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Attorney's fees can come from damages award

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Reasonable attorney's fees may be paid out of the damages award in a wrongful death action, the Indiana Court of Appeals ruled today.

In Ronald Hillebrand v. The Supervised Estate of Charlotte Fern Large, No. 70A01-0902-CV-72, Ronald Hillebrand, as sole surviving child of Charlotte Fern Large, appealed the trial court's order that directed attorney's fees be deducted from Large's wrongful death settlement.

Large was killed following a car accident and the counsel for the person appointed as personal representative of Large's estate pursued a wrongful-death action. The parties settled, and about $12,000 was to be deposited into the estate and $48,000 to be paid to Hillebrand as her beneficiary.

Counsel for the personal representative then requested the trial court allow payment of the attorney's fees to come from the entire settlement recovery. Hillebrand objected, but the trial court ordered the $6,500 in fees for pursuing the wrongful death action be deducted from the settlement.

Examining Indiana Code sections 34-23-1-1 and 34-23-1-2, and relying on caselaw in Vollmar by Vollmar v. Rupright, 517 N.E.2d 1240 (Ind. Ct. App. 1988), and Thomas v. Eads, 400 N.E.2d 778 (Ind. Ct. App. 1980), the appellate court upheld the trial court's order. The Court of Appeals agreed with the reasoning followed in Thomas in which the trial court noted in a footnote that even though I.C. Section 34-23-1-1 doesn't expressly include attorney fees as recoverable damages in case the decedent leaves dependents or next of kin, attorney's fees are nevertheless included in the list of damages.

Both sections of the wrongful death statute list damages but say damages are not limited to what's listed. The Court of Appeals interpreted the statute to allow in every situation - regardless of whether a widow, widower, dependent, or next-of-kin exists - the recovery of reasonable costs of administering the decedent's estate, including attorney's fees, wrote Judge Patricia Riley.

The legislature intended for any damages recovered for the costs of administering the decedent's estate or prosecuting or compromising an action to inure the exclusive benefit of the estate for the payment of such costs, she continued.

"Thus, as attorney fees are to be treated similar to the 'reasonable medical, hospital, funeral, and burial expenses,' the costs are to be taken from the settlement proceeds for the exclusive benefit of the estate and the estate is responsible for their payment," Judge Riley wrote.

The remainder of damages inure to the exclusive benefit of a nondependent parent or child of the decedent in accordance with I.C. Section 34-23-1-2(d). In addition, because the settlement already allocated the funds which inure to the exclusive benefit of the estate for payment of the expenses, the Court of Appeals directed the attorney's fees also be paid out of the money expressly allocated to the estate.

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