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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. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

  2. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  3. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  4. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  5. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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