[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 20-14565 ____________________

ELKIN KING, Plaintiff-Appellant, versus FORREST KING, JR.,

Defendant-Appellee.

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Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:18-cv-01427-BJD-MCR ____________________

Before WILSON, BRANCH, and TJOFLAT, Circuit Judges. USCA11 Case: 20-14565 Document: 34-1 Date Filed: 05/23/2023 Page: 2 of 11

2 Opinion of the Court 20-14565

PER CURIAM: Elkin King (“Elkin”) brought a diversity suit 1 against his for- mer stepfather, Forrest King, Jr. (“Forrest”), alleging that Forrest owed him a fiduciary duty to disclose the existence of certain Set- tlement Funds arising from the wrongful death of Elkin’s biological father. We previously certified three questions to the Supreme Court of Georgia regarding Elkin’s breach of fiduciary duty for fail- ure to disclose claim. With the benefit of their response, we now vacate the District Court’s grant of summary judgment to Forrest on the failure to disclose claim and remand the matter for further proceedings. I. The facts of this case, as reproduced from our previous opin- ion certifying questions to the Supreme Court of Georgia, are as follows: On September 6, 1985, Elkin’s biological fa- ther, Elkin Simpson, Sr., was killed in a plane crash. Elkin, then named Elkin Simpson, Jr., was approxi- mately seven years old. At the time of his death, Elkin Simpson, Sr., was in the process of divorcing Elkin’s mother, Peggy, but a final divorce decree had not yet been entered. See Simpson v. King, 383 S.E.2d 120, 121 (Ga. 1989) (further describing Elkin Simpson, Sr.’s marital and relationship status at the time of his

1 See 28 U.S.C. § 1332. USCA11 Case: 20-14565 Document: 34-1 Date Filed: 05/23/2023 Page: 3 of 11

20-14565 Opinion of the Court 3

death). Accordingly, Peggy filed a wrongful death suit against the airline company as a surviving spouse on behalf of herself and Elkin. See O.C.G.A. § 51-4-2 (1991). In 1989, when Elkin was approximately eleven, Peggy and the airline company reached a set- tlement agreement from which at least $200,000 was set aside for Elkin’s benefit (“the Settlement Funds”). Peggy’s attorney, Glover McGhee, suggested that the Settlement Funds should be placed in an account in her then-husband Forrest’s name. Peggy agreed, and so the Settlement Funds check was made out to both Peggy and Forrest on behalf of Elkin. Forrest then placed the Settlement Funds in a separate account en- titled “Elkin’s Account with Custodian of Forrest King” at Charles Schwab in Atlanta, Georgia. The parties dispute whether Peggy was also a party to the account. There is no evidence that a formal, written trust governing the use of these Settlemen