Heiston v. Schwartz & Zonas, LLP
221 So. 3d 1268
| Fla. Dist. Ct. App. | 2017Background
- Sixteen‑year‑old Dylan Heiston died in an auto accident; his parents Rasjia and Kristina were statutory survivors, and his brother Dominic was appointed personal representative of the estate.
- Morgan & Morgan represented Dominic (the personal representative); Schwartz & Zonas represented the parents and pursued settlement efforts presuit.
- Total recovery was $205,000 (two insurer policy limits plus $5,000 death benefit); Morgan & Morgan agreed to a reduced contingent fee of $50,000 (25% of $200,000).
- Schwartz & Zonas claimed a one‑third contingency and objected to payment of Morgan & Morgan’s $50,190.51 fee, seeking the full fee (or 80%).
- Trial court awarded the entire $50,000 contingent fee to Schwartz & Zonas; Dominic (as personal representative) appealed.
Issues
| Issue | Plaintiff's Argument (Dominic / Morgan & Morgan) | Defendant's Argument (Schwartz & Zonas) | Held |
|---|---|---|---|
| Whether the trial court properly awarded the entire contingent fee to survivors’ counsel | Morgan & Morgan: fee belongs to personal representative’s counsel; survivors’ counsel should only be compensated from survivors’ shares to the extent their services benefitted the survivors | Schwartz & Zonas: they acted first, performed majority of work, received tendered checks and represented the real parties in interest (the parents), so they deserve the full (or majority) fee | Reversed: trial court erred; cannot award entire fee to survivors’ counsel simply because they acted first |
| Whether the personal representative is the exclusive party to prosecute and settle wrongful death claims | Morgan & Morgan: statute grants exclusive authority to personal representative to bring and settle claims | Schwartz & Zonas: argued parents were the real parties in interest and their prior activity entitled them to fee | Court: personal representative has exclusive authority under the Wrongful Death Act; survivors may have separate counsel but do not control the action |
| Proper method to allocate attorney’s fees when survivors have separate counsel | Morgan & Morgan: fee should be awarded to personal representative’s counsel from total proceeds, then reduced to compensate survivors’ counsel only for services benefiting those survivors | Schwartz & Zonas: the allocation should reflect who performed the work and who obtained funds (they claim majority) | Court: allocation must follow Wiggins/Catapane approach — compensate personal representative’s counsel from total, then reduce proportionately for value of survivors’ counsel’s services |
| Whether presuit settlement activity by survivors’ counsel defeats statutory allocation rules | Morgan & Morgan: presuit activity does not displace the statutory role of the personal representative or Catapane/Wiggins allocation | Schwartz & Zonas: presuit actions and receipt of settlement checks justify greater fee award | Court: presuit activity does not override statutory scheme; trial court improperly favored first mover and must reassess allocation under controlling law |
Key Cases Cited
- Wiggins v. Estate of Wright, 850 So. 2d 444 (Fla. 2003) (approves Catapane method for allocating wrongful death attorneys’ fees and instructs compensating personal representative’s counsel from total then adjusting for survivors’ counsel)
- In re Estate of Catapane, 759 So. 2d 9 (Fla. 4th DCA 2000) (framework for allocating contingent fees between personal representative’s counsel and separate survivors’ counsel)
- Wagner v. Kennedy Law Group, 64 So. 3d 1187 (Fla. 2011) (section 768.26 applies to presuit settlements and reaffirms Catapane/Wiggins allocation principles)
- Garces v. Montano, 947 So. 2d 499 (Fla. 3d DCA 2006) (reversing improper fee allocation and directing remand for application of Wiggins principles)