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Attorney fees not recoverable under adult wrongful death statute

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The Indiana Court of Appeals today disagreed about an issue of first impression regarding recovery of attorney fees under the adult wrongful death statute.

In Jeffery H. McCabe, As Representative of the Estate of Jean Francis McCabe, Decedent v. Commissioner, Indiana Department of Insurance as Administrator of the Indiana Patient’s Compensation Fund, No. 49A02-0908-CV-728, Jeffrey McCabe appealed the grant of partial summary judgment in favor of the Commissioner, Indiana Department of Insurance as Administrator of the Indiana Patient’s Compensation Fund. The trial court had ruled attorney fees and expenses incurred by the attorney representing the personal representative of a wrongful death estate are not recoverable damages under the state adult wrongful death statute.

The appellate court noted Indiana has three separate causes of action for the wrongful death of an individual: a general wrongful death statute, a statute pertaining to the wrongful death of children, and the adult wrongful death statute. The primary difference for the purposes of this appeal is that the GWDS and the CWDS specifically provide for reasonable attorney fees, but the AWDS does not address the matter.

Jean Francis McCabe died Oct. 1, 2003, from an methotrexate overdose negligently administered to her by medical providers at the long-term care facility where she lived. Jeffrey McCabe is her only child and a nondependent.

McCabe filed a proposed complaint in December 2003 with the Department of Insurance pursuant to the Indiana Medical Malpractice Act. The matter was presented to a medical review panel; shortly thereafter, the care facility settled all claims with McCabe for an amount that would allow further proceedings against the Indiana Patient’s Compensation Fund.

As the personal representative of his mother’s estate, McCabe filed his petition to determine the amount of excess damages against the fund Sept. 23, 2008. Through discovery, McCabe clarified that in addition to seeking recovery for the loss of his mother’s love and companionship, medical expenses, funeral and burial expenses, he also sought repayment of costs and expenses, including attorney fees, for the administration of the wrongful death estate and prosecution of the wrongful death claim.

The fund filed a motion for partial summary judgment April 7, 2009, on the issue of recoverable damages, seeking to limit the recovery to damages specifically allowed under the AWDS.

The trial court ruled in June 2009 that attorney fees, costs, and expenses are not recoverable under AWDS. The appellate court accepted jurisdiction Oct. 14, 2009, of McCabe’s interlocutory appeal.

McCabe relied on Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846 (Ind. Ct. App. 2009), but the appellate court noted Hillebrand is distinguishable from the instant case because it was a probate case deciding from which probate assets attorney fees incurred should be paid, and it precedes both the CWDS and the AWDS.

Also, it noted that the Indiana Supreme Court recently concluded in Butler v. Indiana Department of Insurance, 904 N.E.2d 198, 202 (Ind. 2009),  that the “include but not limited to” language does not expand the class of necessitated expenses.

“While we acknowledge that this inconsistency is troubling, we believe such inconsistency is the result of public policy considerations that are the prerogative of the General Assembly,” wrote Judge Paul Mathias, with whom Judge Cale Bradford concurred.

Judge Patricia Riley dissented, writing, “In light of the Estate of Kuba (508 N.E.2d 1, 2 (Ind. 1987)), Butler, and Hillebrand, I would hold that reasonable attorney fees are recoverable damages under the AWDS.”

Judge Riley noted that unlike the majority’s opinion, hers produces a harmonious result between the GWDS, AWDS, and CWDS.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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