Samantha Elaine Tsuji v. H. Bart Fleet, etc.

Supreme Court of Florida
____________

No. SC2021-1255
____________

SAMANTHA ELAINE TSUJI, et al.,
Petitioners,

vs.

H. BART FLEET, etc., et al.,
Respondents.

June 29, 2023

COURIEL, J.

In the end—often a good place to start—this is a negligence

case against a man that was filed more than three years after he

died. Section 733.710(1), Florida Statutes (2013), tells us that is

too late by over a year. The First District Court of Appeal affirmed

the judgment of a trial court saying as much. Tsuji v. Fleet, 326 So.

3d 143, 145 (Fla. 1st DCA 2021). It did so notwithstanding a

contrary decision of the Fourth District Court of Appeal that had

found in another law, section 733.702(4)(b), Florida Statutes (1995),

a reason to disregard section 733.710(1)’s prohibition where, as
here, a plaintiff in a negligence action sought money damages from

the decedent’s insurer rather than from the decedent himself (or

from his estate, his personal representative, or his beneficiaries).

Pezzi v. Brown, 697 So. 2d 883, 886 (Fla. 4th DCA 1997). 1

The First District is correct. Section 733.710(1) extinguishes

the claim at issue in this case. That statute is, as we have said

before, a “jurisdictional statute of nonclaim” or “statute of repose.”

That means it “bar[s] actions by setting a time limit within which an

action must be filed as measured from a specified act, after which

time the cause of action is extinguished.” Merkle v. Robinson, 737

So. 2d 540, 542 n.6 (Fla. 1999); see also Jones v. Golden, 176 So.

3d 242, 248 (Fla. 2015). It follows from this conclusion, the First

District also correctly decided, that the decedent’s employer was

exonerated from vicarious liability claims based on the decedent’s

negligence. We therefore approve the First District’s decision below

and disapprove the Fourth District’s decision in Pezzi.

1. We have jurisdiction because the First District certified a
direct conflict with the Fourth District’s decision in Pezzi. See art.
V, § 3(b)(4), Fla. Const.

-2-
I

On June 11, 2014, Thomas E. Morton Jr. injured the

petitioners, Samantha Tsuji and Crystal Williams, in a car accident.

At the time of the accident, Morton was working for the Lewis Bear

Company (LBC) and driving a company-owned car within the course

of his employment. More than three years later, on February 6,

2018, the petitioners sought redress. They sued Morton for

negligently operating the car and LBC for vicarious liability under

the doctrines of respondeat superior and dangerous

instrumentality. But the petitioners soon learned that Morton had

died of unrelated causes only weeks after the accident, on June 28,

2014. So the petitioners substituted the personal representative of

Morton’s estate, H. Bart Fleet, for Morton himself, and reduced their

request for damages against the estate to the limits of Morton’s

casualty insurance coverage.2

2. While the petitioners’ claims against LBC were not limited
in the amended complaint, the petitioners now state that their
claims against LBC are also capped by the limits of LBC’s casualty
insurance coverage.

-3-
LBC moved for summary judgment. It argued that section

733.710(1) barred the petitioners’ claims against the estate because

the statute required the petitioners to bring claims within two years

of the decedent’s death—something the petitioners failed to do.

Additionally, LBC, citing Buettner v. Cellular One, Inc., 700 So. 2d

48 (Fla. 1st DCA 1997), asserted that because section 733.710(1)

exonerated the estate from liability, so too was LBC exonerated from

vicarious liability for Morton’s negligence.

In response, the petitioners cited Pezzi, 697 So. 2d at 886, and

this Court’s statements approving that decision in May v. Illinois

National Insurance Co., 771 So. 2d 1143 (Fla. 2000). 3 The

3. In May, we answered a fairly technical certified question
from the United States Court of Appeals for the Eleventh Circuit:
whether sections 733.702 and 733.710, alone or together, function
as statutes of nonclaim (such that, absent an exception, claims not
presented within the periods they designate would not be binding
on an estate) or as statutes of limitation (such that a party seeking
to invoke them would have to plead and prove its applicability as
affirmative defenses to avoid waiver). 771 So. 2d at 1145. We said
section 733.702 is a statute of limitations that cannot be waived in
a probate proceeding by failure to object to a claim on timeliness
grounds, and section 733.710 is a jurisdictional statute of nonclaim
that is not subject to waiver or extension in a probate case. Id. We
also remarked that “it is well settled that the total failure to file a
timely claim against an estate does not prevent a creditor from
recovering up to the policy limits of a decedent’s casualty

-4-
petitioners argued that a plaintiff—under section 733.702(4)(b)—

can bring claims against a decedent’s estate over two years after the

decedent’s death if the plaintiff seeks recovery from only the

decedent’s casualty insurance.

The trial court agreed with LBC and ruled that section

733.710(1) barred the petitioners’ action against the estate because

the petitioners failed to file the claims within two years of Morton’s

death. And because the petitioners could not file suit to hold the

estate liable, LBC also could not be held vicariously liable. The

petitioners moved for rehearing, arguing that the trial court

overlooked section 733.702(4)(b)’s casualty insurance exception and

this Court’s decision in May, 771 So. 2d at 1157 n.13, 1159. The

trial court denied that motion. Tsuji v. Fleet, No. 2018-CA-000218,

2020 WL 3527555 (Fla. 1st Cir. Ct. Feb. 21, 2020).

insurance.” Id. at 1159; see also id. at 1157 n.13 (stating the
same). These assertions were “not essential to the decision” in May,
that is, the question certified to us by the Eleventh Circuit. State ex
rel. Biscayne Kennel Club v. Bd. of Bus. Regul., 276 So. 2d 823, 826
(Fla. 1973). They are therefore “without force as precedent” though
we do of course note them. Id.

