Talan v. Murphy, 83-938

• Decision Date: 13 December 1983
• Docket Number: No. 83-938,83-938
• Citation: 443 So.2d 207
• Parties: Wilner TALAN, as Personal Representative of the Estate of Andre Talan, a deceased minor, on behalf of the Estate of Andre Talan, and on behalf of Wilner Talan and Edenne Paul, individually, and as survivors of Andre Talan, deceased, Appellant, v. Robert MURPHY and Allstate Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 207

443 So.2d 207

Wilner TALAN, as Personal Representative of the Estate of Andre Talan, a deceased minor, on behalf of the Estate of Andre Talan, and on behalf of Wilner Talan and Edenne Paul, individually, and as survivors of Andre Talan, deceased, Appellant, v. Robert MURPHY and Allstate Insurance Company, Appellees.

No. 83-938.

District Court of Appeal of Florida,

Third District.

Dec. 13, 1983.

Rehearing Denied Jan. 20, 1984.

Keyfetz, Poses & Halpern and Mark Poses, Miami, for appellant.

Adams, Ward, Hunter, Angones & Adams and Steven Hunter, Miami, for appellees.

Before BARKDULL, NESBITT and JORGENSON, JJ.

NESBITT, Judge.

Within the two-year statute of limitations, Wilner Talan, in his individual capacity, commenced a wrongful death action for the loss of his minor son. After the applicable statute of limitations had expired, Talan procured his appointment as personal representative and, in this capacity, filed an amended complaint on behalf of his son's estate and on behalf of himself and his wife, individually, and as survivors of their son. The amended complaint added damages for the child's mother, the loss of the child's net accumulations, and medical, burial, and funeral expenses. The trial court entered a final summary judgment in favor of the defendants on the basis that the amended complaint was barred by the statute of limitations because it was not filed by the personal representative within two years of the child's death. Finding that the alterations to the complaint relate back to the original filing, we reverse.

As to the change in capacity, our supreme court has specifically addressed this issue in Griffin v. Workman, 73 So.2d 844, 846 (Fla.1954):

We think, therefore, that the issue is ruled by the ancient doctrine "that whenever letters of administration or testamentary are granted they relate back to the intestate's or testator's death. * * * The doctrine has been accepted with virtual unanimity, since it was promulgated, in a long line of cases." Annotation 26 A.L.R. 1360. Under this doctrine "all previous acts of the representative which were beneficial in their nature to the estate and * * * which are in their nature such that he could have performed, had he been duly qualified, as personal representative at the time, are validated."

The personal representative was the only person authorized to bring the wrongful death action. § 768.20, Fla.Stat. (1981). When Talan assumed the responsibility of bringing the action without having the appointment, he did so as an executor de son tort. Johnston v. Thomas, 93 Fla. 67, 111 So. 541 (1927). When he was later appointed executor, his letter related back to the death of the intestate and his acts as executor de son tort were thereby validated insofar as they were acts he could have performed had he been duly qualified as a personal representative. Griffin; 31 Am.Jur.2d Executors and Administrators § 679 (1967); see also Bermudez v. Florida Power & Light Co., 433 So.2d 565 (Fla. 3d DCA 1983) (letters of administration related back to action filed in name of personal representative before letters were issued). Nor was it necessary that Talan allege that he was the personal representative of the decedent's estate in his original complaint. Fla.R.Civ.P. 1.120(a). If the defendant desired to place that matter in issue, he should have done so by specific negative averment. Fla.R.Civ.P. 1.120(a). Consequently, summary judgment was improperly granted on that basis.

Nonetheless, the appellee contends that the amended complaint, by the inclusion of new elements of damages, substantially changed the cause of action and should be barred. Again, we disagree. The statutory mechanism for bringing a wrongful death action, section 768.16, et seq., requires that the single cause of action for wrongful death be brought by the personal representative claiming each survivor's damages as well as the expenses incurred by the estate.

It follows, from the fact that the plaintiff can...