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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.