In
Rodgers v. McElroy, No. 2110364 (Ala. Civ. App. Aug. 10, 2012), White
was killed in an accident caused by a drunk driver. McElroy, the Jefferson
County administrator, was appointed White’s personal representative.
White’s estate had no assets. McElroy hired Stamps to pursue a
wrongful-death claim, which included seeking UMI coverage. There was a
recovery of UMI benefits and liability insurance. McElroy requested and
was awarded a portion of the wrongful-death recovery as a fee for serving as the
personal representative. One of the statutory heirs appealed, arguing
that McElroy was not entitled to a fee.
The
majority of judges found that McElroy was entitled to a fee. The majority
emphasized that McElroy “performed” a service for the heirs and placed reliance
on Sec. 43-2-848(b) as allowing for the awarding of such a fee for having
performed “extraordinary services … for the estate.”
Judge
Moore wrote a “strong” dissent that, among other things, noted that McElroy really
did not do anything other than engage the services of an attorney.
Rodgers
failed to specifically challenge the amount given McElroy (9%).
This
opinion opens the door when there is a no-asset estate for compensating a
personal representative from a wrongful-death recovery, but the Supreme Court
could shut the door by adopting Judge Moore’s dissent.
