Daniel T.K. Hurley, UNITED STATES DISTRICT JUDGE.
Now pending before the Court is the Plaintiffs motion for approval of settlement on behalf of the minor beneficiaries of the Estate of Darian Wisekal, and for entry of an order approving distribution of settlement proceeds [DE 506] and amended motion for approval of settlement [DE 512]. In support of its motion, the Plaintiff previously submitted, under seal, a single page of the proposed settlement agreement in question [DE 508-1]. At the Court's direction, pursuant to § 744.387 (3)(a), and Fla. Prob. R. 5.636, Plaintiff subsequently submitted under seal a copy of the entire proposed settlement agreement [DE 514-1].
Having reviewed the proposed settlement agreement in its entirety, including in relevant aspect the "representations and warranties" of John Wisekal, as the Personal Representative of the Estate, who purports to have "the legal authority under Florida law to enter into [the] Agreement," and to comply with its terms on behalf of the minor children, Baylor and Bianca Wisekal, and to release claims on their behalf, by virtue of his status as "the father and sole living parent of the minor children" [DE 514-1, ¶¶ (4)(a), (b)], and who, under the terms of the proposed settlement, purports to reserve to himself the unlimited authority to instruct defendant and its insurers on distribution of proceeds, including instructions on "amounts to be paid and to whom the payments are to be delivered" [DE 514-1, ¶ 2(b)], the court finds the proposed settlement agreement unacceptable for several reasons.
First, the proposed settlement agreement fails to allocate any sum to the minor children. In this respect, it is demonstrably unfair. While not binding upon the parties, the jury's percentage allocations must be taken into account
Third, it does not appear that Mr. Wisekal, as Personal Representative of the Estate, or as parent and natural guardian of the minor children, has the legal authority to settle the claims of the minor surviving children of the decedent, or to receive settlement proceeds on their behalf under Florida law. Because the proposed settlement of the claims of the minor children exceeds $ 15,000, under Florida law, Mr. Wisekal cannot settle the claims of the children or effectively sign a release of those claims without court appointment as the legal guardian of the children and without this Court's approval and determination that the proposed settlement is in the minors' best interests. Compare § 744.387(2) (requiring legal guardianship for settlement authority on behalf of minor when amount of net settlement to minor exceeds $15,000) and § 744.487(3)(b) (requiring guardianship of the property to collect settlement proceeds and execute releases if settlement exceeds $15,000) with § 744.301(2) (authorizing parents as natural guardians to settle claims and collect proceeds of settlement without appointment if the amounts received in aggregate do not exceed $15,000). See Berges v. Infinity Ins. Co., 896 So.2d 665, 674 (Fla. 2004) (under Florida law, § 744.387(2), a court-appointed guardian is required to settle any minor's claim in excess of statutory threshold, but guardianship law does not require the guardian to obtain court appointment and approval before simply negotiating settlement); Orkin Extermination Co. v. Lazarus, 512 So.2d 1120, 1121 (Fla. 3d DCA 1987) (court-appointed guardian is required to execute a satisfaction of judgment to minor in excess of $5,000), citing Fla. Stat. § 744.387(3), (4). See also Bradley v. Sebelius, 621 F.3d 1330, 1341 (11th Cir.2010) (personal representative of estate is merely a nominal party to wrongful death action brought on behalf of a decedent; the estate and the decedent's survivors are real parties in interest).
Thus, while Mr. Wisekal, as the personal representative of the Estate of his deceased wife, has the authority to settle the claims of the Estate, and is authorized by Florida law to bring this wrongful death action for the benefit of the Estate and the decedent's survivors, § 768.20, Fla. Stat., his status as Personal Representative — standing alone — does not vest him with legal authority to settle the claims of the minor beneficiaries in this case, to collect settlement proceeds on their behalf or to execute releases of their claims. Because
In an effort to discharge its responsibilities under Fla. Stat. §§ 744.387 (2) and (3)(b), the Court directs the attorneys for the Plaintiff to promptly petition the Circuit Court for the Fifteenth Judicial Circuit of Florida, Probate Division, for appointment of a limited guardian of the person authorized to settle and consummate a settlement of the minors' claims, as well as appointment of a guardian of the property authorized to collect, receive, manage and dispose of the proceeds of settlement on behalf of the minors. Further, in presenting the petition for appointment in state court, plaintiff's counsel is directed to attach a copy of this Order to the petition and to personally deliver a copy of this Order to the presiding judge. In addition, plaintiff's counsel shall file an affidavit with this Court indicating his compliance with these two directives.
This Court recognizes that guardianship decisions are properly reposed in the sound discretion of the State Court. Nonetheless, the Court feels compelled to share a number of concerns which it harbors about the qualifications of the Personal Representative, John Wisekal, to serve as legal guardian of the children for the limited purpose of consummating this settlement, or to serve as guardian of the property of the children to be collected in the contemplated settlement. The Court had the benefit of presiding at a lengthy trial, during which Mr. Wisekal's financial history was the subject of extensive testimony. Based upon this evidence, the Court is concerned that Mr. Weiskal, who undoubtedly is a loving and caring father, has a significant history of questionable business judgments and financial difficulties that may render him unsuitable to manage the substantial sums of money contemplated as payments to the minors in this proceeding.
As indicated, this history was developed at trial and also referenced in a motion in limine submitted by plaintiff at the outset of the contemplated retrial in this matter on December 15, 2015 [DE 444]. It includes:
Given this poor financial history, the Court has grave concerns about the suitability
For reasons expressed above, it is.