For many years, Florida personal representatives have had an important role in the prosecution of a wrongful death case, because he or she is charged by Florida statute with the duty of pursuing claims on behalf of both the estate and the survivors. Allocation of any settlement between such survivors and the estate can be troublesome, especially where the survivors are not the heirs of the estate, or where the estate is heavily indebted.
Recently, a further complication has arisen in the form of Medicare set asides under federal law, and the obligations the law places on attorneys for both wrongful death claimants and the defendants and their insurers. The law is relatively new and still evolving. In Bradley v. Sebelius, a decision handed down Sept. 29, 2010, the federal Eleventh Circuit Court of Appeal held that the U.S. Department of Health and Human Services was bound, under the facts of that case, to the finding of the state probate court as to what the Medicare recovery unit was entitled to receive out of a pre-suit settlement with the insurance carrier for the defendant, a nursing home. The full opinion can be found at http://www.ca11.uscourts.gov/opinions/ops/200913765.pdf
This is an important ruling for attorneys on both sides of wrongful death cases – plaintiff and defense – and may well be decided ultimately in the U.S. Supreme Court. Meanwhile, an excellent article on the topic can be found on Jason Lazarus’ web blog, http://www.settlementlawfirm.com/post-detail.php?id=114.