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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. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  2. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  3. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  4. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

  5. What form or who do I talk to about a d felony which I hear is classified as a 6 now? Who do I talk to. About to get my degree and I need this to go away it's been over 7 years if that helps.

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