CRONE, Judge.
Beverly Brown, as executor of the estate of Barbara Frieden, settled a medical malpractice claim for the statutory limit and then petitioned the Indiana Patient's Compensation Fund ("the Fund") for additional compensation. The trial court awarded $278,377.55, which included compensation for attorney fees, litigation costs, estate administration costs, and loss of services to Frieden's parents. The Fund contends that these damages are not authorized by the Adult Wrongful Death Statute ("AWDS").
On August 16, 2004, Frieden suffered a fatal heart attack. Brown, who is Frieden's sister and the executor of her estate, filed suit against Frieden's health care providers. The suit alleged that the health care providers had negligently failed to diagnose and treat Frieden's heart disease. After several years of litigation, Brown settled with the health care providers in an amount that would allow her to petition the Fund for additional
At the time of her death, Frieden was not married and did not have dependent children. Frieden was survived by her parents, but they were not her dependents. Brown sought to recover loss of love and companionship to Frieden's parents, medical bills, and funeral and burial expenses, which the Fund did not contest. Brown also sought to recover for loss of services to Frieden's parents, expenses relating to the administration of her estate, attorney fees, and litigation costs. The Fund did not contest the amounts requested, but argued that these damages were not available under the AWDS. The Fund therefore filed a motion for partial summary judgment on that basis. Brown filed a cross-motion for partial summary judgment.
After a hearing, the trial court ruled that all the requested damages were available under the AWDS and awarded Brown the full amount requested, $528,377.55. The court ultimately entered judgment in the amount of $278,377.55 after applying a setoff of the money received in the settlement with the health care providers. The Fund now appeals, arguing that the trial court erred by granting summary judgment for Brown.
Our standard of review of a summary judgment is well settled:
Ryan v. Brown, 827 N.E.2d 112, 116-17 (Ind.Ct.App.2005) (quotations and citations omitted).
This case hinges on the interpretation of the AWDS. Statutory interpretation is a pure question of law. Gaudin v. Austin, 921 N.E.2d 895, 896 (Ind.Ct.App. 2010).
In re P.F., 849 N.E.2d 1220, 1224 (Ind.Ct. App.2006) (quotations and citations omitted).
Our supreme court has described the origin of wrongful death claims as follows:
Durham ex rel. Estate of Wade v. U-Haul Int'l, 745 N.E.2d 755, 758 (Ind.2001) (citations omitted).
This General Wrongful Death Statute ("GWDS") is currently codified at Indiana Code Section 34-23-1-1 and reads as follows:
Thus, the GWDS addresses two scenarios: in the first, the decedent dies leaving a
In 1987, the legislature enacted the Child Wrongful Death Statute ("CWDS"), which applies if the decedent is
Ind.Code § 34-23-2-1. Damages recoverable under the CWDS include loss of the child's services, loss of the child's love and companionship, health care expenses, funeral and burial expenses, counseling expenses for surviving parents and minor siblings, uninsured debts of the child, probate administration expenses, and attorney fees. Ind.Code § 34-23-2-1(f).
In Miller v. City of Hammond, we held that nondependent parents of a twenty-three-year-old college student could not recover under the wrongful death statutes in effect at the time. 691 N.E.2d 1310, 1313 (Ind.Ct.App.1998), trans. denied. The following year, the legislature enacted the AWDS, which provides in pertinent part:
Because the wrongful death statutes are in derogation of the common law, their provisions must be construed narrowly. Butler v. Ind. Dep't of Ins., 904 N.E.2d 198, 202 (Ind.2009). "In particular, such a statute is to be construed `strictly against the expansion of liability.'" Id. (quoting Bolin v. Wingert, 764 N.E.2d 201, 207 (Ind.2002)) (emphasis in Butler).
