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Longmire v. Estate of Ruffin8/24/2005
because Longmire was not yet clearly adverse in the pending case, and because the trial had not yet resulted in determining and apportioning liability or damages, Longmire's claim was a contingent claim, dependent upon some future event. Cf. U.S. Trust Co. v. Haig, 694 So. 2d 769 (Fla. 4th DCA 1997).
We conclude, however, that the circumstances here are analogous to those in Ortolano v. Goforth, 766 So. 2d 330 (Fla. 4th DCA 2000). In Ortolano, we recognized that the claim was not contingent because "the events that allegedly establish liability have already occurred" and "the only contingency was winning the lawsuit." Ortolano, 766 So. 2d at 332. In other words, the "claim" was not contingent, "payment" of it was. Similarly, the Second District, in Foster v. Cianci, 773 So. 2d 1181 (Fla. 2d DCA 2000), ruled that a personal injury cause of action was not a contingent claim and actual notice was required.
We deem both Ortolano and Cianci on point. Each deals with litigation arising from known events that occurred prior to death. Haig, on the other hand, deals with a five-year guaranty for structural defects arising out of the sale of property; in the event defects were discovered in the future, the cost to repair would be offset against a mortgage balance. There, any potential claim would arise only for presently unknown defects that might surface in the future. At the time of death, no defect had been discovered and communicated to the decedent.
We note that the legislature has subsequently amended section 733.212. Section 733.212(a) now provides:
The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors. Impracticable and extended searches are not required. . . .
Clearly, it is the legislature's intent that policy concerns for timely resolution of estates should not foreclose bona fide ascertainable claims against an estate. This amendment, as it is, is essentially a clarification of existing law.
On the consolidated wrongful death claim, the trial court based its decision to dismiss entirely upon the probate order denying an extension to file claim. It is undisputed that reversal of the one is dispositive of the other. Therefore, in each of the consolidated cases, we reverse and remand for further proceedings.
SHAHOOD and MAY, JJ., concur.
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