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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

ADVERTISEMENT