ATTORNEY'S FEES IN WRONGFUL DEATH CASES by Ted Babbitt

ATTORNEY’S FEES IN WRONGFUL DEATH CASES
by Ted Babbitt
Any lawyer who represents a client in a wrongful death suit needs to be
aware of a recent opinion of the Fourth District in In Re: Estate of Richard C.
Catapane, 25 F.L.W. D584 (Fla. 4th DCA, March 8, 2000). That opinion resulted
from an appeal of a trial court’s order apportioning attorney’s fees among counsel
who represented two survivors of the decedent.
The decedent died in an automobile accident survived by his wife who
was also appointed Personal Representative and his daughter from a prior
marriage. There was limited insurance coverage for the accident which caused
the decedent’s death and there was a clear conflict of interest between the two
survivors because, presumably, the total of their combined damages far
exceeded the amount of insurance available. Each survivor hired their own
attorney and each entered into a contingency fee contract with their respective
counsel.
At the time of the apportionment hearing, the trial court awarded each
survivor a proportionate share of the available insurance coverage and
apportioned attorney’s fees to each of their counsel in accordance with their
respective contingency fee contracts. The attorney representing the estate
appealed this order, contending that since he represented the estate he was
entitled to a fee on the entire recovery, not just the portion awarded to his client.

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In light of the clear conflict of interest between the survivors and the legion
of cases decrying interference with an attorney’s contract with a client, one would
assume that this appeal would have resulted in an affirmance without an opinion.
To the contrary, the District Court ruled that because the Wrongful Death Act
requires that all actions be brought by the decedent’s Personal Representative
who recovers on behalf of all of the decedent’s survivors, that the attorney
representing the Personal Representative does have a right to receive a fee from
all survivors even though there is no contractual relationship between that
attorney and the survivors other than the Personal Representative.
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.
The Court rejected the contention of the attorney for the Personal
Representative that he was entitled to the entire fee and instead held that in light
of the conflict of interest between the survivors on the issue of damages the trial

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court was required to determine what proportion of the representation of the
remaining survivors other than the Personal Representative related to damages
and to compensate the attorney for those survivors based upon that ratio. The
Court then gave a formula for making that determination with a caveat that the
total fee paid by any survivor cannot exceed the maximum contingent fee
permitted by Rule 4-1.5 of the Rules regulating the Florida Bar.
The District Court seems to have ignored the practicalities of its opinion.
In a wrongful death action, the individual named as the personal representative
may have no relationship to the real party in interest in the wrongful death
litigation. It is not at all unusual to have a decedent name a personal
representative in a will who is not even a survivor under the Wrongful Death Act.
This may be an attorney, an accountant or just a trusted friend. While the
Catapane case dealt with a clear liability situation, that is often not the case. A
survivor with major damages who is not the personal representative is going to
have a difficult time finding an attorney who is willing to invest substantial costs
and time in a case where the lion’s share of attorney’s fees is going to go to the
attorney representing the personal representative. The reality of this opinion is
that huge battles will be pitched in the Probate Court whenever there are multiple
survivors in a wrongful death action. Those battles will be fought over who will
be named personal representative, not because one person may be better suited

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than another for the job but for the simple reason that the one who is successful
will be able to obtain counsel and the remaining survivors will not. Who is going
to represent a survivor in a complicated medical malpractice or product liability
suit when compensation for that representation is, at best, uncertain until the
litigation is concluded and, at worst, will result in the lawyer being grossly under
compensated?
The reality is that, after this opinion, no one other than the personal
representative is going to be able to find a lawyer willing to represent them if the
lawyer cannot be assured that his or her contingent fee contract will be honored.
Clearly, under this opinion, it will not. The result, I am afraid, is that despite a
clear conflict of interest among survivors in a wrongful death suit some of those
survivors are not going to be able to find lawyers and are, thus, not going to be
properly compensated.
It is hard to understand why the Fourth District did not simply leave the law
as it was. There doesn’t seem to be any complaint from trial judges that too
many lawyers are taking part in wrongful death suits. Judges deal every day with
multiple parties and, therefore, multiple lawyer, cases. This case imposes on a
client an obligation to pay a fee to a lawyer that the client did not chose and
conversely interferes unnecessarily with the client’s right to contract with the
attorney of their choice. It puts the representation of clients in wrongful death
suits in limbo.

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NOTE: BECAUSE A NUMBER OF PEOPLE HAVE REQUESTED COPIES OF PAST
ARTICLES, A COMPILATION OF THESE ARTICLES IS NOW AVAILABLE TO MEMBERS OF
THE PALM BEACH COUNTY BAR ASSOCIATION, FREE OF CHARGE, BY CALLING (561)
684-2500.

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