Florida/Georgia Personal Injury & Workers Compensation

...y the judgment for fees and costs. We hold that the trial court properly denied Hodson's request to compel Thompson to satisfy the judgment for fees and costs by using monies recovered for the survivors in earlier settlements. A. Hodson asserts that section 768.26, Florida Statutes, mandates payment of his judgment for fees and costs from the settlement proceeds collected by Thompson, as personal representative, before distribution of those funds to the survivors. Section 768.26 states: 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. *951 § 768.26, Fla....

...Although Johnson concerned costs, its rationale applies equally to attorneys' fees awarded to the wrongful death defendant. Despite its decades-long existence, the statute has never been cited as authority for recovery of fees from survivors by the opposing party. Cases construing section 768.26, Florida Statutes generally address the question of fees due to the personal representative's attorney....

...ve's attorney and attorneys hired by other beneficiaries); In re Estate of Catapane, 759 So.2d 9, 11 (Fla. 4th DCA 2000) (same); Adams v. Montgomery, Searcy & Denney, P.A., 555 So.2d 957, 958 (Fla. 4th DCA 1990) (same). As the Catapane court noted, "Section 768.26 provides for payment of counsel selected by the personal representative...." Catapane, 759 So.2d at 11....

...g the estate and the survivors. See §§ 768.21, .25, Fla. Stat. (1993); see also Dudley, 799 So.2d at 441. Therefore, the personal representative has no authority to satisfy the judgment for fees and costs from the money he holds for the survivors. Section 768.26 does not provide that authority....

...(1993). Before the personal representative disburses moneys recovered for wrongful death, "[a]ttorneys' fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate." § 768.26, Fla....

...ailable from which the claims of the medical creditors could be paid." 729 So.2d at 525. But the "claims of the medical creditors" plainly did not constitute *957 claims for "[a]ttorneys' fees and other expenses of litigation," within the meaning of section 768.26, Florida Statutes (1993)....

...The personal *11 representative is also the individual having the power to settle such actions. See Pearson v. DeLamerens, 656 So.2d 217, 220 (Fla. 3d DCA 1995). Concomitant with those responsibilities is the personal representative's power to hire counsel. See § 733.612(19), Fla. Stat. Section 768.26 provides for payment of counsel selected by the personal representative: Attorney's 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 prop...

...431, 662 A.2d 572 (App.Div.1995). Accordingly, I would reverse the trial court's determination of entitlement to attorney's fees and remand for the entry of a fee award to David & French in accordance with their fee agreement. Any different result would render the language of section 768.26 meaningless....

...The claim for lost support and services fails to allege that the decedent had any extraordinary income producing attributes. Accordingly, the parents' claim for lost support and services must be stricken as improper under the Florida Wrongful Death act. Defendants' motion to strike attorneys' fees is covered by Fla.Stat. § 768.26....

...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 in...

...3d DCA 1995), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons stated below, we approve in part and quash in part the decision of the Second District. FACTUAL AND PROCEDURAL HISTORY The underlying case involves the application of section 768.26, Florida Statutes (2005), the attorney fees provision of the Florida Wrongful Death Act (the Act), in a wrongful death action that settled before *1189 suit was filed and in which the survivors were represented by separate counsel....

...The Second District concluded that none of these arguments merited reversal. See Wagner, Vaughn, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 987 So.2d 741, 744 (Fla. 2d DCA 2008). The Second District held that even though the wrongful death action settled prior to the filing of a suit, section 768.26, Florida Statutes (2005), did not preclude the award of attorney fees to the personal representative's counsel. Id. at 745-46. The Second District explained that pre-suit negotiations are an important part of wrongful death litigation and that section 768.26 does not limit recoverable fees to those incurred subsequent to filing suit....

...4th DCA 2000), and its method for allocating attorney's fees in a wrongful death action. Because this Court approved the decision in Catapane, in which the insurers had offered the limits of coverage before counsel filed a wrongful death action, the Second District reasoned that "there is no question that section 768.26 applies to provide for fees incurred even in cases that settle before suit is filed." Wagner, 987 So.2d at 746....

...in Perez v. George, Hartz, Lundeen, Flagg & Fulmer, 662 So.2d 361 (Fla. 3d DCA 1995), which also involved the allocation of attorney's *1191 fees in the settlement of a wrongful death action. In a footnote in Perez, the Third District concluded that section 768.26 was not applicable because "[t]here was no action for wrongful death filed or litigated in this case." Id. at 364 n. 4. We granted review on the basis of this conflict as to the applicability of section 768.26. For the reasons explained below, we approve in part and quash in part the decision in Wagner. ANALYSIS The Florida Wrongful Death Act (the Act), which encompasses sections 768.16 to 768.26 of the Florida Statutes, provides that it is the public policy of the State of Florida to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer....

