Justices: Survivors cannot recover attorney fees

The ambiguous phrase, “including but not limited to” in the state’s wrongful death statutes has again caught the attention of the Indiana Supreme Court, but this time the justices cautioned against broad interpretation.

In SCI Propane, et al. v. Courtney Frederick, as personal representative of the Estate of Stephan Frederick, Deceased, the justices ruled Aug. 27 that attorney fees are not recoverable when the decedent leaves behind a spouse and/or dependents. Central to the decision was the language of the statute and, specifically, the ambiguous phrase.

The justices in SCI Propane focused on the state’s General Wrongful Death Statute, Indiana Code 34-23-1-1, which pertains to victims who are survived by family. Under Section 1, the damages may include “but (are) not limited to” medical and burial expenses as well as lost earnings. The recoverable damages left after the expenses have been paid must be used for the “exclusive benefit” of the spouse and children.

Writing for the court, Justice Mark Massa reasoned attorney fees do not qualify as damages because the estate has the burden of paying for the legal assistance. The attorney fees are not “the same genre” as the damages defined in the statute.

The plaintiffs and defense bars took special note of the opinion because it clarified the issue of attorney fees and survivors.

In a series of rulings in 2011 dubbed the McCabe trilogy, the Supreme Court tackled the question of whether attorney fees were recoverable when the decedent had no spouse or dependents. The justices examined the Adult Wrongful Death Statute, I.C. 34-23-1-2, which amplifies the second part of the General Wrongful Death Statute.

Johnson

There the Supreme Court held the wording “may include but not limited to” in the AWDS did allow for attorney fees even though fees are not specifically identified in the measure. However, the second part of the General Wrongful Death Statute and the Child Wrongful Death Statute do mention attorney fees. The justices maintained the statutes should be read in harmony, so they ruled the AWDS does enable the estate to collect attorney fees.

“I think they made it pretty clear,” said plaintiffs’ attorney Robert Johnson of Johnson Jensen LLP. “McCabe is going to stand but attorney fees are not recoverable in cases with spouses and dependents.”

Kightlinger Gray LLP partner Matthew Bruno agreed.

Bruno

Allowing attorney fees in the wrongful deaths of adults who have no dependents will provide an incentive for lawyers to take these cases, Bruno said. Getting a third of the recoverable damages for medical and burial costs might not provide enough compensation for prosecuting the lawsuit.

Recovery for a child’s death

Left unsettled is when attorney fees are available in the wrongful death of a child. The state’s Child Wrongful Death Statute will be the next measure for the Indiana Supreme Court to consider, attorneys said.

Under this statute, I.C. 34-23-2-1, there is a list of the specific damages a plaintiff may recover. Bruno described it as an “exhaustive list” that allows damages to pay the expenses of “the administration of the child’s estate, including reasonable attorney’s fees.”

Bruno reads this provision as limiting the recovery of attorney fees only to the estate administration, although he concedes most children would not have large estates, if any at all.

However, in SCI Propane, the Supreme Court seemed to expand this provision by suggesting attorney fees are recoverable for prosecuting a child’s wrongful death action. The basis for the reasoning is children fall under the second section of the General Wrongful Death Statute of being a decedent with no dependents and, therefore, attorney fees are available.

“This is going to be the next battle ground,” Bruno said.

‘But not limited to’

Around the same time as SCI Propane was winding its way through the courts, the question of attorney fees arose in another wrongful death case involving a decedent with a spouse.

In Hoker Trucking, LLC, and Linda L. Phillips v. Pamela K. Robbins, as the Administratrix of the Estate of Mike Douglas Robbins, Deceased, 89A01-1411-CT-00468, the parties disputed the award of attorney fees to the plaintiff in the amount of $2.4 million along with prejudgment interest of $622,028.11.

The Indiana Court of Appeals issued its ruling in SCI Propane in August 2014. In a 25-page opinion, the unanimous panel found attorney fees are recoverable when a victim in a wrongful death action leaves behind family. The Court of Appeals pointed to the McCabe trilogy and held “it would be illogical for the (General Wrongful Death Statute) to preclude recovery of attorney fees for only one category of decedents while recovery is allowed in every other wrongful death action.”

In April 2015 when Hoker Trucking was fully briefed, the Court of Appeals decision in SCI Propane was prevailing.

Michael Terwilliger, attorney at the Whitten Law Office in Valparaiso, represented the trucking company. His brief was unequivocal that SCI Propane was wrongly decided and attorney fees are not proper in wrongful deaths with surviving kin.

Pointing out that only the second section of the GWDS mentions attorney fees, Terwilliger argued if the Legislature had intended for everybody to recover these types of expenses, there would have been no reason to only put the language in one part. Instead, the Indiana General Assembly limited attorney fees only to estates with no survivors.

Terwilliger noted more than 140 statutes and 600 administrative regulations use the language “including but not limited to.” Since the Court of Appeals panel ruled that phrase indicated attorney fees were recoverable, parties in other types of disputes could have cited SCI Propane and made the argument they were entitled to attorney fees.

“It had the potential of opening all sorts of claims for attorney fees in other statutes that included the language ‘but not limited to,’” Terwilliger said.

However, weeks before the Court of Appeals ruled in Hoker Trucking, the Supreme Court decided SCI Propane. Accordingly, the appellate panel found Pamela Robbins was not able to recover attorney fees.

“Even though similar language – ‘may include but are not limited to’ – is included in the first category of the GWDS, our supreme court reached the opposite conclusion in SCI Propane based on the distinct application and remedies afforded to the first category of decedents under the GWDS, i.e., those survived by a spouse and/or dependents,” Judge Patricia Riley wrote.

Counsel for Robbins, Frederick Crow of Young & Young, declined to discuss the Court of Appeals decision. He said he is still reviewing the ruling and has not determined the next step, which could include asking for a rehearing or transfer to the Supreme Court.

As the courts review the wrongful death statutes, Terwilliger said the Statehouse could provide some guidance.

“The Legislature could easily put a stop to it by taking a hard look at the statute and making the language less ambiguous,” he said. “I can say from the perspective of attorneys looking at the different statutes, it is confusing. Seems to me with a little better draftsmanship, we could alleviate that confusion.”•