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.