-5-
On appeal, the First District affirmed, holding that section

733.710(1) bars the petitioners from bringing claims based on

Morton’s negligence against the estate beyond the two-year time

limit, and because of this, the petitioners also could not hold LBC

vicariously liable for Morton’s negligence. Tsuji, 326 So. 3d at 147-

49.4 The petitioners then sought review from this Court.

II

We first address whether section 733.710, Florida Statutes,

bars the petitioners’ claims against Fleet, the personal

representative of Morton’s estate.5 It does. In reaching that

conclusion, we consider the petitioners’ arguments about how

section 733.702 informs our reading of section 733.710.

4. The district court also concluded that section 627.4136(1),
Florida Statutes—Florida’s nonjoinder insurance statute—prevents
the petitioners from joining a casualty insurer before obtaining a
settlement or verdict against Morton’s estate. Tsuji, 326 So. 3d at
147.

5. As this case requires us to construe statutes, our review of
the First District’s analysis is de novo. Alachua Cnty. v. Watson,
333 So. 3d 162, 169 (Fla. 2022).
-6-
A

When we construe statutes, “our first (and often only) step . . .

is to ask what the Legislature actually said in the statute, based

upon the common meaning of the words used” when the statute

was enacted. Shepard v. State, 259 So. 3d 701, 705 (Fla. 2018)

(quoting Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 313

(Fla. 2017) (Lawson, J., concurring in part and dissenting in part)).

To derive this common meaning, we must “be mindful of the

‘fundamental principle of statutory construction (and, indeed, of

language itself) that the meaning of a word cannot be determined in

isolation, but must be drawn from the context in which it is used.’ ”

Lab’y Corp. of Am. v. Davis, 339 So. 3d 318, 324 (Fla. 2022)

(quoting Deal v. United States, 508 U.S. 129, 132 (1993)). And in

cases that task us with interpreting multiple provisions, where

possible, we “must give full effect to all statutory provisions and

construe related statutory provisions in harmony with one another.”

Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d

452, 455 (Fla. 1992).

-7-
B

Part VII of chapter 733 of the Florida Probate Code has two

sets of limits that, together, bring order to creditors’ claims against

estates: one resides in section 733.702 and the other in section

733.710.

Section 733.702 “fixes the basic time frame for filing of claims

in decedent’s estates being probated in Florida.” May, 771 So. 2d at

1155 (quoting Comerica Bank & Tr., F.S.B. v. SDI Operating

Partners, L.P., 673 So. 2d 163, 165 (Fla. 4th DCA 1996)). It says, at

subsection (1):

If not barred by s. 733.710, no claim or demand against
the decedent’s estate that arose before the death of the
decedent . . . and no claim for damages, including, but
not limited to, an action founded on fraud or another
wrongful act or omission of the decedent, is binding on
the estate, on the personal representative, or on any
beneficiary unless filed in the probate proceeding on or
before the later of the date that is 3 months after the time
of the first publication of the notice to creditors or, as to
any creditor required to be served with a copy of the
notice to creditors, 30 days after the date of service on
the creditor . . . .

§ 733.702(1), Fla. Stat. We have described this as a statute of

limitations, May, 771 So. 2d at 1150, and it bars untimely claims

even if “no objection to the claim is filed.” § 733.702(3), Fla. Stat.

-8-
The statute of limitations can be extended only in three

circumstances: “fraud, estoppel, or insufficient notice of the claims

period.” Id.

In subsection (2), the statute provides:

No cause of action, including, but not limited to, an
action founded upon fraud or other wrongful act or
omission, shall survive the death of the person against
whom the claim may be made, whether or not an action
is pending at the death of the person, unless a claim is
filed within the time periods set forth in this part.

§ 733.702(2), Fla. Stat. This provision sweeps more broadly than

subsections (1) and (3), as it incorporates not only the periods

outlined in section 733.702, but also those elsewhere in part VII of

chapter 733 of the Florida Statutes, such as section 733.710(1).

Subsection (4) then enumerates three exceptions to the

limitations found in subsections (1), (2), and (3). Of relevance to

this case, the Legislature provided that: “[n]othing in [section

733.702] affects or prevents[,] . . . [t]o the limits of casualty

insurance protection only, any proceeding to establish liability that

is protected by the casualty insurance.” § 733.702(4)(b), Fla. Stat. 6

6. The other two exceptions are: section 733.702(4)(a), Florida
Statutes (“A proceeding to enforce any mortgage, security interest,

-9-
Importantly, however, subsection (5) makes clear that: “Nothing in

[section 733.702] shall extend the limitations period set forth in

s. 733.710.” § 733.702(5), Fla. Stat.

