ILNews

Wrongful death statute allows for attorney fees, other costs

Back to TopE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

  4. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

ADVERTISEMENT