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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. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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