..., the general rule of strict construction does not, in Florida, apply to a remedial statute in derogation of the common law." BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 290 (Fla.2003); see also § 768.17, Fla. Stat. (2005) ("Sections 768.16-768.26 are remedial and shall be liberally construed."). Section 768.26 of the Act, which is entitled "Litigation Expenses," provides: 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. § 768.26, Fla....

...The court held that the mother's attorneys were only entitled to a fee award of one-third of the proceeds received by the mother under the contingency fee agreement signed by her. However, pertinent to the instant case, the Third District also concluded that section 768.26 did not apply because "[t]here was no action for wrongful death filed or litigated in [the] case." Id. at 364 n. 4. Other Florida courts, including this Court, have not restricted section 768.26 to circumstances where a lawsuit has been filed or litigated. In fact, other Florida courts have repeatedly applied the statute to pre-suit settlements obtained by counsel. See, e.g., Wiggins v. Estate of Wright, 850 So.2d 444, 445 (Fla.2003) (applying section 768.26 in a wrongful death case where counsel "negotiated a settlement of the estate's claim with the hospital"); Perris v....

...This application of the statute is consistent with the stated legislative intent that the Act be "liberally construed." § 768.17, Fla. Stat. (2005). Additionally, this furthers the public policy favoring settlement of disputes without litigation where possible. Thus, we agree with the Second District that section 768.26 applies even in those circumstances where a wrongful death claim is settled pre-suit and disapprove the Third District's decision in Perez to the extent that it holds that the statute does not apply where no action for wrongful death has been filed or litigated....

...in order to be entitled to attorney's fees under the Act. We find the Second District's reading of the statute to be too restrictive on this point and inconsistent with our previous decision in Wiggins v. Estate of Wright, 850 So.2d 444 (Fla.2003). Section 768.26 provides that attorney's fees and other expenses of litigating a wrongful death action are to be paid by the personal representative and deducted from the awards to the survivors and the *1193 estate in proportion to the amounts awarded to them....

...of prior proceedings, the court granted Moreno's motion for summary judgment and awarded George, Hartz the entire $166,666.00 as attorneys' fees. Finding no controlling rule of the Florida Bar, or caselaw, the court awarded the fees on the basis of section 768.26, Florida Statutes (1993)....

...[2] Allen was given no notice of these settlement negotiations until after their completion. Indeed, counsel for Nissan testified that during these negotiations, he did not know that Allen represented Perez and he assumed that the George, Hartz firm was authorized to settle the claim for both Moreno and Perez. [3] Section 768.26, proves that: ......

...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. [4] For the same reason we find that section 768.26, Florida Statutes does not apply....

...After the court's approval, appellant was bound by the terms of the settlement agreement. At the apportionment hearing, the court awarded appellant $25,000. After the distribution, appellees petitioned for attorneys' fees of 25% of appellant's award and costs of $1,100. Appellees argued for fees and costs under Section 768.26, Florida Statutes (1987) and the "common fund rule." [1] The trial court ordered appellees be paid $6,250 as attorneys' fees and 11% of all costs (except attorney travel expenses) from appellant's award....

...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 in...

...ttorneys in prosecuting the case, including expert's bills, expert consultation fees, filing fees and pre-suit deposition expenses. The motion sought to apportion the costs among all the plaintiffs in proportion to the amounts awarded to them, under section 768.26, Florida Statutes, as the efforts of the litigation benefited all parties equally....

...As for the trial court's denial of the motion to apportion costs among the parties, we reverse that order as well. There can be no logical argument that some speculative conflict of interest should shield the minors from sharing in the cost of filing and pursuing this litigation, from which they received the settlement. Section 768.26 unequivocally states that litigation expenses shall be "deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them." In this case, there were no "expenses incurred for the benefit of a particular survivor," § 768.26, Fla....

...Re: Defendants Jeff Rainey, Sunny Hall, and Hillsborough Kids, Inc.'s Motion to Dismiss Plaintiff's Amended Complaint (Dkt. 47): These Defendants are sued in Counts I, II, III, IV, V, VI, IX, XIII, XIV, XV, and XVIII Their contention that Plaintiffs have not complied with the notice requirements of Fla. Stat. § 768.26 is likewise rejected....

...[12] Clearly, HKI has statutory duties under Chapter 39 and Section 409.145 of the Florida Statutes, as well as under the federal EPSDT Act. Plaintiffs acknowledge Defendants Rainey and Hall are sued in their official capacity pursuant to Fla. Stat. § 768.26, and not in their individual capacity....

...s authority to settle and survivors cannot be said to have rejected offer of settlement). The appellees contend that allowing a survivor to escape all liability to a prevailing defendant in a wrongful death *894 action is contrary to the language of section 768.26, which states: 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 incu...

