Roy=s Trial Law ATIPS@BTip No. 10
Wrongful Death Survivors’ Non-Liability for
Defendant’s Attorneys’Fees and Costs
by Roy D. Wasson
Fellow of the Academy of Florida Trial Lawyers
Board Certified in Appellate Practice
Do not allow your clients in a wrongful death case to make their decision to accept a small settlement out of fear that the survivors will be exposed to liability for the defendant=s attorneys= fees costs. If you lose the case at trial your clients will not be personally liable for the defendant’s taxable costs. Nor will survivors be liable to pay attorneys’ fees under the Offer of Judgment/Proposal for Settlement statute and rule: section 768.79, Fla. Stat. and Fla. R. Civ. P. 1.442.
Survivors of the decedent are not parties to the litigation, and hence cannot be held liable to the defendant for fees and costs after a defense verdict or a verdict that fails to exceed the requisite sum after rejection of a proposal for settlement offer. Even where a survivor has received proceeds from a settlement with a different tortfeasor in the same case, those proceeds cannot be reached to satisfy a claim for attorneys fees and costs by another defendant whose proposal for settlement is rejected.
B. No Survivor Liablity for Prevailing Party Costs:
Wrongful death survivors should not be intimidated by the threats of defense counsel to collect their taxable costs against them, should the litigation be unsuccessful and a judgment be entered in favor of the Defendant. Costs will be taxable only against the estate itself. If the estate has no assets, the Defendant will have no recourse against the survivors.
In Johnson v. Schneegold, 419 So. 2d 684 (Fla. 2d DCA 1982), the jury returned a verdict for the defendants in a wrongful death case and the defendants sought to tax costs against the survivors individually, but “the trial judge awarded costs only against Schneegold in his capacity as personal representative of Stephen’s estate. That estate has no assets.” Id at 685. Following a ruling in favor the survivors, the defendants appealed the denial of costs against the unsuccessful beneficiaries. In affirming the denial of costs, the Second District held as follows:
Costs are taxable only pursuant to a statute or rule. Lake Region Paradise Island, Inc. v. Graviss, 323 So. 2d 610 (Fla. 2d DCA 1975). We find not statute or rule authorizing recovery of costs by a successful defendant against individuals who are represented by the plaintiff but who are not actually parties to the litigation. Section 57.041, Florida Statutes (1981), authorizes recovery of costs by a party recovering judgment, but does not state against whom costs may be awarded. . . . Costs generally are not recoverable against persons who are not parties to an action.
Plaintiffs’ attorneys frequently style wrongful death cases as being brought by the personal representative, as well as the named survivors, individually. That is not proper because the wrongful death statute limits the party who may serve as a wrongful death plaintiff as the personal representative. However, should you have a case in which you have identified surviving spouse or children as real parties and you are concerned about your survivor being personally liable for costs, the remedy is to drop that survivor as a named party prior to the verdict being returned.
That is what occurred in Puig v. Saga Corp., 543 S. 2d 238 (Fla. 3d DCA 1989). The Third District reversed an award of taxable costs against the surviving widow of a decedent who had been identified as a named plaintiff in the wrongful death action, holding as follows:
In this suit, Aleli Puig, acting as personal representative of the estate of her husband Fernando Puig, brought an action for his wrongful death. She also joined the action personally as a plaintiff. Prior to the case being submitted to the jury, Aleli, acting in her individual capacity, withdrew from the suit. Following an adverse verdict and judgment entered in the wrongful death action, the trial court entered a cost judgment against Aleli as personal representative of the estate and also against her personally. This was error. Section 768.20, Florida Statutes (1987) specifically provides that “the action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death.” Aleli’s interests were provided for by that section and section 768.21, Florida Statutes (1987) which enumerates the parties, including a surviving spouse for whom the personal representative is entitled to recover damages. Aleli, acting as personal representative, should have identified herself as personal representative, should have identified herself as a surviving spouse claiming damages; however, she should not have joined as a party in the action, then it would be an anomaly to permit costs of the action to be taxed against her. See Johnson v. Schneegold, 419 So. 2d 684 (Fla. 2d DCA 1982) (no statute authorizes the taxing of costs against unsuccessful beneficiaries of the cause of action). Accordingly, that portion of the cost judgment which was taxed against the surviving spouse personally is reversed.