The GWDS contains similar open-ended language creating a non-exhaustive list of damages. Our supreme court addressed the meaning of this language in Durham, 745 N.E.2d 755, and Estate of Kuba v. Ristow Trucking Co., 508 N.E.2d 1 (1987). In Kuba, the court addressed whether treble damages under Indiana Code Section 34-4-30-1 are available in wrongful death actions:
508 N.E.2d at 2.
Durham concerned whether punitive damages are available under the GWDS. This Court acknowledged that previous cases had held that punitive damages were not available, but noted that they were not explicitly prohibited by the statute. See Durham, 745 N.E.2d at 759 (discussing Durham v. U-Haul Int'l, 722 N.E.2d 355, 358 (Ind.Ct.App.2000)). We concluded that public policy supported allowing punitive damage awards under the GWDS. See id. at 758 (discussing Durham, 722 N.E.2d
In Butler, our supreme court touched on the meaning of the "but not limited to" language in the AWDS. James Butler, as personal representative for Nondis Butler, sought to collect the total amount of medical expenses billed to Nondis. The Fund argued that it should have to pay only the amount ultimately accepted by the medical providers after adjustments made by insurance, Medicare, and Medicaid. The AWDS specifies that "[r]easonable medical, hospital, funeral, and burial expenses necessitated by the wrongful act or omission that caused the adult person's death" may be recovered. Ind.Code § 34-23-1-2(c)(3)(A). The court concluded that the statute "does not employ the common law standard to generally authorize recovery for the reasonable value of medical care and treatment," but rather "authorizes recovery only of reasonable medical `expenses necessitated' by another's wrongful conduct." Butler, 904 N.E.2d at 202. Therefore, when charges are billed but settled for a lower amount, the difference is not a "`necessitated' expense." Id.
The court rejected Butler's argument that the "but not limited to" language should be read to expand the amount of medical expenses recoverable under the statute:
Id. at 202-03.
This court previously addressed the availability of attorney fees under the AWDS in Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846 (Ind.Ct.App. 2009). Charlotte Large died in a car accident. Her personal representative pursued a wrongful death action and obtained a settlement, $12,016.72 of which was to be paid to Large's estate, and $47,983.28 of which was to be paid to Ronald Hillebrand, Large's sole surviving child. The personal representative then requested that her attorney fees and personal representative fees be paid out of the entire settlement. Hillebrand argued that these fees should be paid by the estate.
To determine how the fees should be paid, we examined the AWDS. To determine the scope of the AWDS, we looked to Thomas v. Eads, in which we discussed the history of the GWDS. 400 N.E.2d 778, 782-83 (Ind.Ct.App.1980). In Thomas, we noted that earlier versions of the statute had specified which damages were available, but the language was now open-ended. Id. In a footnote, the Thomas court
The Hillebrand court followed Thomas and determined that attorney fees are available in all wrongful death actions:
914 N.E.2d at 850-51. Based on our conclusion that attorney fees are recoverable under the AWDS, we determined that the attorney fees incurred in pursuing the action should be paid from the settlement. Id. at 851.
Recently, a different panel of this Court determined that attorney fees are not available under the AWDS. McCabe v. Comm'r, Ind. Dep't of Ins., 930 N.E.2d 1202 (Ind.Ct.App.2010), trans. sought. McCabe found Hillebrand distinguishable because it was "a probate case deciding from which probate assets attorney fees incurred in obtaining a wrongful death settlement should be paid" and because it relied on Thomas, which was decided before the AWDS was enacted. Id. at 1208. Instead, McCabe relied on language from Butler:
Id. at 1209.
Judge Riley dissented, disagreeing with the majority's interpretation of Butler. Judge Riley contended that, in context, Butler's reference to "circumscribed damages" and "necessitated expenses" were references to the damages that are explicitly listed in the AWDS. Id. at 1210-11. In other words, Butler held that because the AWDS specifies that medical expenses must be necessary, the phrase "may include but are not limited to" could not be used to expand the class of medical expenses recoverable under the AWDS. See id. Judge Riley noted that Butler reiterated that the AWDS permits recovery of damages other than those enumerated in subsections (c)(3)(A) and (c)(3)(B). Id. at 1211.
Id. at 1212. After McCabe was decided, another panel of this court determined that attorney fees and litigation costs could be recovered in an action under the AWDS, employing reasoning similar to Judge Riley's. Hematology-Oncology of Indiana, P.C. v. Fruits, 932 N.E.2d 698, 700-04 (Ind.Ct.App.2010).
