Court of Appeals Disagrees over Availability Attorney Fees under Adult Wrongful Death Statute
Wrongful Death
August 18, 2010
Less than a month ago, we brought you this report about McCabe v. Commissioner, Ind. Dept. of Insurance, a split-decision by the Indiana Court of Appeals, which held that attorney's fees were not authorized under the Adult Wrongful Death Statute ("AWDS"), Indiana Code § 34-23-1-2. As we described in our prior post, McCabe recognized that it expressly disagreed on this issue with the decision in Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846, 848 (Ind. Ct. App. 2009), a decision penned by the dissenting judge in McCabe. Today, a separate panel of the Indiana Court of Appeals reached precisely the opposite conclusion in Hematology-Oncology of Indiana, P.C. v. Fruits, Case No. 49A05-0910-CV-556.
Lessons:
Less than a month ago, we brought you this report about McCabe v. Commissioner, Ind. Dept. of Insurance, a split-decision by the Indiana Court of Appeals, which held that attorney's fees were not authorized under the Adult Wrongful Death Statute ("AWDS"), Indiana Code § 34-23-1-2. As we described in our prior post, McCabe recognized that it expressly disagreed on this issue with the decision in Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846, 848 (Ind. Ct. App. 2009), a decision penned by the dissenting judge in McCabe. Today, a separate panel of the Indiana Court of Appeals reached precisely the opposite conclusion in Hematology-Oncology of Indiana, P.C. v. Fruits, Case No. 49A05-0910-CV-556.
Lessons:
- There is no clear appellate authority on the issue of whether attorney's fees should be awarded under the Adult Wrongful Death Statute. Expect the Indiana Supreme Court to grant transfer to address this issue soon.
