Court reduces attorney fees awarded to pay firm by $1 million

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The Indiana Court of Appeals Wednesday found that an estate of a man with dependents can recover attorney fees under the General Wrongful Death Statute, but the trial court erred in how it calculated the amount the law firm will receive.

SCI Propane and other defendants appealed the award of “reasonable” attorney fees to Courtney Frederick, as personal representative of the estate of Stephen Frederick. Her husband was killed when a gas propane tank exploded on the property of William and Betty Kindle. They had recently changed the gas-control valve for their water heater, and neither SCI, nor Midland-Impact LLP, which was hired by SCI to fill the Kindles’ propane tank, re-tested the system after the Kindles’ repair.

The explosion and fire injured six other family members and led to a liability lawsuit filed by the victims.  A jury awarded the plaintiffs $27 million in damages, which was reduced based on the finding William Kindle was 35 percent at fault.

Frederick’s estate received more $3.7 million after the parties settled on the issue of damages, and the settlement did not include attorney fees. Those fees are at the heart of the appeal in SCI Propane, LLC; South Central Indiana Rural Electric Membership Corporation; et al v. Courtney Frederick, as Personal Representative of the Estate of Stephen Frederick, deceased, 55A04-1211-PL-586.

The defendants argue that the GWDS does not allow for the estate to recover attorney fees, as the statute does not explicitly say that attorney fees are recoverable when a decedent is survived by a spouse, dependent children or dependent next of kin. The defendants also argue that the trial court erred when it granted the estate nearly $2.33 million to pay attorney fees to Faegre Baker Daniels. The trial court held under the GWDS, the fee recovery should be based on a reasonableness standard, but the defendants claimed the estate was entitled to recover only under the terms of its contingency fee contract with FBD.

The Court of Appeals decided that attorney fees are recoverable under the first part of the GWDS because those fees are the “type” of damages contemplated by the statute; such a conclusion comports with the court’s principles of statutory construction; and the Legislature has “acquiesced” to the recoverability of attorney fees.

But the amount the estate can recover should have been limited to the amount it was required to pay FBD under its contingency fee agreement, Judge Rudolph Pyle III wrote. The award of attorney fees under the statute is compensatory in nature, and an aggrieved party should not be put in a better position than had the tort not occurred.

The trial court’s award of damages places the estate in a much better position than it would have been through its contingent fee agreement. The estate owes FBD 33 and 1/3 percent of its recovery from the settlement, which equals a little more than $1.244 million. But the estate was awarded more than $2.3 in attorney fees.

The case is remanded for the trial court to enter a revised award of attorney fees that is consistent with the attorney fee damages the estate incurred under its contingency fee agreement.


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