Wiggins v. Estate of Wright, 5D00-2878.
| Decision Date | 15 June 2001 |
| Docket Number | No. 5D00-2878.,5D00-2878. |
| Citation | 786 So.2d 1247 |
| Parties | Brittany and Marquis WIGGINS, Minors, Appellants, v. The ESTATE OF April Brown WRIGHT, Appellee. |
| Court | Florida District Court of Appeals |
Linda L. Schwichtenberg of Linda L. Schwichtenberg, P.A., Orlando, for Appellants.
Jackson O. Brownlee, of Beusse, Brownlee, Bowdoin & Wolter, P.A., Orlando, for Appellee.
Walter C. Wright was the surviving spouse of April Wright. They had two children. April also had two minor children by a previous marriage. While Walter was out of town on business (he was a truck driver), April died while admitted to Orlando Regional Medical Center. When Walter returned, he discovered that an autopsy had been waived by other family members. As "potential personal representative" of his wife's estate, he retained attorney Nichols on a contingency fee basis Once he was appointed personal representative, he signed a new retainer agreement individually and as the parent of his two minor children and as personal representative of the estate. The other minor children retained Schwichtenberg as separate counsel.
Through his efforts in obtaining an autopsy and negotiations with the hospital, Nichols was able to settle the malpractice claim for over a million dollars. The court and all parties, including the attorney for the minor children of the deceased's first marriage, approved the settlement. Nichols was awarded his fee pursuant to his contingency contract by the court. Schwichtenberg also applied for a fee pursuant to her contingency contract with the other minor children, arguing, in effect, that a portion of the fee earned by Nichols should be used to satisfy her clients' obligation to her. Although the court determined that she was entitled to a fee, it held such fee should come from her clients and not the estate and that she should not share in Nichols' fee. This appeal followed and we affirm.
Appellant takes the position that Nichols is not entitled to any fee out of her clients' share of the estate because he did not represent them. But Nichols is taking nothing from any portion of the estate that Schwichtenberg's clients are entitled to share. Her clients are entitled to share only in the assets of the estate after legal expenses have been paid.
Nichols represented the estate and was hired by the only one having the authority to bind the estate: the personal representative. Through Nichols' efforts, and through his efforts alone, the estate was infused with over a million dollars. The estate had an obligation to pay Nichols for his successful efforts in obtaining the settlement pursuant to its contract. The beneficiaries of the estate, consisting of the surviving spouse and the four children, were entitled to share in the estate only after all estate debts were paid.
Although Nichols met the conditions for his fee under his contingency contract with the estate as soon as the settlement was approved and the proceeds were paid over to the estate, as is not uncommon in such cases, he continued his representation by proposing a distribution plan for the estate proceeds to the court. There was no additional fee contemplated for this service.1 The court rejected the plan offered by Nichols and instead ordered that the estate proceeds be divided equally among all beneficiaries.2
Appellant relies most heavily on In re Estate of Catapane, 759 So.2d 9 (Fla. 4th DCA 2000). Under facts similar to the case at issue, the Fourth District held that the estate's attorney who had successfully recovered in a wrongful death action was not entitled to his full contingency fee because of the conflict among claimants to the estate's proceeds. Because we find that Nichols represented the estate, and not the individual beneficiaries thereto, in handling the wrongful death claim, we agree with the trial court that Nichols earned his contingency fee before any potential conflict arose and is indeed entitled to the total fee agreed to by the estate. We also agree with the lower court that although Schwichtenberg performed a valuable service to her clients by assuring them a greater share of the distribution than they would have otherwise received, this was a service personal to such beneficiaries and should be paid for by them. We believe that is the intent of section 768.26, Florida Statutes:
Attorneys' 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 or the estate shall be paid from their awards.
Clearly this statute contemplates that the expenses of litigation shall be paid before there is a distribution to anyone and that services performed for an individual beneficiary must be paid by that beneficiary. That is what the lower court ruled and we affirm.
The nature of wrongful death actions and the particular facts of this case compel me to respectfully dissent.
