Are Survivors Under Florida’s Wrongful Death Act Truly Immune to Sanctions?

law books.jpgLittle known by most lay people is that every plaintiff involved in litigation, even those who appear to walk away with favorable judgments, may be subject to court sanctions in the form of paying the defendant’s attorneys fees.

The sanction can be imposed under Florida Rule of Civil Procedure 1.442, known as the Proposal for Settlement rule. Under the PFS rule, if the plaintiff refuses a pretrial offer for 25% more than the case is worth, the plaintiff may have to pay the defendant’s attorneys fees incurred from the date of the offer through the trial of the case. (For purposes of this topic, the worth of a case is the amount of the final judgment. A final judgment is not the same thing as a verdict.)

The courts appear to have found an exception to the PFS rule for survivors in cases brought under Florida’s Wrongful Death Act.

In Kadlecik v. Haim, 79 S03d 892 (Fla. 5th DCA 2012), the court gave the following explanation for the exception:

Under Florida’s Wrongful Death Act, an estate’s personal representative brings all claims on behalf of both the estate and the decedent’s survivors. ยงยง 768.16-.26, Fla. Stat. (2010). The personal representative has the exclusive authority to conduct litigation and settle all claims. Thompson v. Hodson, 825 So. 2d 941 (Fla. 1st DCA 2002); Pearson v. DeLamerens, 656 So. 2d 217 (Fla. 3d DCA 1995). The survivors are not parties to the wrongful death litigation, even when the claims are brought for their benefit. Accordingly, it is error to award attorneys’ fees against the survivors because the personal representative is the only person with authority to settle the claim and the individual survivors cannot be fairly said to have rejected an offer of settlement. See Beseau v. Bhalani, 904 So. 2d 641, 642 (Fla. 5th DCA 2005) (holding that entry of judgment against survivor was erroneous as, despite being individually named on complaint, she was not proper party to proceeding); Thompson, 825 So. 2d at 952 (holding that attorneys’ fees cannot be assessed against survivors in wrongful death action based on offer of judgment since personal representative alone has authority to settle and survivors cannot be said to have rejected offer of settlement).

Is the exception foolproof? At least one Florida lawyer, the renowned Dale Swope, of Swope, Rodante, P.A., in Tampa, has doubts. (His article on the subject is contained in the March/April 2012 #559 edition of the Journal, a magazine published for members of the Florida Justice Association.)

First, it should be understood that a prevailing defendant in a wrongful death case may recover fees from the estate when the personal representative rejects a reasonable offer of settlement. See In re Estate of Bronk, 502 So. 2d 65 (Fla. 1st DCA 1987); accord Walker v. Bozeman, 243 F. Supp. 2d 1298 (N.D. Fla. 2003) (holding that award of attorneys’ fees under Florida’s offer of judgment statute in favor of defendant in wrongful death action could not be recovered from survivors, but only from personal representative as claim against estate). However, because the PR is often able to allocate most, if not all, of the money recovered from the defendant to the survivors instead of the estate, the rule can be more form than substance. Only money allocated to the estate is subject to the PFS rule.

Mr. Swope believes that the answer lies in the PFS rule itself. He posits that since the PFS rule “permits PFS’s to state their applicability to specific ‘”claims,”‘ an offer made to the personal representative of a specific amount for an individual’s survivor’s claim would cause the rule to kick in against the survivor’s claim. In his view, the reason why the Kadlecik defendant’s PFS failed was not because of the statute, “but in the wording of the proposals served by the defendants.”

It remains to be seen whether Mr. Swope is correct. His concern, rightfully, is that Florida’s right-wing legislature will try to “fix” the perceived glitch in the PFS rule by enacting legislation that further curtails the rights of victims and consumers by going beyond the narrow issue.
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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.

Contact us toll-free at 866-785-GALE or by email to learn your rights.