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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. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

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

  5. 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.

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