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Widow not entitled to attorney fees in wrongful death case

September 15, 2015

Attorney fees awarded in a wrongful death suit have been overturned by the Indiana Court of Appeals weeks after the Indiana Supreme Court weighed in on the state statute’s language.

In Hoker Trucking, LLC and Linda L. Phillips v. Pamela K. Robbins, as Administratrix of the Estate of Mike Douglas Robbins, Deceased, 89A01-1411-CT-468, the Court of Appeals reversed the award of attorney fees.

Wayne Superior Court awarded Pamela Robbins $2.4 million in attorney fees and $622,028.11 in prejudgment interest. A jury awarded Robbins $6 million after her husband, Mike, was killed in a tractor-trailer accident.

However, in overturning the recovery of attorney fees, the Court of Appeals pointed to the case of first impression decided by the Indiana Supreme Court, SCI Propane, LLC, et al. v. Frederick, ---N.E.3d ---- (Ind. Aug. 27, 2015). The Supreme Court found the wrongful death statute allows for attorney fees in the child wrongful death provision (Indiana Code 34-23-2-1) but  not in the adult wrongful death section (I.C. 34-23-1-2).

Still, the Court of Appeals noted its decision in McCabe v. Commissioner, Indiana Department of Insurance, 949 N.E.2d 816, 819-21 (Ind. 2011) which held the phrase in the adult wrongful death provision - “may include but are not limited to” – does allow for the recovery of attorney fees.

“Even though similar language – ‘may include but are not limited to’ – is included in the first category of the (General Wrongful Death Statute), our supreme court reached the opposite conclusion in SCI Propane based on the distinct application and remedies afforded to the first category of decedents under the GWDS, i.e. those survived by a spouse and/or dependents,” Judge Patricia Riley wrote. “…Accordingly, where, as here, Robbins as the surviving widow, pursues the recovery of attorneys’ fees as compensatory damages under the first category of the GWDS, she is not entitled to an award thereof.”

 

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