So we come to subsection (1) of section 733.710, which

provides:

Notwithstanding any other provision of the code, 2 years
after the death of a person, neither the decedent’s estate,
the personal representative, if any, nor the beneficiaries
shall be liable for any claim or cause of action against the
decedent, whether or not letters of administration have
been issued, except as provided in this section.

§ 733.710(1), Fla. Stat.

There are only two exceptions to this statute of repose or

nonclaim. Subsection (2) provides that section 733.710(1) “shall

not apply to a creditor who has filed a claim pursuant to s. 733.702

within 2 years after the person’s death, and whose claim has not

been paid or otherwise disposed of pursuant to s. 733.705.” §

733.710(2), Fla. Stat. And subsection (3) provides that section

or other lien on property of the decedent.”), and section
733.702(4)(c), Florida Statutes (“The filing of a cross-claim or
counterclaim against the estate in an action instituted by the
estate; however, no recovery on a cross-claim or counterclaim shall
exceed the estate’s recovery in that action.”).

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733.710(1) “shall not affect the lien of any duly recorded mortgage

or security interest or the lien of any person in possession of

personal property or the right to foreclose and enforce the mortgage

or lien.” § 733.710(3), Fla. Stat. Neither of these exceptions

addresses casualty insurance.

When no exception applies, an untimely claim is

“automatically barred.” Barnett Bank of Palm Beach Cnty. v. Estate

of Read, 493 So. 2d 447, 448 (Fla. 1986). Section 733.710(1) is in

that sense “a self-executing, absolute immunity to claims filed for

the first time . . . more than 2 years after the death of the person

whose estate is undergoing probate.” May, 771 So. 2d at 1156

(quoting Comerica, 673 So. 2d at 167).

C

The petitioners filed their claims more than two years after

Morton’s death. If the petitioners’ claims seek to hold Fleet “liable”

for claims against Morton, then they are barred under section

733.710(1). So we have to decide: is Fleet “liable” under section

733.710(1) given that the petitioners seek only payment from a

casualty insurance provider? We decide he is, and that therefore

petitioners’ claims are untimely.
- 11 -
The petitioners assert that “liable” in this context means only

“[t]he state or condition of a person who is responsible for payment

or who is under obligation to pay.” Initial Brief of Petitioners at 44

(alteration in original) (quoting Liability, Ballentine’s Law Dictionary

751 (2d ed. 1948)) (emphasis removed). They call this the “pay-

money” sense of the word, as opposed to “[t]he state or condition of

a person after he has breached his contract or violated any

obligation resting upon him,” id. at 45 (quoting Liability,

Ballentine’s Law Dictionary 751) (emphasis removed), which they

describe as the “breach-of-duty” sense of the word. And here, the

petitioners say, they seek only damages up to the limits of any

casualty insurance coverage under section 733.702(4)(b), meaning

they do not seek to hold Fleet “liable” for claims against Morton in

the “pay-money” sense of the word. He may have been responsible

for the decedent’s breach of a duty, but he does not have to pay; an

insurer does. This, they say, means their claims are not barred

even though they were filed more than two years after Morton’s

death.

In support of their reading, the petitioners rely on the context

of section 733.710(1), the canon against surplusage, and the
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Legislature’s inaction following the Fourth District’s decision in

Pezzi and our approval of that decision in dicta in May. None of

those arguments pan out.

1

The petitioners argue that their proposed reading of “liable”

makes sense in the context of section 733.710(1). After all, section

733.710(1) concerns claims against the decedent, not the estate,

personal representative, or any beneficiary. A plaintiff must prove

that the decedent—the decedent during his life, that is—breached a

duty owed to the plaintiff. The most an estate, personal

representative, or any other beneficiary could do would be to pay for

the decedent’s injurious conduct; none of them could be liable for

that conduct in the sense of being in “the state or condition of a

person after he has breached his contract or violated any obligation

resting upon him.” Liability, Ballentine’s Law Dictionary 751 (2d ed.

1948).

We do not read the context as the petitioners do. The word

“liable” appears in section 733.710(1), which, as a statute of repose

or nonclaim, “automatically bars untimely claims.” May, 771 So.

2d at 1157. Absent instruction from the Legislature, we will not
- 13 -
interpret a statute of repose or nonclaim, which “puts an outer limit

on the right to bring a civil action,” Hess v. Philip Morris USA, Inc.,

175 So. 3d 687, 696 (Fla. 2015) (quoting CTS Corp. v. Waldburger,

573 U.S. 1, 8 (2014)), to do what the petitioners ask of this one: to

give repose from some proceedings but not others. 7

Nor did the Legislature give us, as it might have, an express

indication that “liable” means what the petitioners say it does, here.

Absent a legislatively supplied definition, we give the word “liable”

its “plain and ordinary meaning” at the time of the statute’s

enactment, and we often look to contemporaneous dictionaries for

evidence of that meaning. See Sch. Bd. of Palm Beach Cnty. v.

Survivors Charter Schs., Inc., 3 So. 3d 1220, 1233 (Fla. 2009).

Webster’s Third New International Dictionary defines “liable,” in

part, as “bound or obligated according to law or equity.” Liable,

Webster’s Third New International Dictionary 1302 (1986). The sixth

edition of Black’s, published only a year after section 733.710(1)

was first enacted, defines “liable” as: “[b]ound or obliged in law or

equity; responsible; chargeable; answerable; compellable to make

7. The Legislature has provided such instruction in both
section 733.710(2) and section 733.710(3), but neither applies here.
- 14 -
satisfaction, compensation, or restitution.” Liable, Black’s Law

Dictionary 915 (6th ed. 1990). 8 And The American Heritage

Dictionary defines the term, in part, as “[l]egally obligated;

responsible.” Liable, The American Heritage Dictionary 1036 (3d ed.

