Beseau v. Bhalani, 2005 WL 1488584 (Fla. 5th DCA June 24, 2005) (Trial Court Reversed) In the underlying wrongful death suit, the defendants prevailed after a jury trial. They then obtained an order awarding attorney’s fees and costs against the personal representative of the decedent’s estate . . . in her individual capacity. Apparently Volusia County Judge J. David Walsh thought this was OK because the personal representative was named “individually” in the complaint’s caption and she never objected. The Fifth DCA made quick work of the case pointing out that regardless of what the complaint’s caption may have said, the body of the complaint made clear that the lawsuit was brought on behalf of the estate, not the individual who happened to be serving as personal representative. And if you’re not a party to the lawsuit, the court can’t assess a judgment against you . . . even if you don’t object. Florida appellate lawyer Matt Conigliaro also posted these interesting comments on his blog, Abstract Appeal. Matt thinks this case is a good example of how Florida’s fee-shifting system encouraging early settlement of cases falls short when the plaintiff is immune from personal liability, as is the case with personal representatives. The following is an excerpt of his post:
Reading this decision from the Fifth District brought to mind complaints I’ve heard over the years that the fee-shifting system we have in place to encourage settlements and discourage frivolous litigation fails in too many instances. One oft-discussed instance is wrongful death litigation, where decisions on the plaintiff’s side are made by someone who has no exposure to attorney’s fees if a reasonable offer of judgment is refused. . . . But what if the offeree is deceased and the person deciding whether to accept the offer is not even a party? That’s essentially the situation in wrongful death cases, where the plaintiff is the decedent’s estate and the estate is represented by its personal representative. The personal representative should decide whom to sue, what claims to bring, how much money to seek, and whether to settle the case when presented with a reasonable settlement offer. The personal representative is not, however, an individual party to the case. So if a personal representative rejects a reasonable settlement offer, and the estate does not prevail at trial, a fee award can be entered against the estate but not against the person serving as the estate’s representative. If the decedent left only a modest-sized estate, from which a fee award cannot be collected, then practically speaking there is no penalty to the estate or the personal representative for refusing to accept a reasonable settlement offer.