Wiggins v. Estate of Wright

• Citation: 850 So.2d 444
• Decision Date: 22 May 2003
• Docket Number: No. SC01-1713.,SC01-1713.
• Parties: Brittany WIGGINS, etc., et al., Petitioners, v. ESTATE OF April Brown WRIGHT, Respondent.
• Court: United States State Supreme Court of Florida

850 So.2d 444

Brittany WIGGINS, etc., et al., Petitioners, v. ESTATE OF April Brown WRIGHT, Respondent.

No. SC01-1713.

Supreme Court of Florida.

May 22, 2003.

Rehearing Denied July 16, 2003.

Linda L. Schwichtenberg, Orlando, FL, for Petitioners.

Jackson O. Brownlee 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). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Because we agree with Judge Sawaya's dissenting opinion in Wiggins concerning the method of allocating attorneys' fees to the attorneys representing separate beneficiaries in a wrongful death action, we quash the decision of the Fifth District Court of Appeal.

PROCEEDINGS TO DATE

Upon April Wright's death, she was survived by her spouse, Walter C. Wright, two minor children from that marriage, and her two minor children from a previous marriage. See Wiggins v. Estate of Wright, 786 So.2d 1247, 1248 (Fla. 5th DCA 2001)

. As the "potential personal representative" of April's estate, Walter retained attorney Jack Nichols on a contingency fee basis to institute a wrongful death claim on behalf of April's survivors and her estate, against the hospital where April died. See id. Once he was appointed as the personal representative, Walter signed a new retainer agreement with Nichols, both in his capacity as the parent of his two minor children who survived April's death, and as the surviving spouse and personal representative of April's estate. See id. At the same time, however, April's two other surviving minor children from her prior marriage retained attorney Linda L. Schwichtenberg as their counsel to look after their interests as surviving beneficiaries in the wrongful death claim. See id.

Thereafter, Nichols negotiated a settlement of the estate's claim with the hospital, and the settlement was approved by the trial court and all parties, including the two minor children from the prior marriage represented by Schwichtenberg. See id. After the settlement was approved and paid by the hospital, Nichols proposed a distribution plan for the proceeds to be distributed that favored Walter Wright and his two children, and did not compensate the children from the prior marriage on a par with the other children. See id. Schwichtenberg, acting on behalf of her clients, opposed this plan. Upon hearing, the trial court rejected Nichols' plan, and instead ordered that the survivors receive equal shares of the settlement proceeds. See id. at 1249. Thereafter, Nichols sought and the trial court awarded Nichols a full fee based upon his agreement with Wright and calculated as a percentage of the entire settlement paid to the estate for all the beneficiaries. See id. at 1248. Schwichtenberg also applied to the trial court for a fee under her contingency contract with the children from the prior marriage, claiming that a portion of the fee awarded to Nichols should be awarded to her to satisfy her clients' obligations to pay her. See id. However, the trial court determined that Schwichtenberg's fee should come solely from her clients out of their net share of the proceeds as reduced by the payment of Nichols' fee. See id.

On review of the trial court's decision on attorney's fees, the Fifth District Court of Appeal affirmed the trial court's ruling, holding:

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.

Id. at 1249. The district court rejected the claim of Schwichtenberg and her clients that they should not have to pay fees to both the estate lawyer and their own lawyer in the manner determined by the trial court. Judge Sawaya dissented, pointing out that Schwichtenberg had continuously represented her clients' interests in the wrongful death action, and had successfully objected to Nichols' proposed settlement scheme. See Wiggins, 786 So.2d at 1252 (Sawaya, J., dissenting)

.

Following the Fifth District's affirmance, Schwichtenberg's clients, the petitioners, now seek review in this Court, citing conflict between the Fifth District's decision and cases decided by the Fourth District that were relied upon by Judge Sawaya in his dissent.

WRONGFUL DEATH CLAIMS

Florida's wrongful death statute focuses on the loss suffered by survivors of the decedent and creates a separate entitlement to damages for each survivor. However, the survivors cannot bring separate legal actions. Rather, by statute, the personal representative is the only party with standing to bring a wrongful death suit on behalf of the estate and the survivors. See § 768.20, Fla. Stat. (1999). Under the legal procedure set out in the wrongful death statute, all survivors and claimants are required to participate in a single legal action to be filed by the estate on behalf of all the survivors. Upon trial, damages are to be apportioned to each survivor in the verdict form.

Catapane

In the case of In re Estate of Catapane, 759 So.2d 9 (Fla. 4th DCA 2000), the decedent's survivors in a wrongful death action included his wife, who was appointed the personal representative, and a daughter, Nadine, from a prior marriage. See id. at 10. The wife hired counsel to pursue a wrongful death claim for the estate and all of the survivors, while the surviving daughter, Nadine, hired separate counsel to represent her interests in the claim. See id. The law firms each had a one-third contingency fee agreement with their clients that provided for attorney's fees in the amount of one-third of any recovery obtained for the client. See id.

When the uninsured motorist insurer offered its limits of $100,000 and the liability insurer offered its limits of $30,000 to settle the claim, it became unnecessary for an action to be prosecuted further. See id. Thereafter, the trial court determined an apportionment of the recovery so that the wife would get $35,000 and Nadine would receive $95,000 of the settlement proceeds. See id. The trial court further determined that the two separate law firms involved would each receive one-third of their clients' separate recoveries, respectively, based upon their individual fee agreements. See id.

The wife's attorneys appealed, claiming that as counsel for the estate, they were entitled to their full one-third contingency fee on the entire settlement paid to the estate, including the recovery for Nadine. See id. Upon review, the Fourth District agreed in part with this claim, but held that the wife's counsel's fee recovery must be adjusted to allow a share of the fee for the daughter's counsel:

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 entitled, as counsel for the personal representative, to be compensated out of the total recovery of $130,000. Because of their conflict of interest on damages, however, their fee which will come out of Nadine's portion of the recovery shall be reduced by an amount necessary to compensate Lytal, Reiter for representing Nadine on damages. That fee would be small compared to David & French's fee, and the total of Nadine's fees cannot exceed a fee authorized by rule 4-1.5.

See id. at 11-12 (footnotes omitted). The district court sent the case back to the trial court for a hearing to determine fees based upon these instructions.

We agree with the Fourth District's Catapane analysis, and conclude that the Wiggins opinion may require the non-personal representative survivors to pay a fee in excess of those allowed by rule 4-1.5 of the Rules Regulating the Florida Bar¹ and ignores the potential conflict of interest that is created when separate survivors hire separate counsel to prosecute a claim for the damages that each is entitled to under the statute. See § 768.22, Fla. Stat. (1999) (damages for each survivor to be stated separately). On the other hand, the Fourth District's attorneys' fees scheme as set forth in Catapane acknowledges the conflict and allocates attorneys' fees from the estate (and ultimately all parties) once, and distributes them proportionately by the amount of work that the attorneys do on (1) the lawsuit brought on behalf of the estate, and (2) the apportionment proceedings.²

In many instances the survivors entitled to compensation in a wrongful death action may be in agreement both as to prosecuting a wrongful death claim, and in the distribution of any recovery. When this is the case, this procedure will work well, especially when all of the survivors have a commonality of interest and a single attorney can represent those interests. This may often be the case, for example, when a parent-spouse is killed and the surviving spouse and children are represented by the...