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ELDERLY EXPLOITATION vs CIVIL THEFT

Written by on Mar 1, 2010| Posted in: Estate Litigation

DISTINGUISHING DAMAGES SOUGHT BY FIDUCIARIES AND INDIVIDUALS UNDER FLORIDA STATUTES §415.1111 and §772.11

When trying to decide between which cause of action to file against a person who has committed financial exploitation against or theft from a vulnerable or disabled adult, one must first establish who has been damaged, the vulnerable or disabled adult themselves, or an individual with an expectancy in inheritance or other interest expected from the vulnerable or disabled adult, and whose expectancy or interest was lost or diminished as a result of the exploitation or theft against the vulnerable adult.

Pursuant to Fla. Stat. §415.1111, “A vulnerable adult who has been abused, neglected, or exploited . . . has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.” [reproduced below] The action may only be brought by the vulnerable adult, or that person’s guardian, by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian, or by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect, or exploitation. This cause of action allows for punitive damages.

F.S. §415.1111  Civil actions.–A vulnerable adult who has been abused, neglected, or exploited as specified in this chapter has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation. The action may be brought by the vulnerable adult, or that person’s guardian, by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian, or by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect, or exploitation. The action may be brought in any court of competent jurisdiction to enforce such action and to recover actual and punitive damages for any deprivation of or infringement on the rights of a vulnerable adult. A party who prevails in any such action may be entitled to recover reasonable attorney’s fees, costs of the action, and damages. The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a vulnerable adult. Notwithstanding the foregoing, any civil action for damages against any licensee or entity who establishes, controls, conducts, manages, or operates a facility licensed under part II of chapter 400 relating to its operation of the licensed facility shall be brought pursuant to s. 400.023, or against any licensee or entity who establishes, controls, conducts, manages, or operates a facility licensed under part I of chapter 429 relating to its operation of the licensed facility shall be brought pursuant to s. 429.29. Such licensee or entity shall not be vicariously liable for the acts or omissions of its employees or agents or any other third party in an action brought under this section.

Another cause of action which would involve damages resulting from the financial exploitation of a vulnerable adult is found under Fla. Stat. §772.11 [reproduced below], otherwise known as the Civil Theft Statute. This cause of action may be brought by any party who was damaged as a result of the exploitation, and further allows for “treble damages” upon proof of proper written demand at least 30 days in advance of filing the claim.  This particular cause of action, allows for threefold, the amount of actual damages, and is not limited to just those parties with the authority to act on behalf of the vulnerable adult, or the vulnerable adult’s estate, but includes any person who has been damaged by the theft from, or financial exploitation of the disabled or vulnerable person.

772.11  Civil remedy for theft or exploitation.

(1)  Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012-812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. Punitive damages may not be awarded under this section. The defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court may not consider the ability of the opposing party to pay such fees and costs. This section does not limit any right to recover attorney’s fees or costs provided under any other law.

(2)  For purposes of a cause of action arising under this section, the term “property” does not include the rights of a patient or a resident or a claim for a violation of such rights.

(3)  This section does not impose civil liability regarding the provision of health care, residential care, long-term care, or custodial care at a licensed facility or care provided by appropriately licensed personnel in any setting in which such personnel are authorized to practice.

(4)  The death of an elderly or disabled person does not cause the court to lose jurisdiction of any claim for relief for theft or exploitation when the victim of the theft or exploitation is an elderly or disabled person.

(5)  In a civil action under this section in which an elderly or disabled person is a party, the elderly or disabled person may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the civil complaint or at any time thereafter.

These distinctions become tricky when an Estate or Trust has been damaged by theft or exploitation and the person appointed as the fiduciary or representative has also been damaged individually.  In this case, you must be certain that the allegations and causes of action clearly distinguish the damages sought under Fla. Stat. §415.1111 and are sought by the Plaintiff ONLY in their capacity as fiduciary, trustee or personal representative, versus a claim under Fla. Stat. §772.11, which can be brought by the Plaintiff in both their fiduciary and individual capacities. But be careful, as you must also make sure, when issuing the initial written demand required thirty days in advance of seeking treble damages under Fla. Stat. § 772.11, that your written demand is clear as to which damages are sought in which capacity.  You MUST distinguish in your 30-day written notice required under Fla. Stat. § 772.11 which damages apply to the fiduciary and which apply to the individual, or a claim for treble damages will fail due to insufficient notice. An easy way to avoid confusion in your written demands and pleadings is to simply submit two separate written demands and allege separate causes of action, one count brought by the Plaintiff as fiduciary, and the second separate count, as an individual, so there is no confusion regarding which damages apply to whom, thereby avoiding dismissal of your action for failure to properly state a cause of action under Fla. Stat.  §772.11.

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