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.