Under the Wrongful Death Act [the "Act"], a wrongful death action may be brought only by the personal representative for the benefit of all of the decedent's survivors and estate. § 768.20, Fla.Stat. (1999); Williams v. Infinity Ins. Co., 745 So.2d 573 (Fla. 5th DCA 1999); Continental Nat'l Bank v. Brill, 636 So.2d 782 (Fla. 3d DCA 1994). As the courts have repeatedly held, the purpose of requiring the action to be brought by the personal representative is to eliminate the possibility of a multiplicity of suits against the wrongdoer, to eliminate the potential for competing beneficiaries to race to judgment, and to prevent preferential treatment of one or more beneficiaries in the disposition of their claims. See Hess v. Hess, 758 So.2d 1203 (Fla. 4th DCA 2000)
Broward County, Inc., 611 So.2d 43 (Fla. 4th DCA 1992); see also Ding v. Jones, 667 So.2d 894, 897 (Fla. 2d DCA 1996) ().
In order to fulfill this responsibility, the personal representative may hire lawyers to represent him or her in the action and enter into settlement agreements on behalf of the estate and survivors. Pearson v. DeLamerens, 656 So.2d 217 (Fla. 3d DCA 1995). Despite the responsibilities and powers of the personal representative, the personal representative is a nominal party to the action; the estate and survivors are the real parties in interest. Morgan v. American Bankers Life Assur. Co. of Florida, 605 So.2d 104, 104 (Fla. 3d DCA 1992) ( ) (quoting § 768.20, Fla. Stat. (1991)); see also City of Pompano Beach v. T.H.E. Ins. Co., 709 So.2d 603, 605 (Fla. 4th DCA 1998)
() (citation omitted); Ding, 667 So.2d at 895 ().
approved, 620 So.2d 161 (Fla.1993)). Moreover, I must emphasize the Florida Supreme Court's continued adherence to its determination that the Act creates an independent cause of action in the statutory beneficiaries. Nissan Motor Co. v. Phlieger, 508 So.2d 713 (Fla. 1987); Variety Children's Hosp. v. Perkins, 445 So.2d 1010 (Fla.1983). This has been true throughout the history of the Act in Florida, despite the variety of revisions and re-enactments it has undergone. See, e.g., Martin v. United Sec. Servs., Inc., 314 So.2d 765 (Fla.1975); Stokes v. Liberty Mut. Ins. Co., 213 So.2d 695 (Fla. 1968); Shiver v. Sessions, 80 So.2d 905 (Fla.1955); Epps v. Railway Express Agency, 40 So.2d 131 (Fla.1949); Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213 (1945); Florida East Coast Ry. Co. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933); Florida Cent. & P.R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338 (1899); Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894).
Thus the personal representative of a decedent's estate is a fiduciary who is required to use the authority conferred upon him or her for the best interests of the interested persons who are the survivors entitled to recover under the Act. § 733.602(1), Fla.Stat. (1997); Guadalupe v. Peterson, 779 So.2d 494 (Fla. 2d DCA 2000); In re Estate of Wiggins, 729 So.2d 523 (Fla. 4th DCA 1999); Pearson. Where the personal representative receives a nonspecific settlement offer in a wrongful death action, he or she is obligated to apportion the proceeds between the estate and the survivors in a reasonable and equitable manner. See Guadalupe; Wiggins; Continental Nat'l Bank,636 So.2d at 784; University Med. Ctr. v. Zeiler, 625 So.2d 120 (Fla. 5th DCA 1993). When asked to apportion the proceeds of a wrongful death settlement, a court must look to the statute to identify both the "survivors" and the recoverable damages. See §§ 768.18(1), 768.21,...
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...Statutes generally address the question of fees due to the personal representative's attorney. See, e.g., Wiggins v. Estate of Wright, 786 So.2d 1247, 1249 (Fla. 5th DCA 2001) (discussing the allocation of fees among the personal representative's attorney and attorneys hired by other benefi......
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Wiggins v. Estate of Wright
...of Beusse, Brownlee, Bowdoin & Wolter, P.A., Orlando, FL, for Respondent. ANSTEAD, C.J. We have for review Wiggins v. Estate of Wright, 786 So.2d 1247 (Fla. 5th DCA 2001), which expressly and directly conflicts with the decision in In re Estate of Catapane, 759 So.2d 9 (Fla. 4th DCA 2000). ......