July 20, 2010
In
McCabe v. Commissioner, Ind. Dept. of Insurance, decided by the Indiana Court of Appeals on July 20, 2010, a divided court disagreed with a prior panel and held that "attorney fees and expenses incurred by the personal representative‟s attorney are not recoverable damages under the Adult Wrongful Death Statute."
less..
The majority knowingly disagreed with in
Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846, 848 (Ind. Ct. App. 2009), which had reached the opposite conclusion. Put simply, the
McCabe court found that although the general wrongful death statute and the statute pertaining to the wrongful death of children specifically provided for the award of attorney fees,
Indiana Code § 34-23-1-2, the Adult Wrongful Death Statute ("AWDS"), did not and that the Legislature's use of the phrase “include but not limited to” when describing recoverable damages did not expand the class of these damages to include attorney fees.
This case will be of particular attention to attorneys who litigate wrongful death cases, for obvious reasons. However, its lessons are deeper than that. Of particular note is the Court's description of its reasons why it would not harmonize all of the wrongful death statutes.
McCabe argues that our court should hold otherwise because allowing for the recovery of reasonable attorney fees and expenses would produce a harmonious result between the GWDS, AWDS, and CWDS. As is noted above, the GWDS and the CWDS unambiguously allow recovery of attorney fees and expenses for the administration of the wrongful death estate, while the AWDS does not. While we acknowledge that this inconsistency is troubling, we believe such inconsistency is the result of public policy considerations that are the prerogative of the General Assembly.
Thus, Judges Mathias and Bradford deferred to the intent of the legislature despite the fact that they found this result "troubling" and an earlier appellate opinion on the topic made a contrary conclusion. This gives us an insight into the jurisprudence of these judges, which can be used both in arguments to them and to trial courts in Indiana.
Lessons:
- If you have a strong statutory construction argument based on the language in the statute, do not be afraid to make this argument, even if an appellate decision indicates that the Court will reach a contrary conclusion.
- Always read statutes in pari materia; never base an argument on a single statutory phrase.
Trackback Address :: http://www.indianalawupdate.com/Blog/trackback/33
