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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. 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.

  3. 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

  4. 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

  5. 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

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