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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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