Posts Tagged ‘bedsores’

Florida Man’s Death May Lead To Claim Against Fiduciary

MARCH 10, 1997 VOLUME 4, NUMBER 36

John Montañez and Ouida Ray apparently had a stormy relationship. They were married in Florida in 1955 and their daughter Prudence was born later that year. Montañez and Ray divorced in 1956. In 1960 they remarried, and a second daughter, Rhoda, was born the next year. By February, 1961, Montañez and Ray were separated, never to have any significant contact again.

Although Montañez and Ray never divorced, Ray married another man in 1971. That marriage also ended in divorce.

Montañez was in the merchant marine, and so had little contact with his wife or two daughters. In fact, though he spent the last year of his life in a nursing home in Florida, none of his family even knew he was in the same state, much less visited him. He died in May, 1994, from septicemia, pneumonia and deeply infected bedsores.

During the year he spent in the Snapper Creek Nursing Home, Montañez had a court-appointed guardian and conservator, a private fiduciary organization known as Comprehensive Personal Care Services, Inc. After his death, Comprehensive was appointed Personal Representative of his estate. Snapper Creek Nursing Home promptly filed a claim for $20,696.23 against the estate, seeking payment for the care provided in his last months of life. Most of that claim arose from the costs of treating Montañez’ advanced bedsores.

Comprehensive objected to Snapper Creek’s bill, but quickly negotiated a settlement under which the estate would pay $15,000 and neither party would pursue any other claims against the other. Meanwhile, an heir-locator service found Ouida Ray, Prudence and Rhoda, and they became involved in the negotiations.

While Ray and her daughter Rhoda agreed to the proposed settlement, Prudence was not. She pointed out that the settlement would preclude her from bringing any further action against either Snapper Creek or Comprehensive, even if she could show negligence in the care of Montañez or the supervision of his guardian and conservator. The Florida court overruled her objections, and approved the settlement. It also authorized payment of $43,750 in attorney’s fees to Comprehensive.

At the same time, Ray alleged that she was entitled to a share of the estate as Montañez’ surviving spouse. Over the objections of Prudence, the trial court awarded her the widow’s share of the estate.

On appeal, the Florida Court of Appeals reversed. Noting that Comprehensive was not even qualified to serve as Personal Representative under Florida law, the Court of Appeals also saw an inherent conflict of interest in the settlement. Noting that “the Decedent’s death from septicemia and grossly infected bedsores raises the possibility that viable negligence and malpractice actions may exist by the estate against both Comprehensive and Snapper Creek,” the Court voided the settlement and ordered the appointment of a new Personal Representative.

The appellate court also observed that the Personal Representative of an estate has a duty to heirs and creditors not to settle litigation to the disadvantage of the estate. More fundamentally, the Personal Representative in this case (as a potential defendant) had a conflict of interest which made it impossible to settle the litigation fairly. In addition to voiding the settlement, the Court reversed the award of attorney’s fees.

On the subject of Ray’s right to a widow’s share, the Court of Appeals found that her subsequent remarriage (and divorce) barred her from making any claim. The opinion noted that when she remarried in 1971, she claimed on her marriage application that she had divorced Montañez in 1965, and she could not now claim otherwise. Estate of Montañez, Fla. Ct. of Appeals, February 12, 1997.

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