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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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