim for the alleged wrongful death of said Charles Colley Kemp, which claim was pending, and that petitioner was lulled into a false sense of security by the negotiations he conducted with the liability insurance carrier in the Kemp estate looking toward settlement of the claim; further, that the filing of the Kemp claim in the Herring estate 'confused the order of the claims' to the point that petitioner did not file suit against the Kemp estate within the statutory period of two months following the objections filed to his claim in the Kemp estate; and that he had been informed through his attroney that the insurance company was trying to work up an offer to submit in settlement of the claim against the Kemp estate.

At the hearing on said petition appellant presented as a witness Jack J. Lissner, Jr., Esq., of Brunswick, Georgia, the attorney who represented the Herring estate, and the appellee presented as its sole witness Charles J. Becton, the insurance adjuster's employee who had some contact with said attorney looking toward settlement.

Mr. Lissner testified that in February 1964, prior to filing the claim, he had negotiations with Mr. Charles J. Becton of the adjusting firm culminating in an offer to settle the claim for $19,500, which offer was submitted to the appellant administrator of the Herring estate who took the same under advisement, and that after some time had expired the offer was withdrawn; that said attorney later came to Jacksonville and there consulted with counsel who prepared the subject claim, which he filed in the Kemp estate on March 11, 1964; that upon returning to Brunswick he wrote Mr. Becton that the claim had been filed and that he would like to reopen negotiations for settlement thereof. Mr. Lissner acknowledged receipt of the objection filed to the claim, accompanied by a cover letter from a representative of the estate. Mr. Lissner also testified that on some occasion after March 17, 1964, he discussed the claim with Mr. Becton and placed in Becton's hands copies of decedent Herring's tax returns for the last two years of his life, and that several weeks later he had a discussion with Becton concerning the amount of earnings which he (Lissner) was asserting on behalf of decedent Herring, at which time he asked Mr. Becton 'for a figure.' In that connection, however, witness Lissner said: 'No definite mention of figure was ever mentioned. We were negotiating toward a settlement. That was the purpose of all of that, and some time elapsed.' He also testified that on March 20, 1964 (which was subsequent to receiving the objection to the claim), the administratrix of the Kemp estate informed him that she would ask the insurence company to settle the claim so that the Kemp estate might be released from any further liability to the Herring estate; that on July 29, 1964, she directed him to the office of the insurance company where he called and talked with its manager, who informed him for the first time that 'a statute had run and the file had been closed an there would be no further negotiations.' Upon being asked whether he received any correspondence from any representative of the Kemp estate subsequent to March 20, 1964, or from Mr. Becton after that date, Mr. Lissner answered, 'No sir; none at all, none at all.' On cross-examination the witness testified that the last correspondence he had with Mr. Becton was on May 10, 1964, and that no figure for settlement other than $19,500, which was withdrawn, was ever quoted to him.

Mr. Becton, the insurance adjuster, testified that he negotiated with Mr. Lissner concerning settlement of the claim in question and that a $19,500 offer of settlement was made for a complete and final release of all claims, including a claim of one Ed Lyles (a third person who is not a party to these proceedings) whose claim was eventually barred because not filed against the Kemp estate within the time required by the non-claim statute, but that said offer was withdrawn before acceptance.

The facts in In re Goldman's Estate, 79 So.2d 846 (Fla.1955), are substantially in accord with those int he case on review, except that there were no negotiations for settlement. In Goldman there was a claim for $34,620 damages said to accrue to the claimant as the result of the negligent operation of a motor vehicle by decedent Goldman in her lifetime. Decedent's administrator filed objections to the claim and on November 28, 1953, served a copy thereof by registered mail on the claimant. Nothing further transpired until August 30, 1954, when the administrator moved the County Judge's Court to deny the claim on the ground that claimant had not brought suit thereon within the time allowed by the statute. Claimant then filed a petition praying to be allowed an extension of time in which to bring such suit and as grounds therefor asserted that claimant's attorneys had not received a copy of the 1953 General Laws of Florida, containing an amendment to Section 733.18, Florida Statutes, F.S.A., whereby the time for filing such suit had been shortened, and were of the impression that claimant had twelve months in which to file such suit; further, that the claimant had to undergo an additional operation which had recently been performed, and that if her attorneys had known she was limited to a period of two months from service of such objection to the claim, they would have filed a timely petition for an extension of time in which to file suit in order to be certain of the amount of damages incurred by the claimant. The county judge entered an order holding that the claimant had shown good cause for extending the time and allowing thirty days from the date of the order in which to file suit on the claim. On appeal to the circuit court the ruling was affirmed and on appeal to ...