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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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