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Florida Second DCA rules on proper division of fees between attorneys for estate and attorneys for statutory survivors in wrongful death case

On July 7, 2017, in Heiston v. Schwartz & Zonas, LLP, No. 2D16-3417, the Florida Second DCA reversed a trial court’s order granting all of the attorney’s fees in a wrongful death settlement to the law firm representing the decedent’s statutory survivors under the Wrongful Death Act and denying any fees to the law firm that represented the personal representative of the estate. The law firm that represented the statutory survivors had successfully argued before the trial court that they were entitled to most of the fee because the defendants had tendered the insurance limits to them before the personal representative’s law firm, Morgan & Morgan, had even become involved in the case. The trial court was so convinced of the merits of the argument that the entire fee was awarded to the statutory survivors’ law firm despite the fact that they had only asked for 80% of the fee. On appeal, the Second DCA noted that the personal representative is the only party with the authority to prosecute and settle wrongful death claims and the trial court never expressly considered the rules set forth by the Florida Supreme Court in Wiggins v. Estate of Wright, 850 So. 2d 444, 447 (Fla. 2003). In Wiggins v. Estate of Wright, the Florida Supreme Court held that a trial court must determine the attorneys' fee awards by compensating the personal representative's attorney out of the total settlement proceeds, reduced by the amount necessary to reasonably compensate the other survivors' attorneys for their services in representing those survivors in the proceedings. Because the trial court had not cited to Wiggins v. Estate of Wrightor otherwise explained the basis for its ruling, the Second DCA reversed the trial court’s decision and remanded the case back to the court with instructions to first award the full contingent fee to Morgan & Morgan and then reduce the award “in a manner commensurate with the value, if any” of the services of the statutory survivors’ law firm.