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 under the Offer of Judgment/Proposal for Settlement statute and rule: section 768.79 and Rule 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 when a bad result fails to beat a PFS 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 PFS is rejected.

It has been several months since our List-Mate Nolan Carter and appellate counsel Karen Wasson [no relation to Roy #2] won that result in the case of Thompson v. Hodson, 825 So. 2d 841 (Fla. 1^st DCA 2002), but in case you missed it or forgot, here it is again for you. The majority decision in Thompson "holds 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 PR can apportion all of a prior settlement to the survivors’ claims and nothing to the estate, the Thompson decision "effectively 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 PR 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.

Keep tryin’!

Roy #2

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