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by: Colin E. Flora
Our first topic for discussion takes us back to a topic we have discussed before which is the availability of costs and fees in actions for wrongful death. We previously discussed the decision from the Court of Appeals of Indiana in SCI Propane, LLC v. Frederick, which initially held that Indiana’s General Wrongful Death Statute permitted recovery of costs and fees. On transfer to the Indiana Supreme Court, that decision was overturned, with the state’s highest court holding that costs and fees are not available under the GWDS.
This week, our focus turns to one of the other two wrongful death statutes in Indiana. In addition to the GWDS there are the Adult Wrongful Death Statute and the Child Wrongful Death Statute. The three statutes cover three different scenarios. As you might expect, the CWDS applies to the deaths of children. For the CWDS, “children” is defined as an unmarried person without dependents who is less than twenty years of age or less than twenty-three years of age if enrolled in postsecondary education or technical school. The AWDS applies to unwed adults who have no dependents. And the GWDS applies to everyone else.
So we have seen in SCI Propane that costs and attorney fees cannot be recovered under the GWDS. In McCabe v. Commissioner, Indiana Department of Insurance, the Indiana Supreme Court determined that costs and fees could be recovered under the AWDS. That left the CWDS as the one remaining open question. This past week, the Court of Appeals of Indiana endeavored to answer that question in Angel Shores Mobile Home Park, Inc. v. Crays.
Our discussion should begin in the same place that all discussions of statutory interpretation should begin: the text of the statute. In relevant part, the CWDS states:
(f) In an action to recover for the death of a child, the plaintiff may recover damages:
(1) for the loss of the child's services;
(2) for the loss of the child's love and companionship; and
(3) to pay the expenses of:
(A) health care and hospitalization necessitated by the wrongful act or omission that caused the child’s death;
(B) the child’s funeral and burial;
(C) the reasonable expense of psychiatric and psychological counseling incurred by a surviving parent or minor sibling of the child that is required because of the death of the child;
(D) uninsured debts of the child, including debts for which a parent is obligated on behalf of the child; and
(E) the administration of the child’s estate, including reasonable attorney’s fees.
* * * * *
(j) This section does not affect or supersede any other right, remedy, or defense provided by any other law.
But, as we will see, that is not the only statutory text that matters. For that, we need to also look at the GWDS:
When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission. When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years, and the damages shall be in such an amount as may be determined by the court or jury, including, but not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission. That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedent’s estate for the payment thereof. The remainder of the damages, if any, shall, subject to the provisions of this article, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased. [SECOND CATEGORY] If such decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him, the damages inure to the exclusive benefit of the person or persons furnishing necessary and reasonable hospitalization or hospital services in connection with the last illness or injury of the decedent, performing necessary and reasonable medical or surgical services in connection with the last illness or injury of the decedent, to a funeral director or funeral home for the necessary and reasonable funeral and burial expenses, and to the personal representative, as such, for the necessary and reasonable costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney’s fee, and in case of a death under such circumstances, and when such decedent leaves no such widow, widower, or dependent children, or dependent next of kin, surviving him or her, the measure of damages to be recovered shall be the total of the necessary and reasonable value of such hospitalization or hospital service, medical and surgical services, such funeral expenses, and such costs and expenses of administration, including attorney fees.
As a heads up, I added “[SECOND CATEGORY]” into the text above for reasons that will soon become clear.
In trying to answer the question, unsurprisingly, each side looked to either McCabe or SCI Propane, depending on which result it preferred. The Court of Appeals, first looked to McCabe to see how the Indiana Supreme Court found fees and costs could be recovered under the AWDS:
The McCabe Court acknowledged that the AWDS lacked explicit language providing for an award of attorney’s fees. Looking to the relationship between the GWDS and the AWDS, however, the McCabe Court reasoned that the statute’s provision that damages “may include but are not limited to” those specifically mentioned could be construed to permit the recovery of attorney's fees, especially where such an award was permitted under the GWDS. To support that conclusion, the Court relied on the principle of statutory interpretation “that two statutes that apply to the same subject matter must be construed harmoniously if possible,” which “takes precedence over other rules of statutory interpretation.” The court continued:
The structure of the AWDS does not parallel that of the GWDS in creating a new statutory cause of action, but it appears to focus upon the mere amplification of damages allowed by the GWDS to include the loss of the adult person's love and companionship in the narrow class of actions for the wrongful death of an unmarried adult without dependents. The AWDS also specifically designated only two types of damages that could not be recovered: punitive damages and “damages awarded for a person's grief.” If the legislature had desired the AWDS to exclude elements of damages expressly included in the GWDS, this would seem the most likely way to have ensured such objective. Significantly, the General Assembly designated the GWDS as Section 1 and the AWDS as Section 2 of Chapter 1 addressing “Wrongful Death Generally.”
The Court then concluded: “Considering the GWDS and the AWDS in pari materia and warranting harmonious interpretation, we find that the phrase ‘may include but are not limited to’ in the AWDS includes the availability of attorney fees and all other elements of damages permitted under the GWDS.”
The court then turned its focus to SCI Propane to understand why the GWDS does not permit recovery of costs and fees:
In SCI Propane, our Indiana Supreme Court addressed whether the GWDS permitted recovery of attorney’s fees “as a form of damages when the decedent is survived by a spouse and/or dependents.” The Court determined the GWDS delineates two separate categories of decedents:
The first category includes all decedents generally, without any additional conditions, in which case the estate is entitled to recover damages “including, but not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission.” There is a fixed list of death-related expenses available to the estate directly as damages: “medical, hospital, funeral and burial[.]” The remaining damages, if any, must “inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased.”