1992). The neighboring language in section 733.710 refers to

liability “for any claim or cause of action against the decedent,” and

not, for example, a money judgment, charge, or amount due—all of

which would square more naturally with what the petitioners call

the “pay-money” understanding of the word.

All this makes clear that Fleet can be held “liable” under the

meaning of the term in section 733.710(1) without a finding that he

breached a duty owed to the petitioners. Because the petitioners

seek to hold Fleet—a personal representative who “stands in [the]

shoes” of Morton, Sullivan v. Sessions, 80 So. 2d 706, 707 (Fla.

8. Black’s also defines “liable” as: “Obligated; accountable for
or chargeable with. Condition of being bound to respond because a
wrong has occurred. Condition out of which a legal liability might
arise. . . . Justly or legally responsible or answerable. Exposed or
subject to a given contingency, risk, or casualty, which is more or
less probable. Exposed, as to damage, penalty, expense, burden, or
anything unpleasant or dangerous.” Liable, Black’s Law Dictionary
915 (6th ed. 1990).

- 15 -
1955)—responsible, accountable, answerable, and chargeable for a

claim that they have against Morton, they effectively seek to hold

Fleet “liable” for a claim they have against Morton under section

733.710(1).

There is also the fact that the Legislature uses “liable” and

“liability” throughout the code in a way that is hard to square with

the petitioners’ proposed understanding of the term. Take section

733.702(4)(b) itself: the Legislature excepted “any proceeding to

establish liability that is protected by the casualty insurance” from

the timeliness bars set out elsewhere in section 733.702. Any

recovery under subsection (4)(b), however, is cabined to “the limits

of the casualty insurance protection only,” meaning a defendant in

a proceeding under this subsection, like Fleet, would not be

responsible for the payment of damages, and therefore would not be

“liable” in the “pay-money” sense of the word. And yet, the

Legislature still used the term “liability.” We see no reason to read

“liable” and “liability” to mean different things across part VII of

chapter 733.

Other uses of “liability” and “liable” in the Florida Statutes also

refute the petitioners’ proposed reading of section 733.710(1). On
- 16 -
at least some occasions when the Legislature has used “liability” in

what the petitioners term the “pay-money” sense, it has done so

explicitly. For example, as the petitioners recognize, Initial Brief of

Petitioners at 45, the Legislature defined “liability” to mean “the

obligation to pay a judgment, settlement, penalty, fine . . . or

reasonable expenses incurred with respect to a proceeding” in

chapter 607, the Florida Business Corporation Act. § 607.0850(5),

Fla. Stat. (2022). In section 112.312, the Legislature defined

“liability” in Florida’s code of ethics for public employees as “any

monetary debt or obligation owed by the reporting person to

another person, entity, or governmental entity,” with some

exceptions not relevant here. § 112.312(14), Fla. Stat. (2022). And

for part of the Insurance Code, the Legislature defined “liability” in

part as “legal liability for damages.” § 627.942(4), Fla. Stat. (2022).

There is no such definition in the statutes with which we are

working here.

Something else is missing: where the Legislature has specified

that it is using “liable” exclusively in the “pay-money” sense, it often

identifies which parties are, or are not, liable “for damages.” See,

e.g., § 83.67(4), Fla. Stat. (2022) (“The landlord is not liable for
- 17 -
damages caused by a United States flag displayed by a tenant.”);

§ 394.459(10), Fla. Stat. (2022) (“Any person who violates or abuses

any rights or privileges of patients provided by this part is liable for

damages as determined by law.”); § 624.155(4), Fla. Stat. (2022)

(“Upon adverse adjudication at trial or upon appeal, the authorized

insurer shall be liable for damages, together with court costs and

reasonable attorney’s fees incurred by the plaintiff.”). Here,

however, the Legislature did not use “liable” in this narrow way: it

did not provide in section 733.710(1) that the decedent’s estate, the

personal representative, or the beneficiaries shall not be liable “for

damages” for any claim or cause of action against the decedent

brought more than two years after the decedent’s death. This

absence suggests that we should not read “liable” in section

733.710(1) narrowly to refer only to the obligation to pay.

Given the context in which we find “liable,” the commonly

understood meaning of the term, and the Legislature’s usage of

“liable” and “liability” both in part VII of chapter 733 and elsewhere

in the code, we conclude that section 733.710(1) bars the

petitioners’ claims against Fleet.

