Award of attorney fees in wrongful death depends on existence of survivors

Marilyn Odendahl for www.theindianalawyer.com

In a case of first impression, the Indiana Supreme Court said it was “neither absurd nor contrary to public policy” to find the state’s General Wrongful Death Statute provides different damage awards depending on survivors.

The question of damages arose in a wrongful death claim Courtney Frederick filed on behalf of the estate of her deceased husband, Stephan, against SCI Propane LLC and others. After a jury apportioned 65 percent of the liability to the defendants, the estate moved for partial summary judgment, seeking attorney fees under the Indiana’s General Wrongful Death Statute.

The trial court granted the motion and the Indiana Court of Appeals affirmed.

However, the Indiana Supreme Court reversed in SCI Propane, LLC; South Central Indiana Rural Electric Membership Corp.; Rush Shelby Energy Rural Electric Cooperative, Inc. v. Courtney Frederick, as Personal Representative of the Estate of Stephan Frederick, Deceased, 55S04-1508-PL-501. The five justices ruled the 50-year-old statute does not allow for attorney fees when the decedent is survived by a spouse and/or children.

Reviewing the General Wrongful Death Statute, the Supreme Court noted it divides into two separate categories of decedents – those with survivors and those without.

The second category (deceased individuals who have no survivors) was addressed in McCabe v. Commissioner, Indiana Department of Insurance, 949 N.E.2d 816, 819-21 (Ind. 2011). Here the justices looked at the wrongful death statute in conjunction with the state’s Adult and Child Wrongful Death statutes which both apply to decedents who are unmarried and without dependents. The Supreme Court determined under the doctrine of in pari material, the language in the second category of the wrongful death statute and in the adult and child statutes indicate attorney fees are recoverable.

But in Frederick’s claim, the first category of the wrongful death statute applies. The justices note the statute allows for damages for medical and funeral expenses or for the benefit of the survivors. Taking a narrow reading, the Supreme Court concluded attorney fees do not qualify as damages.

“This outcome is neither absurd nor contrary to public policy. The existence of a surviving spouse or dependent of a decedent creates a significant incentive for the personal representative of the estate to pursue a wrongful death claim for the benefit of the survivors, who were perhaps financially dependent upon the decedent and could face significant hardship without his or her income,” Justice Mark Massa wrote for the court.
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“In the absence of such survivors, however, the only “party” arguably damaged as a matter of law is the decedent, and thus the estate itself,” Massa continued. “It is therefore logical that our General Assembly would provide extra incentive—in the form of statutory fee awards—to personal representatives prosecuting such actions, in order to ensure that those who commit acts resulting in a wrongful death are held liable, which further encourages such actors to avoid that wrongful conduct in the future.”