We agree with Fruits and Judge Riley's opinion in McCabe. Butler does not stand for the proposition that no damages may be recovered under the AWDS unless they are explicitly mentioned. Butler simply holds that when there is specific language in the statute qualifying the amount of damages available — such as medical expenses necessitated by the wrongful act or omission — the more general language in the statute cannot be used to expand that category of damages. See Butler, 904 N.E.2d at 202-03. Furthermore, we do not find McCabe's attempt to distinguish Hillebrand persuasive. Although the ultimate issue in Hillebrand was which assets should be used to pay the attorney fees, we clearly reached that conclusion by first determining whether attorney fees are available under the AWDS. See Hillebrand, 914 N.E.2d at 848, 851. We do not think it is problematic that Hillebrand relied, in part, on Thomas; given the paucity of decisions interpreting the phrase "include but are not limited to" in the AWDS, it was reasonable to look to decisions interpreting similar language in the GWDS.
The McCabe majority also found that the "American Rule" supported its conclusion that attorney fees are not available under the AWDS. 930 N.E.2d at 1209. Pursuant to the American Rule, parties are required to pay their own attorney fees "absent an agreement between the parties, statutory authority, or other rule to the contrary." Town of Georgetown v. Edwards Cmty., Inc., 885 N.E.2d 722, 726 (Ind.Ct.App.2008). The Fund contends that Georgetown holds that the statutory language authorizing attorney fees must be explicit.
The AWDS must be narrowly construed, but the legislature used open-ended language to describe the damages available under the statute. Decisions discussing
It appears that we have never addressed whether a nondependent can recover for loss of services under the AWDS. The AWDS explicitly authorizes an award for "[l]oss of the adult person's love and companionship," but is silent regarding loss of services. Ind.Code § 34-23-1-2. The GWDS, by comparison, mentions neither loss of love and companionship nor loss of services. In Durham, our supreme court held that "loss of consortium is a proper element of damages in a wrongful death action for the death of a spouse" pursuant to the GWDS. 745 N.E.2d at 765. The court defined "consortium" as follows:
Id. (some citations omitted); see also BLACK'S LAW DICTIONARY, 8th ed. 2004 (defining "loss of consortium" as a "loss of the benefits that one spouse is entitled to receive from the other, including companionship, cooperation, aid, affection, and sexual relations" or a "similar loss of benefits that
As described above, Indiana courts have prohibited awards of non-pecuniary damages in wrongful death actions when not explicitly authorized by statute. In Andis, we stated:
489 N.E.2d at 82 (citations omitted). As a practical matter, it may be difficult for a nondependent parent to prove that loss of an adult child's services resulted in pecuniary loss. In this case, the Fund has not contested that Frieden's parents suffered a pecuniary loss from the loss of her services, but instead has argued that such damages are categorically unavailable under the AWDS. We cannot agree. Loss of services, when proved, would constitute a pecuniary loss of the type contemplated by the AWDS. Therefore, we affirm the judgment of the trial court.
Affirmed.
FRIEDLANDER, J, and BARNES, J., concur.
The Fund, on the other hand, contends that the GWDS and AWDS are separate, mutually exclusive remedies. The Fund argues that the AWDS applies when there are nondependent parents or children who are eligible to recover for loss of the decedent's love and companionship. The Fund asserts that the GWDS applies if there is no surviving parent or child. According to the Fund, the justification for allowing attorney fees in the latter case is to give the personal representative an incentive to pursue damages for medical, hospital, funeral, and burial expenses on behalf of those who have rendered services.
The McCabe majority stated that the GWDS, AWDS, and CWDS provide disjunctive remedies. 930 N.E.2d at 1209. Fruits discussed the GWDS and the AWDS, but stated in a footnote, "As we find attorney's fees are available under either [statute], we need not address Hematology's independent argument that the [GWDS] does not apply in this case." 932 N.E.2d 698 at 702 n. 2. As the GWDS and AWDS both contain provisions relating to adults who die without dependents, we believe that the two statutes should be read in harmony, however, we encourage the legislature to revise the statutes to more clearly reflect its intent.
