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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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