...the prevailing defendant. As observed by the First District in Thompson : Despite its decades-long existence, the [Wrongful Death] statute has never been cited as authority for recovery of fees from survivors by the opposing party. Cases construing section 768.26, Florida Statutes generally address the question of fees due to the personal representative’s attorney....

...ttorney and attorneys hired by other beneficiaries); In re Estate of Catapane, 759 So.2d 9, 11 (Fla. 4th DCA 2000) (same); Adams v. Montgomery, Searcy & Denney, P.A., 555 So.2d 957, 958 (Fla. 4th DCA 1990) (same). As the Catapane court noted, “Section 768.26 provides for payment of counsel selected by the personal representative .......

...If plaintiff contends the fees actually and reasonably incurred by Johnny Edward Bozeman after the offer of judgment did not exceed $20,508.56, plaintiff may raise the issue within 10 days by motion for reconsideration of this order, and such proceedings as may be appropriate will be conducted on this issue. [13] See § 768.26, Fla....

...tions precedent to the maintenance of this action have been performed, have occurred, or have been waived. Plaintiffs have complied with all requirements of applicable Florida Statutes, prior to the filing of this action.” Specific compliance with section 768.26(6) was not separately alleged, although Ms....

...Exposito, 87 So.3d 803 (Fla. 3d DCA 2012). 2 The circuit court then heard the defendants’ motions to dismiss the amended complaint on other grounds. The defendants argued that Ms. Exposito’s claims were barred by the statute of limitations; that she failed to comply with section 768.26(6) by not filing her notices of claim “within three years of the incident;” that the doctors could not be personally liable under section 768.26(9); that the lawsuit was barred by section 768.13 (Florida’s “Good Samaritan Act”), because Stephanie’s alleged injuries occurred during a medical emergency; and that she failed to comply with the medical malpractice pre-suit r...

...Third, the Wagner firm alternatively argues that it did not have to show that Larry and Robert had a competing claim in order to be entitled to fees under the act. None of these arguments merits reversal. The fee provision at issue is set forth in section 768.26, Florida Statutes (2005)....

...t of interest.” In re Estate of Catapane, 759 So.2d at 11 n. 1. I. The Wrongful Death Act provides for fees. The Wagner firm argues that the probate court erred in awarding KLG the entire fee as the attorney for the personal representative because section 768.26 does not provide for fees incurred if the case settles before suit is filed. The Wagner firm argues that the “Litigation expenses” heading of section 768.26 limits its application to those instances when suit has already been filed. The Wagner firm argues that its position is supported by Perez v. George, Hartz, Lundeen, Flagg & Fulmer, 662 So.2d 361 (Fla. 3d DCA 1995). We are not persuaded by the Wagner firm’s argument that the title of section 768.26 limits its application to those instances when suit has already been filed. Pre-suit settlement negotiations are an important part of wrongful death litigation, and section 768.26 does not' limit recoverable fees to those incurred subsequent to filing suit....

...While this language would seem to indicate that section 768.28 does not provide for attorney’s fee awards in any cases in which suit had not been filed, Perez was distinguished by the Fourth District in In re Estate of Catapane, 759 So.2d at 11 . As the Fourth District explained, section 768.26 did not apply in Perez because the parents negotiated the-.settlements before a personal representative was appointed, not because a suit had not been filed. Id. In fact, in In re Estate of Catapane, the *746 settlement was reached before suit was filed and the court still determined entitlement to fees pursuant to section 768.26. Id. In re Estate of Catapane was approved by the supreme court in Wiggins, 850 So.2d at 450 . Thus, there is no question that section 768.26 applies to provide for fees incurred even in cases that settle before suit is filed....

...4th DCA 2000). The principles applicable to the allocation of attorney's fees to be paid from the proceeds of a wrongful death claim when one or more of the survivors are represented by separate counsel are also well established in Florida law. With regard to the payment of "Litigation Expenses," section 768.26 of the Act provides for the payment of the attorney hired by the personal representative of the decedent's estate as follows: Attorneys' fees and other expenses of litigation shall be paid by the p...

...proceeds, reduced by the amount necessary to reasonably compensate the other survivors' attorneys for their services in representing those survivors in the proceedings. Id. at 450. Later, in the Wagner case, the court held that section 768.26 of the Act applies to instances where a wrongful death claim is settled presuit and not just to cases where an action has been filed or litigated....

...ng, there was already $.150,000 on the table.” . Although unexpressed, the trial court’s evident intent was to apportion the estate’s asserted liability for fees and costs to the shares of the recovery allocated to Mr. Davis and Mrs. Costello. § 768.26, Fla....