Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Group
64 So. 3d 1187
| Fla. | 2011Background
- Wrongful Death Act §768.26 governs fees and expenses allocated from settlements; dispute concerns pre-suit settlement in which three Elmores' survivors were represented separately; Gary was personal representative who prevailed in distributing settlement proceeds; Wagner sought a share of fees for representing Larry and Robert; probate court awarded all fees to KLG; Second District affirmed (with limitations) and Wagner sought Florida Supreme Court review on direct conflict grounds; Court granted review to address applicability and allocation doctrines; Court ultimately approves in part and quashes in part, remanding for fee allocation.
- Pre-suit mediation and an uninsured motorist settlement occurred; Larry and Robert pursued separate counsel, creating potential competing interests; KLG represented Gary (PR) and obtained the total $1.23 million settlement; Wagner represented Larry/Robert in related proceedings.
- Court must decide (i) whether §768.26 applies to pre-suit settlements, (ii) whether competing survivor interests require an allocation method, (iii) whether Wagner is entitled to any fee, (iv) whether Perez controls the §768.26 applicability, (v) how to apportion fees under Wiggins/Catapane when multiple attorneys represent survivors.
- Court held that §768.26 applies to pre-suit settlements; there can be competing survivor interests necessitating allocation under Wiggins/Catapane; Wagner may be compensated, but out of total proceeds reduced to fairly compensate Wagner for work on Larry/Robert, not for duplicative recovery; Perez is disapproved to the extent it holds no §768.26 applicability; remanded to determine reasonable compensation for survivors’ attorneys.
- The Florida Wrongful Death Act is remedial and liberally construed; §768.26 allocates litigation expenses and attorney fees from the personal representative to survivors proportionally; the Court adopts Wiggins/Catapane framework for allocating fees when survivors have competing interests and represented by separate counsel; personal representative’s attorney may be compensated from the total recovery, with reductions for other survivors’ counsel; a survivor’s separate counsel may be entitled to a fee proportionate to their contribution if they had a pivotal role.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §768.26 apply to pre-suit settlements? | Wagner: no; statute limited to post-suit litigation. | KLG/Ward: yes; remedial statute applies to settlements. | Yes; §768.26 applies to pre-suit settlements. |
| Should fee allocation follow Wiggins/Catapane when survivors have competing interests represented by separate counsel? | Wagner: yes; competing interests require allocation. | KLG: limit to actual conflict; no double recovery. | Yes; apply Wiggins allocation framework. |
| Is Wagner entitled to any portion of the fee where there was no apparent conflict served by Wagner's work? | Wagner: entitled if contributed; potential pivotal role. | KLG: no work in areas where KLG had a conflict. | Wagner may be compensated from total, reduced accordingly. |
| Does Perez control the §768.26 applicability? | Wagner: Perez limits applicability when no wrongful-death action filed. | KLG: Perez persuasive in some contexts. | Perez disapproved to extent it holds no applicability; §768.26 applies. |
| How should fees be apportioned among survivors when represented separately? | Wagner: proportional to work and contribution of each attorney. | KLG: proportionality is tied to actual conflicts/claims. | Adopt Wiggins/Catapane approach; allocate based on work, with possible larger share for pivotal contributors. |
Key Cases Cited
- In re Estate of Catapane, 759 So. 2d 9 (Fla. 4th DCA 2000) (allocating attorney's fees when survivors have competing interests)
- Wiggins v. Estate of Wright, 850 So. 2d 444 (Fla. 2003) (adopts Catapane method; competition among survivors requires proportional fee awards)
- Perez v. George, Hartz, Lundeen, Flagg & Fulmer, 662 So. 2d 361 (Fla. 3d DCA 1995) (held §768.26 not applicable where no wrongful death action was filed; distinguished on applicability)
- Perris v. Estate of Perris, 764 So. 2d 870 (Fla. 4th DCA 2000) (noting settlement context in fee computation under §768.26)