Id. at 239 (footnote omitted).
There is no need to name the survivors as individual plaintiffs, but the Puig case should be authority for the proposition that your clients cannot be held personally liable even if improperly identified as plaintiffs in the lawsuit.
C. No Liability for Fees After Rejection of Proposal for Settlement:
The principle that a wrongful death survivor may not be held personally liable for taxable costs also applies to claims by a successful defendant for attorneys fees under the proposal for settlement rule and statute. As with taxable costs, fees can only be awarded against a party to the litigation. To the extent that prevailing party attorneys fees may be recovered at all, they only can be recovered against whatever portion of the recovery is attributable to the estate’s claim.
Thompson v. Hodson, 825 So. 2d 841 (Fla. 1st DCA 2002), Aholds that a plaintiff in a wrongful death action may spurn a qualifying proposal for settlement from one of several defendants, then defeat collection of the judgment for costs and attorney’s fees that results from failure to accept the offer of settlement, simply by announcing an intention to allocate no portion of a substantial recovery (from other defendants) to the decedent’s estate.@ 825 So. 2d at 954 (Benton, J., dissenting).
In Thompson, the court rejected the defendant=s argument that fees should be taxed against the proceeds of a prior settlement which were apportioned to the survivors= claims (as opposed to the estate=s claims), holding as follows:
The remaining question before us asks whether Hodson may recover fees from the survivors’ shares of settlement proceeds from other settling defendants. In these consolidated cases, we have determined that Hodson has shown an entitlement to fees under section 768.79, Florida Statutes, by serving an offer of judgment on Thompson and then trying the case to a defense verdict. Hodson’s dilemma, however, comes down to identifying any funds that are available to pay the judgment for fees and costs. We hold that the trial court properly denied Hodson’s request to compel Thompson to satisfy the judgment for fees and costs by using monies recovered for the survivors in earlier settlements.
825 So. 2d at 950(emphasis added).
The Hodson court noted that it was immaterial that the defendant became entitled to his fee award before the prior settlement funds had been distributed to the survivors by the personal representative:
Hodson . . . seeks costs and fees from the personal representative while the personal representative still has the settlement proceeds; he does not want to tax costs against the survivors individually after the money is in their hands, as the defendant attempted in Johnson. This is a distinction without a difference. The personal representative, as the statutorily-appointed party plaintiff in the wrongful death case, is merely a conduit for the settlement proceeds, and he is duty-bound to apportion the proceeds equitably among the estate and the survivors. See ‘ ‘ 768.21, .25, Fla. Stat. (1993); see also Dudley, 799 So. 2d at 441. Therefore, the personal representative has no authority to satisfy the judgment for fees and costs from the money he holds for the survivors.
Id. at 952 (emphasis added).
At least in cases where the personal representative can apportion all of a prior settlement to the survivors= claims and nothing to the estate, the Thompson decision Aeffectively immunizes plaintiffs in wrongful death actions against cost and fee awards under the offer of judgment statute.@ 825 So. 2d at 954 (Benton, J., dissenting). Use good sense in recommending apportionment of settlement proceeds to the personal representative and in deciding what claims (estate vs. survivors) to file and settle, but don=t be bullied where a good faith apportionment leaves nothing for the defendant to reach in making a fee claim later on.
I hope that the advice contained in this Tip will not be useful to any of our readers, because that will mean that you are in the position of the non-prevailing party in your wrongful death litigation. However, if worse comes to worse, and you find yourself in that situation, all you can do is . . .