Justices split on recovery of attorney fees under Adult Wrongful Death Statute

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The Indiana Supreme Court issued three opinions June 29 dealing with what fees are recoverable under the Adult Wrongful Death Statute, holding that attorney fees, litigation expenses, and loss of services can be recovered. Chief Justice Randall T. Shepard and Justice Robert Rucker dissented in each decision, believing that those fees aren’t allowed under the statute.

The justices granted transfer to the three decisions in which separate Indiana Court of Appeals panels had reached opposite conclusions. In Jeffery H. McCabe v. Commissioner, Indiana Dept. of Insurance, No. 49S02-1010-CV-602, the trial court and intermediate appellate court granted partial summary judgment to the Indiana Department of Insurance on Jeffery McCabe’s attempt to recover attorney fees under the Adult Wrongful Death Statute, Indiana Code 34-23-1-2, following the death of his mother.

The high court focused in on the language in the statute “may include but are not limited to” regarding what damages may be recovered. They noted that the General Assembly designated the General Wrongful Death Statute as Section 1 of I.C. 34-23-1, and the AWDS as Section 2 of Chapter 1 addressing wrongful death generally. The GWDS permits recovery of attorney fees and expenses.

“Considering the GWDS and the AWDS in pari materia and warranting harmonious interpretation, we find that the phrase 'may include but are not limited to' in the AWDS includes the availability of attorney fees and all other elements of damages permitted under the GWDS,” wrote Justice Brent Dickson for the majority.

In his dissent, in which Justice Rucker joined, Chief Justice Shepard wrote that he believed two straightforward principles should have led the court to uphold the decision of the trial judge. The “American Rule” should apply, as the General Assembly did not include the term “attorney fees” in the statute at issue. Also, a statute in derogation of common law must be strictly construed, the chief justice wrote, quoting Justice Dickson’s dissent in Giles v. Brown County ex rel. its Bd. Of Comm’rs, 868 N.E.2d 478, 482 (Ind. 2007), “statutes authorizing recovery for wrongful death, of course, are undeniably in derogation of the common law.”

In Hematology-Oncology of Ind., P.C. v. Hadley W. Fruits, et al., No. 49S05-1106-CV-387, the majority affirmed the award of attorney fees and litigation expenses brought under the Adult Wrongful Death Statute. They held those fees are recoverable under the statute but the provider’s aggregate liability should be limited to the $250,000 cap prescribed by the Medical Malpractice Act. The majority remanded the case to limit the aggregate judgments against Hematology-Oncology of Indiana to a total of $250,000 for the jury’s damage award plus a portion of the plaintiff’s attorney fees.

In Indiana Patient's Compensation Fund v. Beverly S. Brown, No. 49S02-1106-CT-388, the majority affirmed that expenses of administration, contingent attorney fees, and loss of services are recoverable under the AWDS. Those are compensatory damages that remedy actual pecuniary losses, so there’s no reason why these damages shouldn’t be allowed, Justice Dickson wrote, citing the Court of Appeals decision in the case.

Chief Justice Shepard and Justice Rucker dissented again in Fruits and Brown. The chief justice wrote in his Brown dissent that holding that the statute affords recovery for “loss of services” by dependants is contrary to the language of the code and “oxymoronic.”

“This does not mean, of course, that a parent cannot recover damages for the loss of an adult child; it does mean that where recovery for loss of services is a crucial element of the claim the claimant should proceed under the General Wrongful Death Statute,” he wrote.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.