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Wrongful death statute allows for attorney fees, other costs

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Compensation for attorney fees and other costs can be awarded under the Adult Wrongful Death Statute, ruled a Court of Appeals panel today.

In the case relying on the interpretation of the Adult Wrongful Death Statute, the appellate court affirmed the Marion Superior Court ruling in Indiana Patient's Compensation Fund v. Beverly S. Brown, et al., No. 49A02-1001-CT-80.

Beverly S. Brown, as executor of the estate of her sister, Barbara J. Frieden, had settled a medical malpractice claim for the statutory limit after Frieden died of a heart attack. She then petitioned the Indiana Patient’s Compensation Fund for additional compensation. The trial court awarded $278,377.55, which included compensation for attorney fees, litigation costs, estate administration costs, and loss of services to their parents. The fund appealed, arguing that those damages were not authorized under the Adult Wrongful Death Statute.

Judge Terry Crone wrote the panel agrees with Hematology-Oncology of Indiana, P.C. v. Fruits, 2010 WL 3250175 at *2-4 (Ind. Ct. App. Aug. 18, 2010), and Judge Patricia Riley’s dissent in McCabe v. Comm’r, Ind. Dep’t of Ins., 930 N.E.2d 1202 (Ind. Ct. App. 2010), trans. sought. In that case, she noted that Butler v. Ind. Dep’t of Ins., 904 N.E.2d 198, 202 (Ind. 2009), reiterated that the Adult Wrongful Death Statute does allow for the recovery of damages other than those spelled out in subsections (c)(3)(A) and (c)(3)(B).

“The AWDS must be narrowly construed, but the legislature used open-ended language to describe the damages available under the statute. Decisions discussing the history and purpose of wrongful death actions, such as Kuba, have indicated that the damages should be compensatory in nature. Therefore, treble and punitive damages have been disallowed. Durham, 745 N.E.2d at 761; Kuba, 508 N.E.2d at 2,” Judge Crone wrote. “By contrast, attorney fees, probate administration costs, and litigation costs are compensatory damages that remedy actual pecuniary losses. Therefore, we find no compelling reason why these damages should not be allowed.”

The fund had argued that pecuniary damages are “categorically unavailable” under the AWDS.

“We cannot agree. Loss of services, when proved, would constitute a pecuniary loss of the type contemplated by the AWDS. Therefore, we affirm the judgment of the trial court,” Judge Crone wrote.

 

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  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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