COA panels divided on attorney’s fees under AWDA

Nearly a month after an Indiana Court of Appeals panel ruled attorney’s fees aren’t recoverable under the Adult Wrongful
Death Act in a matter of first impression, another panel unanimously ruled they are recoverable.

A split court ruled July 20 in Jeffery H. McCabe, As Representative of the Estate of Jean Francis McCabe, Decedent v. Commissioner, Indiana
Department of Insurance as Administrator of the Indiana Patient’s Compensation Fund
, No. 49A02-0908-CV-728,
that the “may include but are not limited to” language in the Adult Wrongful Death Act doesn’t allow for
attorney’s fees. The majority ruled such a result would similarly “expand the circumscribed damages defined by
the general assembly.” They relied on Butler v. Ind. Dept. of Ins., 904 N.E.2d 198 (Ind. 2009), which held
this language in the AWDA doesn’t expand the class of such necessitated expenses nor direct the expansion of the circumscribed
damages defined in the statute.

But Judges Melissa May, L. Mark Bailey, and Michael Barnes concluded otherwise today in Hematology-Oncology of Indiana, P.C. v. Hadley W. Fruits, Personal Rep. for the Estate of Elizabeth Ann
, No. 49A05-0910-CV-556. The judges believed that Kuba v. Ristow Trucking Co., 508 N.E.2d 1, 2 (Ind.
1987), instructs that the “may include but are not limited to” language allows for other categories of compensatory
damages, like attorney’s fees. The Kuba ruling took the view that although the legislature left open the statute
to allow for other damages, these damages must be compensatory.

And attorney’s fees have been found to be in the nature of compensatory instead of punitive damages, wrote Judge May.

The judges also rejected Hematology-Oncology of Indiana’s argument that the attorney’s fee award violated the
Medical Malpractice Act because the act limits the business’ liability to $250,000 and the combined award of damages
and attorney’s fees would exceed that amount. The appellate court has previously ruled in Emergency Physicians of
Indianapolis v. Pettit
, 714 N.E.2d 1111, 1114 (Ind. Ct. App. 1999), that if they were to cap the fees based on the attorney’s
fee award, then a party who engages in conduct that would warrant attorney’s fees could escape accountability for his
conduct by alleging that the award would exceed the statutory limit.

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