May v. Illinois National Ins. Co.

[PUBLISH]

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IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 28, 2001
________________________
THOMAS K. KAHN
CLERK
No. 98-2580
________________________
D.C. Docket No. 97-00110-3-CV-RV

DAVID R. MAY,
as Administrator Ad Litem of the Estate of
OSCAR T. BRADLEY, deceased,

Plaintiff-Appellant,

versus

ILLINOIS NATIONAL INSURANCE COMPANY,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 28, 2001)

Before ANDERSON, Chief Judge, RONEY, Circuit Judge, and COOK*, District
Judge.

PER CURIAM:

___________________________________
*
Honorable Julian Abele Cook, Jr., U.S. District Judge for the Eastern District of Michigan,
sitting by designation.
 On September 29, 1999, we issued an opinion in this case in which we asked

the Florida Supreme Court to answer certified questions regarding the interpretation

of Florida law concerning the requirements for filing a written statement of a claim

in a state probate proceeding within statutorily prescribed time periods. See May v.

Illinois Nat’l Ins. Co.,190 F.3d 1200(11th Cir. 1999). The questions were as follows:

WHETHER SECTION 733.702 AND SECTION 733.710 OF THE
FLORIDA STATUTES CONSIDERED SEPARATELY AND/OR
TOGETHER OPERATE AS STATUTES OF NONCLAIM SO THAT
IF NO STATUTORY EXCEPTION EXISTS, CLAIMS NOT
PRESENTED WITHIN THE DESIGNATED TIME PERIOD ARE
NOT BINDING ON THE ESTATE, OR DO THEY ACT AS
STATUTES OF LIMITATIONS WHICH MUST BE PLEADED AND
PROVED AS AFFIRMATIVE DEFENSES IN ORDER TO AVOID
WAIVER.

In its response, the Florida Supreme Court held that: (1) section 733.702(3),

Florida Statutes (1991) is a statute of limitations that bars untimely claims even if the

issue of timeliness is not asserted in an objection in the probate proceedings, but that

such limitation may be extended by the probate court based on fraud, estoppel, or

insufficient notice; (2) section 733.710 Florida Statutes (1991), is a jurisdictional

statute of nonclaim that is not subject to waiver or extension in the probate

proceedings; and (3) that a petition for the appointment of an administrator ad litem

and a counter-petition for administration constitute a statement of claim in compliance

___________________________________
*
Honorable Julian Abele Cook, Jr., U.S. District Judge for the Eastern District of Michigan,
sitting by designation. 2
with the essential requirements of section 733.703 and Fla. Prob. R. 5.490(e). See

May v. Illinois Nat’l Ins. Co., 771 So.2d 1143, (2000). In light of these conclusions,

the Court held that the filing of the petition and counter-petition “satisfied the

nonclaim period set forth in section 733.710,” but “did not satisfy the limitation period

set forth in section 733.702(1), and we are not aware of any extension or pending

request for extension in any probate court.” Thus the Supreme Court’s decision

effectively bars the claim made against the estate.

The motion of appellant David R. May, as Administrator Ad Litem of the Estate

of Oscar T. Bradley, Deceased, for leave to file a supplemental brief is DENIED. It

alleges the Florida Supreme Court’s opinion “raises the possibility that Prockup can

demonstrate compliance with section 733.702 if the probate court extends the time for

filing claims.” Under the Florida Supreme Court’s opinion, however, an extension

could be granted only on facts showing “fraud, estoppel or insufficient notice.” Not

only has no such extension request been made to the district court, but nothing in the

papers filed in this Court or the district court asserts any facts that would support such

an extension.

Accordingly, the summary judgment for Illinois National Insurance Company,

based on the Florida Supreme Court’s analysis, is AFFIRMED.

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