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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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