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2

The petitioners also invoke the canon against surplusage, “an

elementary principle of statutory construction that significance and

effect must be given to every word, phrase, sentence, and part of the

statute if possible.” Hechtman v. Nations Title Ins. of New York, 840

So. 2d 993, 996 (Fla. 2003). They say that the First District’s

reading of section 733.710(1) renders duplicative section

733.702(2), which extinguishes any cause of action not filed within

the periods set forth in part VII of chapter 733, including section

733.710(1)’s two-year time bar. If, according to the petitioners,

section 733.710(1) bars their claims, then the Legislature would

have had no reason to extend the reach of section 733.702(2) to

also extinguish a cause of action filed beyond section 733.710(1)’s

two-year time bar. 9 The petitioners also argue that the First

9. The petitioners further argue that we should not read
section 733.710(1) to protect unenumerated parties, as that would
also result in overlap with section 733.702(2), which protects any
defendant facing an untimely claim. But we do not read section
733.710(1) to bar a proceeding against either LBC or a casualty
insurer, both unenumerated parties. Instead, as a consequence of
our conclusion that section 733.710(1) bars the petitioners’ claims
against Fleet, the exoneration rule operates to bar the petitioners’
claims against LBC. See infra Section III. And it would be Florida’s

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District renders inoperative part of section 733.702(4)—the one that

says nothing in section 733.702(2), including its extinguishment of

causes of action filed outside the period provided in subsection

733.710(1), affects or prevents exceptions listed in subsection (4).

The canon against surplusage, which is in any event not “an

absolute rule,” Marx v. Gen. Revenue Corp., 568 U.S. 371, 385

(2013), is also not “a license for the judiciary to rewrite language

enacted by the legislature,” United States v. Albertini, 472 U.S. 675,

680 (1985). Section 733.702(4)(b) provides an exception to the

limits provided elsewhere in section 733.702, and section

733.710(1) stands as the ultimate backstop that “automatically

bars untimely claims” filed against the estate, its personal

representative, or any beneficiaries more than two years after the

decedent’s death absent the applicability of one of the exceptions

outlined elsewhere in section 733.710. May, 771 So. 2d at 1157.

nonjoinder insurance statute, not section 733.710(1), that then
prevents the petitioners from reaching insurers absent a settlement.
See § 627.4136(1), Fla. Stat. (providing that before a plaintiff can
maintain a cause of action against a liability insurer they must
“first obtain a settlement or verdict against a person who is an
insured”).

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Even informed by our consideration of the canon against

surplusage, we read section 733.710 as an insurmountable obstacle

to the petitioners’ claims against Fleet. See Heyman v. Cooper, 31

F.4th 1315, 1321-22 (11th Cir. 2022) (“[O]ur obligation is to the text

and not the canons per se.”).

The canon is also of no help because the petitioners’ proposed

reading fails to give effect to every clause and word of the statutory

provisions at issue. See Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S.

91, 106 (2011) (“[T]he canon against superfluity assists only where

a competing interpretation gives effect ‘to every clause and word of a

statute.’ ”) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).

Under the petitioners’ proposed reading, the other two

exceptions found in section 733.702(4) would also be exceptions to

section 733.710(1). One of these exceptions provides “[n]othing in

this section affects or prevents . . . [a] proceeding to enforce any

mortgage, security interest, or other lien on property of the

decedent.” § 733.702(4)(a), Fla. Stat. An exception found in section

733.710, however, already provides that section 733.710(1) does

not “affect the lien of any duly recorded mortgage or security

interest or the lien of any person in possession of personal property
- 21 -
or the right to foreclose and enforce the mortgage or lien.”

§ 733.710(3), Fla. Stat. While the scope of the two exceptions is not

identical, the petitioners’ proposed reading creates significant

overlap, meaning it fails to give independent effect to every provision

in both section 733.702 and section 733.710.

In the end, the canon against surplusage does not tip the

scales in the petitioners’ favor—especially since some degree of

surplusage would result under either party’s reading.

3

Nor are we persuaded that the petitioners can infer their way

to a win simply because Pezzi has not been expressly repudiated by

the Legislature. “[W]e walk on quicksand when we try to find in the

absence of corrective legislation a controlling legal principle.”

Helvering v. Hallock, 309 U.S. 106, 121 (1940) (Frankfurter, J.). We

walk on much firmer ground when we find controlling legal

principles in legislation that stems from the processes outlined in

our Constitution. See art. III, Fla. Const. This is because our job is

to interpret statutes according to their meaning when enacted, not

to search for some hidden meaning in the inaction of the

Legislature between the decision in Pezzi and the present (especially
- 22 -
when we cannot identify one reason for this inaction). See Johnson

v. Transp. Agency, Santa Clara Cnty., Cal., 480 U.S. 616, 672 (1987)

(Scalia, J., dissenting).

The story told by legislative inaction is also inconclusive

because this Court has never declaratively weighed in on the

question that now confronts us. Our statements in May supporting

the result reached in Pezzi were not essential to our holding. 10 So

these statements are “without force as precedent,” State ex rel.

Biscayne Kennel Club, 276 So. 2d at 826, and to the point that

legislative acquiescence is used to justify statutory stare decisis, see

Johnson, 480 U.S. at 629 n.7 (majority opinion), it is irrelevant

here.

