Wagner, Vaughn, McLaughlin & Brenan, P.A. v. Kennedy Law Group
987 So. 2d 741 (Fla. 2d DCA 2008)
The personal representative, who was one of three brothers, retained the law group to represent the estate in a wrongful death action. One of the brothers retained a separate law firm to represent himself only. The firm hired by the personal representative obtained a settlement; however, the brother whom had secured individual representation subsequently attempted to object to the amount of the settlement but the objection was dismissed because it was procedurally deficient. No further objections were made and the brother accepted his share of the settlement proceeds. The probate court then ruled that the law firm retained to represent the dissatisfied brother was not entitled to a portion of the attorney's fee award. Attorneys fees are apportioned amongst more than one law firm in wrongful death actions when the survivors of the decedent have a conflict of interest and cannot be represented by a single entity. While the dissatisfied brother may have had a conflict of interest, his failure to properly object to the settlement foreclosed his counsel’s ability to recover fees under section 768.26. On appeal, the court rebuked the argument that the fee provision set out in section 768.26 applies only to actions that had already been filed with a court and not to pre-suit settlement negotiations. The court found no basis to exclude fees incurred in such negotiations from the statutory term “litigation expenses.”