In re Estate of Catapane

• Decision Date: 08 March 2000
• Docket Number: No. 4D98-2475.,4D98-2475.
• Citation: 759 So.2d 9
• Parties: In re ESTATE OF Richard C. CATAPANE, Deceased. Dorothy Catapane, as Personal Representative of the Estate of Richard C. Catapane, and the Law Offices of David and French, P.A., as counsel for the Personal Representative of the Estate of Richard C. Catapane, Appellants, v. Nadine Catapane, minor survivor, By and Through her natural mother, Christina Kuchar, Appellee.
• Court: Florida District Court of Appeals

759 So.2d 9

In re ESTATE OF Richard C. CATAPANE, Deceased.

Dorothy Catapane, as Personal Representative of the Estate of Richard C. Catapane, and the Law Offices of David and French, P.A., as counsel for the Personal Representative of the Estate of Richard C. Catapane, Appellants, v. Nadine Catapane, minor survivor, By and Through her natural mother, Christina Kuchar, Appellee.

No. 4D98-2475.

District Court of Appeal of Florida, Fourth District.

March 8, 2000.

Rehearing Denied June 2, 2000.

Andrew Merlo of Steven Serle, P.A., and Ronald A. David of David & French, P.A., Boca Raton, for appellants.

Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, West Palm Beach, for appellee.

KLEIN, J.

This appeal arises out of the settlement of a wrongful death action, and the dispute involves the allocation of attorney's fees between counsel for the personal representative, who was the decedent's wife, and counsel for the decedent's daughter by a prior marriage.

Richard Catapane died in an automobile accident, and the survivors included his wife, Dorothy, who was appointed personal representative, and his daughter from a prior marriage, Nadine. Dorothy, as personal representative, retained the David & French firm to pursue a wrongful death claim for all of the survivors. Nadine retained the Lytal, Reiter firm to represent her.

There was limited coverage for the accident and David & French filed a declaratory action, hoping to stack UM coverage, but it was unsuccessful. It was unnecessary for them to file a wrongful death action as the UM insurer offered its limits of $100,000 and the liability insurer offered its limits of $30,000.

The personal representative then sought court approval to settle for $130,000, and for apportionment, recognizing that there was a conflict of interest since Dorothy was both the personal representative and a claimant. The court approved the settlement and determined that Dorothy, as decedent's wife, would receive $35,000, with the remaining $95,000 going to Nadine. At the hearing, the law firms, which each had a one-third contingent fee contract, agreed, because of the limited recovery, to take a thirty percent fee. The court determined that Lytal, Reiter would receive thirty percent of Nadine's $95,000 recovery, and that David & French would receive thirty percent only out of Dorothy's $35,000 recovery.

David & French have appealed, arguing that, as counsel for the personal representative, they are entitled to their full contingent fee on the entire $130,000 recovery. Lytal, Reiter take the position that David & French are not entitled to any fee on the amount going to Nadine. We do not agree with either of their positions.

We first dispose of Lytal, Reiter's argument, which is grounded on the proposition that David & French is not entitled to a fee out of Nadine's recovery because David & French did not have a contingent fee contract with Nadine.

An action under Florida's Wrongful Death Act "shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages [under the Act] caused by the injury resulting in death." See § 768.20, Fla. Stat. The personal representative is also the individual having the power to settle such actions. See Pearson v. DeLamerens, 656 So.2d 217, 220 (Fla. 3d DCA 1995)

. Concomitant with those responsibilities is the personal representative's power to hire counsel. See § 733.612(19), Fla. Stat. Section 768.26 provides for payment of counsel selected by the personal representative:

Attorney's fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor of the estate shall be paid from their awards.

One of the purposes of our present wrongful death act, which was enacted in 1972, was to "eliminate the multiplicity of suits that resulted from each survivor bringing an independent action," which could occur under the prior act. Ding v. Jones, 667 So.2d 894, 897 (Fla. 2d DCA 1996). The Act obviously contemplates that one lawyer, selected by the personal representative, will pursue the tort claim for the benefit of the survivors who are entitled to recover damages. The only client David & French were required to have a contingent fee contract with, under the Act, was the personal representative.

Lytal, Reiter rely on Perez v. George, Hartz, Lundeen, Flagg & Fulmer, 662 So.2d 361 (Fla. 3d DCA 1995). Perez is distinguishable, however, because in that case the two survivors negotiated settlements before a personal representative was ever appointed. The facts were thus different from those in the present case, in which there was a personal representative. Adams v. Montgomery, Searcy & Denney, P.A., 555 So.2d 957 (Fla. 4th DCA 1990), is also distinguishable. Our opinion in Adams does not reflect whether there had been a personal representative appointed; however, counsel for the widow had refused to represent a daughter by a prior marriage on the ground that her claim was worthless. We held, under those circumstances, that counsel obtaining the settlement was not entitled to a fee out of the recovery obtained by the daughter.

We thus agree with David & French that under the Act they are entitled to be compensated, as counsel for the personal representative, out of the entire $130,000 recovery. We next address their contention that they are entitled to their full thirty percent.

The maximum contingent fee permitted by rule 4-1.5, Rules Regulating the Florida Bar, in this case, is one-third of the recovery. That fee, of course, contemplates that the lawyer represents the client on both liability and damages. If David & French were allowed the maximum fee under rule 4-1.5 while their conflict of interest required Nadine to hire her own counsel on damages, Nadine would be exposed to having to pay a fee in excess of that allowed by rule 4-1.5. Because David & French could not represent Nadine on damages, they are not entitled to their full fee on Nadine's portion of the recovery.

Judge Blackwell White, in her dissent, suggests that this interpretation of the Act renders it "meaningless"; however, her interpretation would expose Nadine to having to pay a maximum contingent fee allowed by the Florida Bar to counsel for the personal representative, where that counsel cannot ethically represent her on the issue of damages because of a conflict of interest. It would also expose her to having to pay a fee in excess of that allowed by our ethical rules, and we doubt that the legislature would have intended that. See also Rule 4-1.5(g) ("A division of fee between lawyers who are not in the same firm may be made only if the total fee is reasonable.").

We reverse and remand for the trial court to reconsider the award of attorney's fees to David & French consistent with our holding that they were...