If the Legislature truly favors the scheme outlined in Pezzi, it

has the tools to make it the law. Silence, in the face of a clear

statute that cuts the other way, will not do. See Rapanos v. United

10. See supra note 3.

- 23 -
States, 547 U.S. 715, 750 (2006) (plurality opinion) (“Congress

takes no governmental action except by legislation.”). 11

D

Given the clarity with which the Legislature spoke, this is a

case in which our analysis begins and ends with the statutory

language. See Comerica, 673 So. 2d at 168 (“[T]here is no

ambiguity in the words used in section 733.710.”). Section

733.710(1) “sets an absolute deadline beyond which no claim may

be entertained” absent the applicability of one of the exceptions

outlined in sections 733.710(2) and 733.710(3). May, 771 So. 2d at

1155 (quoting Comerica, 673 So. 2d at 165). And the petitioners,

despite seeking damages only up to the limits of any casualty

11. We are also told that approving the First District’s opinion
would upset settled expectations in probate law, place a heavy
burden on trial lawyers, and cause increased expenses in probate
court, with more parties filing claims in probate court to avoid
section 733.710(1)’s two-year bar. See Amicus Brief of Probate
Attorneys in Support of Neither Party at 5-9. This case, however,
does “not turn on our view of the ‘better’ policy, but turns solely on
statutory interpretation.” Survivors Charter Schs., Inc., 3 So. 3d at
1228. And because our interpretation of the statutory provisions at
issue leads us to conclude section 733.710(1) bars the petitioners’
claims, we have no license to say otherwise.

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insurance policy, seek to hold Fleet “liable” for claims against

Morton. Because the petitioners’ claims against Morton’s estate,

through Fleet, were filed beyond section 733.710(1)’s two-year

deadline and do not qualify under either exception, they are barred.

III

What about Morton’s employer, LBC? Again, the First District

was right. When a statute of repose bars claims against an agent

for negligence, the principal is exonerated from vicarious liability

arising solely from that agent’s negligence.

An employer may sometimes be liable for an employee’s

negligent acts committed within the course and scope of

employment—even if the employer is without fault. Mercury Motors

Exp., Inc. v. Smith, 393 So. 2d 545, 549 (Fla. 1981). Similarly, an

individual with an identifiable property interest in a vehicle, most

often the titleholder, who gives authority to another to operate the

vehicle will be liable for injuries to third persons arising from the

vehicle’s negligent operation. Christensen v. Bowen, 140 So. 3d

498, 501-02 (Fla. 2014).

But under either theory, LBC’s liability is vicarious—that is, it

only answers for the liability of another. See Alexander v. Alterman
- 25 -
Transp. Lines, Inc., 350 So. 2d 1128, 1130 (Fla. 1st DCA 1977)

(under the doctrine of respondeat superior, an employer is liable for

its employee’s negligence undertaken within the scope of

employment notwithstanding the employer’s conduct); Christensen,

140 So. 3d at 501 (the dangerous instrumentality doctrine imposes

“strict vicarious liability” on those with an identifiable property

ownership interest in the negligently driven vehicle). In other

words, LBC’s liability depends on Morton’s liability. See Am. Home

Assur. Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 471 (Fla.

2005) (“[V]icarious liability allows for parties that are not at fault to

be held liable for the actions of active tortfeasors.”); Williams v.

Hines, 86 So. 695, 697 (Fla. 1920) (an alleged vicariously liable

employer and an employee “are in no sense joint tort-feasors”).

And because an alleged vicariously liable employer and its

employee “are in no sense joint tort-feasors,” a party must establish

an employee’s liability in a vicarious liability action against the

employer. See Williams, 86 So. at 697. If a party fails to do so,

thus exonerating the employee, “a principal cannot be held liable”

either. Bankers Multiple Line Ins. Co. v. Farish, 464 So. 2d 530, 532

(Fla. 1985).
- 26 -
Applying this common law rule—the “exoneration rule”—for

vicarious liability claims against an employer has turned on

whether the underlying claims against the employee have been

“adjudicated on the merits.”12 Consequently, the pertinent question

before us is whether section 733.710(1), a “jurisdictional statute of

nonclaim that automatically bars untimely claims,” May, 771 So.

2d at 1157, constitutes such an adjudication where the provision

bars the petitioners’ claims against Morton’s estate.

12. Compare Mallory v. O’Neil, 69 So. 2d 313, 315 (Fla. 1954)
(explaining that “if the employee is not liable[,] the employer is not
liable”), Walsingham v. Browning, 525 So. 2d 996, 997-98 (Fla. 1st
DCA 1988) (holding that the claimants’ voluntary dismissal with
prejudice was sufficient for precluding a vicarious liability claim),
Jones v. Gulf Coast Newspapers, Inc., 595 So. 2d 90, 91 (Fla. 2d
DCA 1992) (holding that a settlement resulting in a joint motion to
dismiss with prejudice exonerated the employer from vicarious
liability), and Buettner, 700 So. 2d at 48 (“[W]hen a principal’s
liability rests solely on the doctrine of respondeat superior, a
principal cannot be held liable if the agent is exonerated.”) (quoting
Farish, 464 So. 2d at 532), with JFK Med. Ctr., Inc. v. Price, 647 So.
2d 833, 834 (Fla. 1994) (holding that voluntary dismissal of active
tortfeasor, with prejudice, entered by agreement of parties under a
settlement, is not equivalent to an adjudication on merits that
would bar continued litigation against passive tortfeasor), and Price
v. Beker, 629 So. 2d 911, 912 (Fla. 4th DCA 1993) (rejecting
Walsingham and Jones and noting that Florida Rule of Civil
Procedure 1.420(a)(1) does not list a dismissal with prejudice as a
decision on the merits), approved sub nom. JFK Med. Ctr., 647 So.
2d at 833.