The second category includes only those decedents who “depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him.” In such instances, the damages “inure to the exclusive benefit of the person or persons furnishing” services related to the decedent's death, and the personal representative of the estate is expressly entitled to recover reasonable attorneys’ fees in “prosecuting or compromising the action.”
The Court noted the AWDS and the CWDS require the deceased to be unmarried and without dependents, and thus, “every decedent in the second GWDS category also satisfies the conditions to bring suit under either the AWDS or the CWDS.” The Court acknowledged its earlier decision in McCabe and concluded that the McCabe decision dealt with those in the second category of decedents. Because the plaintiff in SCI Propane was the widow of the deceased and the personal representative of his estate, the court concluded that her claim fell within the first category of decedents under the GWDS. Thus, the court held that Frederick, as a widow of the deceased, was not entitled to an award of attorney's fees under the GWDS.
This takes us back to the CWDS. The text of the CWDS makes specific reference to the attorney fees: “In an action to recover for the death of a child, the plaintiff may recover damages: (3) to pay the expense of: (E) the administration of the child’s estate, including reasonable attorney’s fees.” The defendant argued that this language strictly applied to appointment of a personal representative, which is not required if a custodian or parent of the child is alive. The plaintiffs–the parents of the deceased child–argued that like the AWDS, “the CWDS amplifies the remedies provided by the GWDS, and that because they fall within the second category of the GWDS, as set forth in SCI Propane, they are entitled to attorney fees separate from the award of compensatory damages.” The Court of Appeals agreed with the parents.
Now let’s take a step back and understand what the court said. The key is the way the statutes are written. The GWDS is called General for a reason. It is captioned in the statute “Death from wrongful act or omission.” The AWDS is titled “Wrongful death actions; damages.” You may notice that neither of those titles directly corresponds with the titles courts apply. The reason the AWDS is called that is because the AWDS deals entirely with what it defines in the first subsection as “adult persons.” The GWDS does not have such definitions. Instead, it is a single big block that sets out the overview of wrongful death actions. What became the GWDS was first enacted in 1881. By contrast, the AWDS was enacted in 1999 and the CWDS in 1998.
The Indiana Supreme Court has looked at the GWDS as providing an overarching structure to wrongful death actions with the AWDS and, now, the CWDS being designed to provide special scenarios for applying the GWDS. So how do we get to the attorney fees for the AWDS and CWDS but not the GWDS? The answer lies in that split I added to the text above. When viewed through the lens of history, you can see that the GWDS includes two separate categories. The first is the general category of any decedent–“the death of one is caused by the wrongful act or omission of another[.]” But halfway through, there is an additional qualifier, “[i]f such decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him[.]”
That second category is where the statute says that attorney fees are available. So why, then, does the second category apply to the AWDS and CWDS? That is because by the terms of both, the decedent must have no dependents and must not be wed. That means the person meets the definition of that second category. Indeed, the only people who meet that second category are the persons who fall under either the AWDS or the CWDS.
There was one final, quite interesting, question to be answered. Under Indiana’s comparative fault structure, it is entirely possible for a defendant to be allocated a portion of fault less than 100%. That is what happened here. The defendant was a holdout when others settled. The case went to trial and the lone remaining defendant was held to be 5% liable. The problem was that it was the only defendant left. The statute allowed the plaintiff to recover its fees and costs. Should, then, the defendant who was only 5% at fault be allowed to reduce its obligation for fees and costs to its pro rata share despite the fact that it is the only reason that the case went to trial? The Court of Appeals said no. The court decided that litigation expenses should be taxed in full at the end of the litigation. Doing so, the court found, would serve important purposes:
This result also serves the important policy interest of encouraging settlement, on the one hand, and discouraging litigation against parties who should properly be released, on the other. By ensuring that expenses may be taxed in full at the end of the litigation, defendants will be encouraged to settle so that they can negotiate the extent of their exposure to litigation expenses, rather than having them imposed by the court. Plaintiffs will be encouraged to dismiss parties whose presence in the litigation is unnecessary, because there is assurance that the recovery of expenses will not be diminished simply because a party was released from the litigation before the case was resolved by a court or jury.
If history can be our guide, SCI Propane and McCabe each suggest that Angel Shores will find its way to the Indiana Supreme Court before it is through. I think the Indiana Supreme Court will agree with the Court of Appeals on this one, thereby finally closing the book on the questions of the AWDS, GWDS, and CWDS as to attorneys fees and costs.
Join us again next time for further discussion of developments in the law.
Contrary to my assumption that this case would end up before the Indiana Supreme Court, transfer was not sought and the decision of the Court of Appeals has been certified to the trial court. As a result, the decision is now binding precedent in the state of Indiana.
- SCI Propane, LLC v. Frederick, 15 N.E.3d 1015 (Ind. Ct. App. Aug. 13, 2014) (Pyle, J.), rev'd on trans., 39 N.E.3d 675 (Ind. 2015) (Massa, J.).
- McCabe v. Comm’r Ind. Dep’t Ins., 949 N.E.2d 816 (Ind. 2011) (Dickson, J.).
- Angel Shores Mobile Home Park, Inc. v. Crays, 78 N.E.3d 718 (Ind. Ct. App. 2017) (May, J.).
- Indiana General Wrongful Death Statute, codified at Ind. Code § 34–23–1–1.
- Indiana Adult Wrongful Death Statute, codified at Ind. Code § 34–23–1–2.
- Indiana Child Wrongful Death Statute, codified at Ind. Code ch. 34–23–2.
- Colin E. Flora, Does Indiana’s General Wrongful Death Statute Permit Recovery of Attorney Fees? Court Says, ‘Yes’, Hoosier Litig. Blog (Aug. 15, 2014).
- Colin E. Flora, Damages Pt. 5: Assessing Damages When Injured Person is Partially at Fault, Hoosier Litig. Blog (May 11, 2012).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.