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Attorney's fees can come from damages award

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Reasonable attorney's fees may be paid out of the damages award in a wrongful death action, the Indiana Court of Appeals ruled today.

In Ronald Hillebrand v. The Supervised Estate of Charlotte Fern Large, No. 70A01-0902-CV-72, Ronald Hillebrand, as sole surviving child of Charlotte Fern Large, appealed the trial court's order that directed attorney's fees be deducted from Large's wrongful death settlement.

Large was killed following a car accident and the counsel for the person appointed as personal representative of Large's estate pursued a wrongful-death action. The parties settled, and about $12,000 was to be deposited into the estate and $48,000 to be paid to Hillebrand as her beneficiary.

Counsel for the personal representative then requested the trial court allow payment of the attorney's fees to come from the entire settlement recovery. Hillebrand objected, but the trial court ordered the $6,500 in fees for pursuing the wrongful death action be deducted from the settlement.

Examining Indiana Code sections 34-23-1-1 and 34-23-1-2, and relying on caselaw in Vollmar by Vollmar v. Rupright, 517 N.E.2d 1240 (Ind. Ct. App. 1988), and Thomas v. Eads, 400 N.E.2d 778 (Ind. Ct. App. 1980), the appellate court upheld the trial court's order. The Court of Appeals agreed with the reasoning followed in Thomas in which the trial court noted in a footnote that even though I.C. Section 34-23-1-1 doesn't expressly include attorney fees as recoverable damages in case the decedent leaves dependents or next of kin, attorney's fees are nevertheless included in the list of damages.

Both sections of the wrongful death statute list damages but say damages are not limited to what's listed. The Court of Appeals interpreted the statute to allow in every situation - regardless of whether a widow, widower, dependent, or next-of-kin exists - the recovery of reasonable costs of administering the decedent's estate, including attorney's fees, wrote Judge Patricia Riley.

The legislature intended for any damages recovered for the costs of administering the decedent's estate or prosecuting or compromising an action to inure the exclusive benefit of the estate for the payment of such costs, she continued.

"Thus, as attorney fees are to be treated similar to the 'reasonable medical, hospital, funeral, and burial expenses,' the costs are to be taken from the settlement proceeds for the exclusive benefit of the estate and the estate is responsible for their payment," Judge Riley wrote.

The remainder of damages inure to the exclusive benefit of a nondependent parent or child of the decedent in accordance with I.C. Section 34-23-1-2(d). In addition, because the settlement already allocated the funds which inure to the exclusive benefit of the estate for payment of the expenses, the Court of Appeals directed the attorney's fees also be paid out of the money expressly allocated to the estate.

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  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

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