A recent unanimous Indiana Supreme Court decision held that attorneys’ fees are not recoverable as damages under the General Wrongful Death Statute (GWDS) when the decedent is survived by a spouse and/or dependents. 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, No. 55S04-1508-PL-501.
The GWDS is one of Indiana’s three wrongful death provisions, the others being the Child Wrongful Death Statute (CWDS) and the Adult Wrongful Death Statute (AWDS). The CWDS expressly provides for the recovery of attorneys’ fees. The AWDS does not expressly provide for attorney fees, but was interpreted to provide for attorneys’ fees in McCabe v. Commissioner, Indiana Department of Insurance, 949 N.E.2d 816, 819-21 (Ind. 2011). In SCI Propane, the Court distinguishes between two categories of decedents covered by the GWDS:
- All decedents generally; and
- Those decedents who leave no surviving spouse and/or dependents.
Attorney fees are not available under the first category, but they are available under the second category. The Court notes that those decedents covered by the CWDS and AWDS satisfy the identical conditions to bring suit as those required under the second GWDS category.
In determining that the GWDS must be narrowly construed in its application to a surviving spouse and/or dependents (i.e., the first GWDS category), the Court noted that the “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.” In other words, “the loss must evolve from a deprivation to a survivor as a result of the death and the value assigned is measured by that loss.” SCI Propane,quoting Est. of Kuba v. Ristow Trucking Co., 508 N.E.2d 1, 2 (Ind. 1987); also see Durham ex rel. Est. of Wade v. U-Haul Int’l.,745 N.E.2d 755, 763 (Ind. 2001)(holding punitive damages are precluded under the GWDS). While payment of attorneys’ fees may deplete an estate and thus reduce a spouse’s and/or dependent’s inheritance, attorneys’ fees do not evolve from deprivation to a survivor and thus do not qualify as damages under the GWDS section applicable to spouses and dependents.
To support its rationale, the Court also relies on public policy, explaining that surviving spouses and dependents have strong incentive to bring wrongful death claims, and that it is “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 the wrongful conduct in the future.” Likewise, the Court notes that its interpretation adheres to the “American Rule” under which each party pays his own legal expenses.
Moving forward, this bright-line rule applicable to surviving spouses’ and/or dependents’ wrongful death claims will factor into liability assessments and settlement negotiations, as well as damages-related determinations at the trial level.