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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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