Attorneys’ Fees in Florida Wrongful Death Cases

Florida’s Wrongful Death Act, located at Sections 768.16-768.26 of the Florida Statutes, concentrates on loss suffered by survivors and creates a separate entitlement to damages for each survivor. However, the survivors cannot bring separate legal actions. Rather, the personal representative is the only party with standing to bring a wrongful death suit on behalf of the estate and the survivors. See ยง 768.20, Fla. Stat. Under the legal procedure set out in the wrongful death statute, all survivors and claimants are required to participate in a single legal action to be filed by the estate on behalf of all the survivors. Upon trial, damages are to be apportioned to each survivor in the verdict form.” Wiggins v. Estate of April Brown Wright, 850 So.2d 444 (Fla., 2003).

The personal representative selects the attorney who will pursue the recovery on behalf of the estate and the survivors. The typical contingent fee retainer agreement in these cases provides for attorneys’ fees from 33-1/3% (case settled pre-suit) to 40% (post-suit, post-Answer [to lawsuit]) of the combined amount recoved by the estate and the survivors.

In many instances the survivors entitled to compensation in a wrongful death action may be in agreement both as to prosecuting a wrongful death claim, and in the distribution of any recovery. When this is the case, this procedure will work well, especially when all of the survivors have a commonality of interest and a single attorney can represent those interests. This may often be the case, for example, when a parent-spouse is killed and the surviving spouse and children are represented by the same attorney.

However, when the survivors do not have a commonality of interest, this procedure may also sometimes produce conflict about the resolution of the claim, apportionment of damages to the survivors, and the award of attorneys’ fees. Under the wrongful death act, survivors of the deceased are entitled to damages caused to each of them by the wrongful loss of the decedent. Further, regardless of whether the court action must be filed in the name of the estate, survivors are still entitled to be represented by counsel of their choice. The individual survivors who hire separate counsel will enter into contingency fee retainer agreements with their own attorneys providing for fees from 1/3 to 40%.

Accordingly, where a survivor has hired an attorney other than the attorney hired by the personal representative, there will be two separate retainer agreements requiring that survivor to pay fees to two different lawyers. Does this mean that survivors who have chosen separate counsel must pay a double fee? The answer is a resounding No.

Rule 4-1.5 of the Rules Regulating the Florida Bar, limits the percentage amount an individual may pay as a fee in a case handled on a contingent basis. If the survivors who have chosen to retain separate counsel were forced to pay the full fee under both agreements, the total fee would exceed the amount allowed by the Florida Bar rule. Accordingly, survivors who have chosen to retain separate counsel will not be punished by having to pay twice.

How it works is that the various lawyers will be compensated from the single fee recovery of 33-1/3 to 40%. If the parties are unable to make the determination on their own, the court will make it for them. There is no hard and fast formula for the division. The court will consider the role of each attorney in the case.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.