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COA panels divided on attorney's fees under AWDA

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Nearly a month after an Indiana Court of Appeals panel ruled attorney's fees aren’t recoverable under the Adult Wrongful Death Act in a matter of first impression, another panel unanimously ruled they are recoverable.

A split court ruled July 20 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, that the “may include but are not limited to” language in the Adult Wrongful Death Act doesn’t allow for attorney’s fees. The majority ruled such a result would similarly “expand the circumscribed damages defined by the general assembly.” They relied on Butler v. Ind. Dept. of Ins., 904 N.E.2d 198 (Ind. 2009), which held this language in the AWDA doesn’t expand the class of such necessitated expenses nor direct the expansion of the circumscribed damages defined in the statute.

But Judges Melissa May, L. Mark Bailey, and Michael Barnes concluded otherwise today in Hematology-Oncology of Indiana, P.C. v. Hadley W. Fruits, Personal Rep. for the Estate of Elizabeth Ann Cadou, No. 49A05-0910-CV-556. The judges believed that Kuba v. Ristow Trucking Co., 508 N.E.2d 1, 2 (Ind. 1987), instructs that the “may include but are not limited to” language allows for other categories of compensatory damages, like attorney’s fees. The Kuba ruling took the view that although the legislature left open the statute to allow for other damages, these damages must be compensatory.

And attorney’s fees have been found to be in the nature of compensatory instead of punitive damages, wrote Judge May.

The judges also rejected Hematology-Oncology of Indiana’s argument that the attorney’s fee award violated the Medical Malpractice Act because the act limits the business’ liability to $250,000 and the combined award of damages and attorney’s fees would exceed that amount. The appellate court has previously ruled in Emergency Physicians of Indianapolis v. Pettit, 714 N.E.2d 1111, 1114 (Ind. Ct. App. 1999), that if they were to cap the fees based on the attorney’s fee award, then a party who engages in conduct that would warrant attorney’s fees could escape accountability for his conduct by alleging that the award would exceed the statutory limit.
 

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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