2012 Florida Statutes
Damages for breach of trust.
Damages for breach of trust.
736.1002 Damages for breach of trust.—
(1) A trustee who commits a breach of trust is liable for the greater of:
(a) The amount required to restore the value of the trust property and trust distributions to what they would have been if the breach had not occurred, including lost income, capital gain, or appreciation that would have resulted from proper administration; or
(b) The profit the trustee made by reason of the breach.
(2) Except as otherwise provided in this subsection, if more than one person, including a trustee or trustees, is liable to the beneficiaries for a breach of trust, each liable person is entitled to pro rata contribution from the other person or persons. A person is not entitled to contribution if the person committed the breach of trust in bad faith. A person who received a benefit from the breach of trust is not entitled to contribution from another person to the extent of the benefit received.
(3) In determining the pro rata shares of liable persons in the entire liability for a breach of trust:
(a) Their relative degrees of fault shall be the basis for allocation of liability.
(b) If equity requires, the collective liability of some as a group shall constitute a single share.
(c) Principles of equity applicable to contribution generally shall apply.
(4) The right of contribution shall be enforced as follows:
(a) Contribution may be enforced by separate action, whether or not judgment has been entered in an action against two or more liable persons for the same breach of trust.
(b) When a judgment has been entered in an action against two or more liable persons for the same breach of trust, contribution may be enforced in that action by judgment in favor of one judgment defendant against any other judgment defendants by motion upon notice to all parties to the action.
(c) If there is a judgment for breach of trust against the liable person seeking contribution, any separate action by that person to enforce contribution must be commenced within 1 year after the judgment has become final by lapse of time for appeal or after appellate review.
(d) If there is no judgment for the breach of trust against the liable person seeking contribution, the person’s right of contribution is barred unless the person has:
1. Discharged by payment the common liability within the period of the statute of limitations applicable to the beneficiary’s right of action against the liable person and the person has commenced an action for contribution within 1 year after payment, or
2. Agreed, while action is pending against the liable person, to discharge the common liability and has within 1 year after the agreement paid the liability and commenced the person’s action for contribution.
(5) The beneficiary’s recovery of a judgment for breach of trust against one liable person does not of itself discharge other liable persons from liability for the breach of trust unless the judgment is satisfied. The satisfaction of the judgment does not impair any right of contribution.
(6) The judgment of the court in determining the liability of several defendants to the beneficiary for breach of trust is binding upon such defendants in determining the right of such defendants to contribution.
(7) Subsection (2) applies to all causes of action for breach of trust pending on July 1, 2007, under which causes of action the right of contribution among persons jointly and severally liable is involved and to all causes of action filed after July 1, 2007.
History.—s. 10, ch. 2006-217.