- 27 -
We conclude that it does, meaning LBC is exonerated from

vicarious liability. That is because statutes of nonclaim are

“legislative determinations that there must be an outer limit beyond

which claims may not be instituted.” Hess, 175 So. 3d at 695

(quoting Kush v. Lloyd, 616 So. 2d 415, 421 (Fla. 1992)) (cleaned

up). As a principal’s vicarious liability is dependent on that of the

agent, allowing such a lawsuit to proceed against the principal

when a statute of nonclaim bars the underlying claim against the

agent would effectively permit a plaintiff to circumvent the statute.

See Carr v. Broward Cnty., 541 So. 2d 92, 95 (Fla. 1989) (“[S]tatutes

of repose are a valid legislative means to restrict or limit causes of

action in order to achieve certain public interests.”).

Concluding that section 733.710(1)’s time bar on the

petitioners’ claims against LBC constitutes an “adjudication on the

merits” finds support in our case law. Namely, in Allie v. Ionata, we

held that a judgment dismissing a claim as time-barred was an

“adjudication on the merits” for res judicata purposes. 503 So. 2d

1237, 1241-42 (Fla. 1987); see also Carnival Corp. v. Middleton, 941

So. 2d 421, 424 (Fla. 3d DCA 2006) (“[A] dismissal based on statute

of limitations grounds constitutes an adjudication on the merits for
- 28 -
purposes of res judicata.”). We also stated in Allie that “[t]he

expiration of a statute of limitations does not resolve the underlying

merits of the consequently barred claim in favor of either party.”

503 So. 2d. at 1239-40. Yet, as Allie’s holding makes plain, the

dismissal of an untimely claim (like the one here) can amount to an

“adjudication on the merits” even if the claim’s underlying merits

were never actually “resolve[d].” Id. at 1240-42; cf. Elbadramany v.

Bryson Crane Rental Servs., Inc., 630 So. 2d 214, 216 (Fla. 5th DCA

1993) (“A default judgment bars any claims asserted therein and

operates as res judicata on the issues.”).

Other courts of this State have similarly concluded that a time

bar on claims against an agent acts as an adjudication on the

merits to exonerate the principal. Take Buettner, 700 So. 2d at 48,

a case that the First District below found dispositive as to LBC’s

liability. There, the district court reviewed a final summary

judgment dismissing as untimely the plaintiffs’ vicarious liability

claim against an employer filed more than two years after the death

of the deceased employee. Id. “[B]ased on the two-year statute of

limitations . . . in sections 733.702(5) and 733.710,” the trial court

had entered judgments for both the employee and the employer. Id.
- 29 -
at 48, 48 n.1. On appeal, the First District affirmed. After holding

that the dismissal of the untimely liability action against the

employee under sections 733.702(5) and 733.710(1) exonerated the

employee, the district court concluded that the vicarious liability

action against the employer was barred under the exoneration rule.

Id. (citing Farish, 464 So. 2d at 532).

In the end, claims based on vicarious liability are unavailable

against LBC because section 733.710(1)’s bar on untimely claims

against Morton through his estate amounts to an “adjudication on

the merits.” Accordingly, the First District correctly held that

section 733.710(1)’s statute of nonclaim exonerates LBC from

vicarious liability for Morton’s negligence.

IV

For the reasons stated above, we approve the First District’s

decision and disapprove the Fourth District’s decision on the

applicability of section 733.710(1). We also approve the decision of

the First District as to the exoneration rule.

It is so ordered.

- 30 -
MUÑIZ, C.J., and CANADY, GROSSHANS, and FRANCIS, JJ.,
concur.
LABARGA, J., dissents with an opinion.
SASSO, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

LABARGA, J., dissenting.

I agree with the majority that if the claims against the

decedent’s estate are barred by the statute, then LBC cannot be

vicariously liable. However, because I would hold that sections

733.702 and 733.710, Florida Statutes, do not bar the claim

against Morton’s estate, I dissent.

To conclude that sections 733.702 and 733.710 bar suit, the

majority pleads for exacting specificity where none is needed. It is

correct that a word’s context guides us through linguistics’ murky

waters. See majority op. at 7; Lab’y Corp. of Am. v. Davis, 339 So.

3d 318, 324 (Fla. 2022) (quoting Deal v. United States, 508 U.S.

129, 132 (1993)); Textron Lycoming Reciprocating Engine Div., Avco

Corp. v. United Auto., Aerospace & Agric. Implement Workers of Am.,

Int’l Union, 523 U.S. 653, 657 (1998) (where Justice Scalia explains

that drawing upon a term’s context is a “fundamental principle” of

interpretation). But contrary to the majority’s interpretation of the
- 31 -
term “liable,” that context actually provides the clarity the majority

yearns for and compels a different result.

In interpreting “liable,” the majority ignores the term’s context

to hold that more precise language is required for the statute to say

what it indeed already says. However, the context of the statute

alone makes it apparent: the estate and its proxies can only be

liable for claims against the decedent in a pay-money sense, and so

in protecting those entities, the term “liable” in 733.710 can only

refer to pay-money liability. See § 733.710, Fla. Stat. The words of

the statute itself naturally lead to the pay-money interpretation.

That alone should settle the issue. Rather than address this

argument on its merits, the majority looks elsewhere to muddy the

statute’s clear language, and then asks for clarity.

