William “Bill” Hurst, Indianapolis Wrongful Death Lawyer
The following is an analysis of a recent Indiana Supreme Court decision discussing whether attorney’s fees are available in wrongful death cases where the decedent was survived by a spouse or children. On August 27th the Supreme Court of Indiana, in SCI Propane, LLC v. Frederick, decided Indiana’s General Wrongful Death Statute (GWDS) does not provide for attorney’s fees when the decedent was survived by a spouse or children, but does when he/she is not. This may seem odd, but after a careful reading of the statutory language, former case law, and the Supreme Court’s opinion it seems to be the correct outcome.
First, it’s important to know that Indiana has three separate Wrongful Death statutes, including the GWDS, the Child Wrongful Death Statute (CWDS), and the Adult Wrongful Death Statute (AWDS) (second section). The latter two both allow for suit to be brought on behalf of a deceased individual who is unmarried and without dependents and in both attorney’s fees are provided. It had never been decided whether attorney’s fees should also be provided for under the GWDS where the decedent was survived by a spouse/child, which is the issue the Indiana Supreme Court addressed in SCI Propane v. Frederick (Supra).
First, the Supreme Court looked at the GWDS and while it determined the GWDS probably needs a makeover it “nevertheless delineates two separate categories of decedents.” These two categories are (1) those with surviving spouse/children and (2) those without. The court then went into an analysis of what damages the statute provides for each of the two categories.
The court observed that the statute allows for the estate of those who fall under the first category, those with surviving spouse/children, to recover damages for a fixed list of “death-related” expenses including medical, hospital, funeral, and burial expense. They also note that the damages here go first to the estate to pay for such expenses, and if any are left over to the surviving spouse/children.
The court then turned its attention to the second category, those with no surviving spouse/children. This section states that all damages are to go the person furnishing the services related to the decedent’s death and that said person is entitled to recover reasonable attorney’s fees in prosecuting or compromising the action. So suits brought on behalf second category of decedent’s in the GWDS clearly provide for attorney’s fees, as do the AWDS and CWDS, both of which also require the decedent have surviving spouse or child in order for suit to be brought. But what about the first category of decedents provided for in the GWDS?
The court makes it clear that any decisions rendered on whether attorney’s fees are provided for in AWDS, CWDS, and second category of the GWDS are not applicable here because the first category of decedents under the GWDS do not require there be no surviving spouse/child like the other three.
The court first discussed cases where the decedent was survived by a spouse or child and looked at the purpose of the statute and determined it was to compensate survivors who may suffer some form of loss/deprivation due to the decedent’s death. Because, the court said, attorney’s fees are not a loss that “evolve from the deprivation to a survivor” as loss of companionship or financial contributions are, they are not recoverable in a suit where the decedent is survived by a spouse or child. From here it goes on to state the GWDS is to be strictly construed as it is in derogation of the common law and based on a narrow interpretation attorney’s fees are not provided by the statute for suits brought under the first
category of GWDS. It comes to this conclusion based on the fact that according to the statute damages must be either, “(1) a “reasonable medical, hospital, funeral and burial expense” or (2) “inure to the exclusive benefit” of the surviving spouse or dependent” and in its opinions attorney’s fees are neither. More specifically, it says the list of things are what the estate may recover and beyond that it may not recover additional damages and any additional damages must be for the benefit of the surviving spouse/child, which attorney’s fees would not be since they are paid by the estate, not the surviving spouses. The court also realizes that this will likely result in a depletion of the estate and thus a smaller inheritance for the surviving spouse/child, but says this is not in the same genre of damages as those provided in the statute.
The Court ends its discussion of statutory interpretation with this quote:
“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. 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. 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.”
Well, in summary it means in cases where the decedent has no surviving spouse/children his/her estate will be able to receive attorney’s fees as part of their damages and where the decedent does have a surviving spouse/children attorney’s fees will not be available. Some have speculated that this may result in attorneys being less likely to bring wrongful death suits, but we will leave that for you to decide.