Kadlecik v. Haim
2012 Fla. App. LEXIS 2449
Fla. Dist. Ct. App.2012Background
- Charles Kadlecik, as personal representative and sole survivor, challenges an award of attorneys’ fees against him personally for a wrongful death action arising from his wife Linda Kadlecik’s death during a procedure by Dr. Haim.
- Settlement agreements resolved most claims against Florida Hospital; Kadlecik allocated the entire settlement to survivor claims.
- Before trial, appellees served offers of settlement; Kadlecik rejected them; jury returned a verdict in favor of appellees; fee awards against Kadlecik as personal representative were affirmed.
- Probate court apportioned Florida Hospital’s settlement proceeds to satisfy the fee awards or surcharged the personal representative; the court ordered Kadlecik to pay the fees sixty days before distributing the remaining funds to himself as sole survivor.
- Kadlecik argues fees may not be recovered from survivor funds under the Wrongful Death Act, since survivors are not parties to the wrongful death litigation and the personal representative has sole authority to settle.
- The court holds that fees may be collected only from the Estate, not from funds allocated to the survivor, and reverses the probate court order.
- The court recognizes a residual concern about survivors avoiding liability by rejecting offers, but notes that this has persisted since Johnson without legislative correction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether survivor funds may bear attorneys’ fees awarded against the personal representative. | Kadlecik: fees cannot be charged to survivor funds under the Wrongful Death Act. | appellees: fees can be charged against survivor allocations per §768.26. | Fees cannot be recovered from survivor funds; they may be collected from the Estate. |
| Whether the probate court properly ordered payment of fees before distribution to the survivor when the Estate has no viable claim. | Kadlecik: payment should not be required from survivor proceeds if the Estate lacks a viable claim. | Appellees: proper to enforce fee payment against the Estate as an administrative priority. | Order requiring payment before distribution to the survivor is improper when the Estate has no viable claim. |
Key Cases Cited
- Thompson v. Hodson, 825 So.2d 941 (Fla. 1st DCA 2002) (personal representative controls litigation and settlement; survivors not parties)
- Catapane v. Estate of Catapane, 759 So.2d 9 (Fla. 4th DCA 2000) (section 768.26 pays counsel selected by the personal representative)
- Beseau v. Bhalani, 904 So.2d 641 (Fla. 5th DCA 2005) (entry of judgment against survivor erroneous; survivor not proper party)
- Johnson v. Schneegold, 419 So.2d 684 (Fla. 2d DCA 1982) (survivors immunized from cost and fee awards; legislative update lacking)
- In re Estate of Bronk, 502 So.2d 65 (Fla. 1st DCA 1987) (offer of judgment fees recovered from estate, not survivor)
- Walker v. Bozeman, 243 F.Supp.2d 1298 (N.D. Fla. 2003) (fees under offer of judgment statute recoverable from estate, not survivors)