For example, the majority notes the lack of a legislatively

supplied definition of “liable” and seeks out the word’s “plain and

ordinary meaning” at the time of the statute’s enactment. At the

outset, when the term’s context compels the meaning, it is a step

- 32 -
too far to search for a specific definition from the Legislature. 13 See

Nehme v. Smithkline Beecham Clinical Laboratories, Inc., 863 So. 2d

201, 204-05 (Fla. 2003) (“[w]e give statutory language its plain and

ordinary meaning, unless words are defined in the statute or by the

clear intent of the legislature. . . . When necessary, the plain and

ordinary meaning of words can be ascertained by reference to a

dictionary.”) (first quoting Green v. State, 604 So. 2d 471, 473 (Fla.

1992); and then Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001))

(emphasis added). Furthermore, use of a word’s “plain and

ordinary meaning” to muddle a self-evident interpretation distorts

an otherwise well-reasoned principle. See Hampton v. State, 103

So. 3d 98, 110 (Fla. 2012) (“Accordingly, the phrase should be

afforded its plain and ordinary meaning, giving due regard to the

context within which it is used.”) (emphasis added); Willens v.

Garcia, 53 So. 3d 1113, 1116 (Fla. 3d DCA 2011) (“One of the

fundamental tenets of statutory construction requires courts to give

13. Even to the majority’s point, Black’s Law Dictionary
included “compellable to make satisfaction, compensation, or
restitution” as a definition of “liable.” Liable, Black’s Law Dictionary
915 (6th ed. 1990). The pay-money understanding of liability is
well within the word’s “plain and ordinary meaning.”

- 33 -
the words of a statute the plain and ordinary meaning usually

attributed to them, unless a different meaning or connotation

necessarily is implied from the manner or context in which the

words are used.”).

In support of its conclusion, the majority looks to other uses of

“liability” in the pay-money sense throughout the Florida Statutes,

noting that those instances have been accompanied by more precise

language. See majority op. at 17. But again, such precise language

is unnecessary when the context commands a certain

interpretation.

Nor does looking to the term “liability” in section 733.702(4)(b)

refute the pay-money interpretation of liable in 733.710. Correctly,

the majority interprets “liability” in section 733.702(4)(b) as

meaning something different than pay-money liability but finds “no

reason” why “liable” should be read differently between the statutes.

Again, context is key. Section 733.710 focuses on liability of the

estate and its proxies for claims against the decedent, implicating

only pay-money liability. See § 733.710, Fla. Stat. (“[n]either the

decedent’s estate, the personal representative . . . nor the

beneficiaries shall be liable.”). On the other hand, section 733.702
- 34 -
focuses not on the liability of parties, but on causes of action. See

§ 733.702(1)-(3) (“no claim or demand . . . [n]o cause of action . . .

[a]ny claim.”). A cause of action, of course, may implicate both

breach-of-duty and pay-money liability; the term “liable” in section

733.702(4)(b) reflects that context. The terms’ contexts provide the

“reason” for the different meanings of the term “liable.”

Where the majority does look specifically to section 733.710,

the argument is unpersuasive. It argues that rather than using the

phrase “for any claim or cause of action against the decedent,” the

Legislature could have named specific examples that would “square

more naturally” with pay-money liability. It is true that there are

numerous ways the statute could better say what it says. But that

notion should not be used to cloud the clear and logical conclusions

of a word’s context.

The estate and its proxies can only be liable for claims against

the decedent in a pay-money sense, and so “liable” in section

733.710 can only refer to one thing. To be clear, had the statute

not been focused on the liability of the estate and its proxies, the

majority’s myriad of arguments would likely prove persuasive.

- 35 -
However, when the statute’s own text so directly compels an

interpretation, such indirect justifications must fail.

At the end of the day, the majority makes much ado about

what the Legislature could have done to better specify pay-money

liability. In the same way that the majority takes issue with relying

on legislative inaction, I take issue with relying so heavily on how

the Legislature could have written a statute. See majority op. at

22-24. When the words of the statute so obviate any need for

clarification, it is easy to imagine that the Legislature felt that extra

explanation was unnecessary. For these reasons, I would hold that

the term “liable” in section 733.710 refers to pay-money liability,

that sections 733.702 and 733.710 do not bar suit against Morton’s

estate, and accordingly that suit may be brought against LBC under

a theory of vicarious liability.

Application for Review of the Decision of the District Court of Appeal
Certified Conflict of Decisions/Direct Conflict of Decisions

First District – Case No. 1D20-901

(Escambia County)

Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida; and
Coy H. Browning of Browning Law Firm, P.A., Fort Walton Beach,
Florida,

- 36 -
for Petitioners

Charles Wiggins and Terrie L. Didier of Beggs & Lane, RLLP,
Pensacola, Florida,

for Respondents

John S. Mills of Bishop & Mills, PLLC, Jacksonville, Florida, and
Courtney Brewer of Bishop & Mills, PLLC, Tallahassee, Florida,

for Amici Curiae Probate Attorneys, Sean F. Bogle, John P.
Cole, Robert D. Hines, Matthew H. Hinson, Christopher D.
Russo, and Kathryn E. Stanfill

Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm
Beach, Florida,

for Amicus Curiae Florida Justice Association

- 37 -