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Indiana Supreme Court Rules on Attorney Fees Under Indiana's Wrongful Death Statute


By Anthony Holton

October 20, 2015

The Indiana Supreme Court issued a much-anticipated decision holding that attorneys’ fees are not recoverable as a type of damages under Indiana’s General Wrongful Death Statute if the decedent is survived by a spouse and/or children or next of kin.

Generally speaking Indiana courts follow the “American Rule” where each party to a lawsuit is responsible to pay his or her own attorneys’ fees, marking a part of our country’s break from the English legal system.  The American Rule applies unless there is a contract or statute shifting the burden of attorneys’ fees to one party or another.  Two categories of Indiana wrongful death cases provide for shifting of attorneys’ fees: (i) where the decedent is not survived by a spouse and/or dependents; and (ii) where the decedent is a child, survived by a parent or guardian to pursue legal action.

The Indiana Supreme Court in SCI Propane, LLC v. Frederick, 2015 WL 5076751 (Ind. 2015) reviewed the issue of whether attorney fees are shifted where the decedent is survived by a spouse and/or dependents under Indiana’s General Wrongful Death Statute (“GWDS”), Ind.Code § 34-23-1-1.  The GWDS provides an avenue for the personal representative of an Estate to file a wrongful death lawsuit when a loved one dies by the wrongful actions of another.  In these cases the survivor can seek damages, “including, but not limited to” medical, hospital, funeral and burial expenses, in addition to other further damages which “inure to the exclusive benefit” of the survivors .  Ind.Code § 34-23-1-1.

Frederick decided whether the ambiguous phrase “including, but not limited to” incorporates attorneys’ fees as damages.  Frederick is a tragic case involving a gas leak that caused a house fire and explosion, resulting in the death of Stephan Frederick, survived by his wife and son.  Frederick’s Estate filed a wrongful death lawsuit against SCI Propane under the GWDS.  The trial court allowed the Estate to recover attorneys’ fees as a part of its award, which was affirmed by the Indiana Court of Appeals.  The Supreme Court reversed, holding that attorneys’ fees are not recoverable under the GWDS when the decedent is survived by a spouse and/or dependent children or next of kin.

The Court held against fee-shifting under the GWDS because attorneys’ fees are not damages sustained directly by the survivors who pursue the claim; rather, the Estate itself pays for the attorneys’ fees, and as such the survivors should not recoup these fees as part of any award.  In other words, the burden of attorneys’ fees “do not evolve from a deprivation to a survivor,” and the survivors should not recover damages which were ultimately borne by the Estate.      

The impact of Frederick is that total exposure to defendants will not increase when providing a vigorous defense of wrongful death claims pursued by a decedent’s spouse and/or dependents.  This holding marks a victory for defense representation, as wrongful death plaintiffs can incur significant attorneys’ fees.  If you have any questions regarding the Frederick decision, or wish a copy of the opinion, or have any other question regarding general liability and damages, please call one of our General Liability/Excess and Surplus Risk Practice Group members. 

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.