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Florida First DCA rules that motor vehicle negligence lawsuit filed against employer of alleged at-fault driver more than two years after the death of the driver was time-barred

On August 4, 2021, in Tsuji, et al., v. Fleet, et al., No. 1D20-901, the Florida First DCA affirmed a trial court’s summary judgment in favor of the defendants in a motor vehicle negligence casein which the plaintiffs sued both the estate of the alleged at-fault driver and the driver’s employer (on vicarious liability grounds). The trial court concluded that the lawsuit was time barred because it was filed more than two years after the death of the alleged at-fault driver, beyond the statutory deadline for the filing of creditor’s claims in Florida Probate Code §§ 733.702(5) and 733.710(1), Florida Statutes (2013). The plaintiff (the personal representative of the decedent’s estate) cited the Fourth DCA’s decision in Pezzi v. Brown, 697 So. 2d 883 (Fla. 4th DCA 1997), allowing a plaintiff to bring a cause of action against a tortfeasor’s estate more than two years after the tortfeasor’s death when the plaintiff sought to recover damages only from the tortfeasor’s casualty insurance company. The First DCA noted that in May v. Illinois Nat’l Ins. Co., 771 So. 2d 1143, 1157 (Fla. 2000), the Florida Supreme Court approvingly cited Pezzi, but held that this was dicta which was not controlling in this case. The First DCA concluded that the § 733.710 not only barred any action against the decedent’s estate, but also in effect barred any action against the liability insurer, because under Florida’s non-joinder statute, section 627.4136(1), Florida Statutes, a plaintiff may not file a “direct action” against a liability insurer without first obtaining a settlement or a verdict against the insured. The First DCA additionally concluded that the statute of limitations effectively barred any claim against the alleged at-fault driver’s employer because the plaintiffscould not hold the employer liable under a theory of vicarious liability until the employee was found to be liable. The Court cited Buettner v. Cellular One, Inc., 700 So. 2d 48 (Fla. 1st DCA 1997), a per curiam decision, similarly involving a plaintiff’s lawsuit against a deceased’s at-fault driver’s employer which was barred because it was filed more than two years after an at-fault driver’s death. In Buettner, the First DCA quoted from Bankers Multiple Line Ins. Co. v. Farish, 464 So. 2d 530, 532 (Fla. 1985) for the proposition that "when a principal's liability rests solely on the doctrine of respondeat superior, a principal cannot be held liable if the agent is exonerated." The Buettner court noted that the trial court had entered summary judgment for the at-fault driver’s estate on statute of limitations grounds, and cited Allie v. Ionata, 503 So. 2d 1237, 1242 (Fla. 1987), holding that "dismissals based on limitation statutes are adjudications on the merits for res judicata purposes,” and Citibank N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1503 (11th Cir. 1990), holding that res judicata barred a vicarious liability action against an employer when the employee had previously been dismissed with prejudice from the case as part of a settlement agreement even though the settlement agreement expressly reserved the right to sue the employer.