COA: Attorney Fees And Litigation Costs Allowed In Child’s Wrongful Death
Marilyn Odendahl for www.theindianalawyer.com
In a case of first impression, the Indiana Court of Appeals upheld the award of attorney fees in a child’s wrongful death case.
John and Megan Crays filed a wrongful death suit after their 13-year-old son was electrocuted and died while swimming. The couple who owned the pool reached a settlement with the Crays but the manufactured housing community where the tragedy occurred, Angel Shores Mobile Home Park in Tippecanoe County, proceeded to a jury trial.
In March 2014, the jury found for the plaintiffs with total damages at $3 million and 5 percent fault allocated to Angel Shores, resulting in the verdict amount of $150,000. Afterwards, the Crays filed a motion and the trial court awarded attorney fees for the sum of $60,000 and litigation costs at $72,864.85. This brought to total judgment to $282,864.85.
Angel Shores appealed, arguing the Indiana Child Wrongful Death Statute, Indiana Code 34-23-2-1, does not include a provision for the attorney fees and litigation expenses.
The Court of Appeals disagreed and upheld the award in Angel Shores Mobile Home Park, Inc. v. John Crays and Megan Crays, 79A02-1605-CT-1106, citing McCabe v. Commissioner, Indiana Dept. of Insurance, 949 N.E.2d 816 (Ind. 2011) and SCI Propane, LLC v. Frederick, 39 N.E.3d 675 (Ind. 2015), which examined the language in Adult Wrongful Death Statute and the General Wrongful Death Statute.
“As the plain language of the CWDS allows for other remedies as provided by law, and the second category of the GWDS provides for attorney’s fees, it is logical to construe the two in harmony, and conclude that a party filing an action under the CWDS, like a party filing an action under the AWDS, is entitled to attorney’s fees under the second category of the GWDS,†Judge Melissa May wrote for the court.
