July 1, 2011

Last year, the Indiana Court of Appeals issued a series of opinions that disagreed over whether a plaintiff could receive attorney's fees under the Adult Wrongful Death Statute. On June 29, 2011, the Indiana Supreme Court resolved that dispute in a trilogy of 3-2 cases, McCabe v. Commissioner, Indiana Dept. of Ins., ___ N.E.2d ___ (Ind. 2011), Hematology-Oncology of Indiana, P.C. v. Fruits, ___ N.E.2d ___ (Ind. 2011), and Indiana Patient's Compensation Fund v. Brown, ___ N.E.2d ___ (Ind. 2011). In those cases, the Court has held that attorney's fees and expenses are recoverable under the AWDS.

The Court admitted that the AWDS did not specifically provide for the payment of attorney's fees and expenses. However, the statute provided that damages "include but are not limited to" two particular forms of damages. Because the attorney's fees were not specifically excluded, they were included.

The dissent argued that the Court should read the American Rule into the statute and only determine that attorney's fees are available if the statute specifically says that they are. The Court's failure to adopt this line of thought will certainly lead counsel to scour other provisions of the code for statutory authority for an award of attorney's fees under this mode of analysis. Then again, the legislature may keep these decisions in mind when crafting legislation in the future.

Lesson:

1. Attorney's fees and expenses are available when statute provides for all damages "including but not limited to" specific categories of damages, unless the statute excludes attorney's fees and expenses.

October 27, 2010

We've brought you a series of posts here, here, and here regarding a dispute within the Indiana Court of Appeals regarding the availability of attorney's fees under the Adult Wrongful Death Statute (AWDS). To quickly summarize, one panel of the Court of Appeals found that attorney's fees were recoverable under the statute(Hillebrand), a divided panel in another case (McCabe) disagreed, and two later decisions (Hematology-Oncology of Indiana and Brown) expressed their agreement with the first decision.

The Indiana Supreme Court's transfer dispositions from October 22, 2010 (available here) granted transfer in McCabe, the sole case that held that attorney's fees are not available under the AWDS.

September 17, 2010

Recently, we have brought you reports (here and here) about a dispute within the Indiana Court of Appeals over the availability of attorney's fees under Indiana's Adult Wrongful Death Statute ("AWDS"). Today, the Court added a new chapter to that story in Indiana Patient's Compensation Fund v. Brown, 934 N.E.2d 168 (Ind. Ct. App. 2010), Case No. 49A02-1001-CT-80.
UPDATE
As we we discuss here, the Indiana Supreme Court has granted transfer in McCabe.

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, 932 N.E.2d 698 (Ind. Ct. App. 2010), Case No. 49A05-0910-CV-556.
Lessons:

1. 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.
   

July 20, 2010

In McCabe v. Commissioner, Ind. Dept. of Insurance, 930 N.E.2d 1202 (Ind. Ct. App. 2010), 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."
Lessons:

1. 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.
2. Always read statutes in pari materia; never base an argument on a single statutory phrase.

UPDATE
As we we discuss here, the Indiana Supreme Court has granted transfer in this case on October 21, 2010.