Wagner, Vaughn, McLaughlin & Brennan, P.A. v. Kennedy Law Group, — So.2d —-, 2008 WL 2668801 (Fla. 2d DCA Jul 09, 2008)

Shaking-Hands-In-Front-of-Ben-Franklin Ever wonder why your friendly neighborhood plaintiff’s lawyer gets a bit tense when he hires you to get his client appointed personal representative . . . PRONTO! Easy, because under F.S. 768.20 only the PR has standing to bring a wrongful death suit on behalf of the estate and the survivors. If your guy’s client doesn’t get appointed PR, he’s out of the game.

But just because the PR is the only party with standing to prosecute the liability phase of the wrongful-death suit, doesn’t mean the survivors may not need independent counsel when it comes time to litigating the damages phase of the case and apportioning damages among them. Under F.S. 768.22 the jury apportions damages among the survivors if there’s a trial. If there’s no trial, then the survivors can hire their own lawyer to negotiate their own individual share of the damages payout to the extent there’s a conflict of interest between them and the PR.

With that background in mind the following excerpt from the linked-to case should make sense. In this case two firms were litigating entitlement to the contingency fee resulting from $1.23 million in settlement proceeds. The 2d DCA awarded 100% of the fee solely to the PR’s counsel because there was NO conflict of interest between the PR and the survivors when it came time to divvying up the damages pie. Here’s how the 2d DCA explained its ruling:

As we stated previously, when survivors have a conflict of interest with the personal representative, the attorney for the personal representative is precluded from collecting fees out of the survivors’ portions of the recovery. Wiggins, 850 So.2d at 450. In this case, the probate court denied the Wagner firm’s objection to KLG’s request for fees based on its determination that Larry and Robert did not have a competing claim or conflict of interest with Gary. The Wagner firm argues that the probate court’s finding on this issue is erroneous because “[t]he record contains compelling and uncontroverted evidence of a deep-seated divide between Gary, on the one hand, and Larry and Robert on the other, which came to the fore as a result of their parents’ tragic deaths.” The Wagner firm argues that KLG was placed on notice of the conflict when the Wagner firm objected to the one-third apportionment of the bodily injury settlement and attempted to remove Gary as the personal representative.

It is true that the Wagner firm’s objection to the apportionment of the bodily injury settlement would have established a conflict of interest between Larry and KLG had it been pursued. However, Larry abandoned his objection to the apportionment after his petition to remove Gary was dismissed. While there was certainly a potential conflict of interest between Larry and Robert and KLG, an actual conflict never arose because Larry and Robert never objected to the amount or apportionment of the UM settlement. Larry and Robert may have believed that the settlement was a bit low and that they were entitled to a greater portion of the settlement proceeds, but they waived any objection to the settlement by accepting their equal shares.

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As the Fourth District has stated, “counsel retained individually by survivors, and not by the personal representative, cannot expect to be compensated for work on those aspects of the case on which counsel for the personal representative has no conflict of interest.” In re Estate of Catapane, 759 So.2d at 11 n. 1. Because the Wagner firm did not perform any work on any aspect of the case in which KLG had a conflict of interest, the probate court did not abuse its discretion in declining to award the Wagner firm a share of the attorney’s fees in this case.