In short: In Melchoire v. Boetzel (Fla. 5th DCA 2023), a son serving as personal representative of both his parents’ estates won a little over $1 million after a speeding driver killed them. The defendants appealed over the estates’ lawyer’s arguments. The court affirmed; a concurrence called the comments “obviously improper” but found affirmance just because they may have hurt the estates more than the defense.
When a parent dies in a crash, the personal representative becomes the plaintiff. This case shows both the role and the risk of overreaching at trial.
The Facts
A driver going about 40 miles per hour over the speed limit struck and killed a married couple in Citrus County. Their son, as personal representative of both estates, sued. The jury awarded the estates a little over $1 million collectively. The defendants appealed.
The Decision
The Fifth District affirmed without opinion on December 1, 2023 (No. 5D22-0273). Judge Makar concurred in writing. He described the estates’ lawyer’s repeated comments in jury selection and closing as "obviously improper," but reasoned that the question of prejudice was tricky, because the misconduct may have alienated jurors and produced a smaller award than counsel sought. On balance, affirmance was a just result.
The Probate Side of Wrongful Death
- In Florida, the personal representative brings the wrongful death action for the estate and the survivors (§ 768.20).
- The PR must be properly appointed and qualified, which means opening probate.
- Recoveries are allocated between the estate and statutory survivors, and settlements involving minors may need court approval.
Lessons
- Open probate promptly when a death may lead to a lawsuit.
- The PR owes duties to all beneficiaries and survivors in how the case is run.
- Trial tactics have consequences, and a verdict can be lost on appeal if improper argument prejudices the other side.
Source: Melchoire v. Boetzel, No. 5D22-0273 (Fla. 5th DCA Dec. 1, 2023).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Florida Fifth District Court of Appeal | Probate Appeal Oral Argument
Go Deeper
Frequently Asked Questions
Who brings a wrongful death lawsuit in Florida?
The personal representative of the decedent’s estate under § 768.20.
Do I need to open probate to file a wrongful death suit?
Yes. A personal representative must be appointed by the probate court.
Can improper closing argument reverse a verdict?
It can, if it prejudiced the other side. In Melchoire, the court affirmed despite improper comments.
What happened in Melchoire v. Boetzel?
The Fifth District affirmed the roughly $1 million verdict for the estates in 2023.
Talk to a Florida probate lawyer
Weidner Law, P.A. handles Florida probate litigation and appeals from St. Petersburg. If you need a probate appeal lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
