SB 124 grants attorney’s fees in all Indiana wrongful death cases

There are three separate wrongful death statutes for Indiana, namely the General Wrongful Death Statute (GWDS), the Adult Wrongful Death Statute (AWDS), and the Child Wrongful Death Statute (CWDS).

Both AWDS and CWDS precisely provide for attorneys fees for the wrongful death lawsuits.

In SCI Propane, LLC v. Frederick, 39 N.E.3d 675 (2015), SCI Propane LLC, South Central Indiana Rural Electric Membership Corporation and RushShelby Energy Rural Electric Cooperative Inc. (collectively, “SCI”) provided metered propane services in and around Martinsville, Indiana.

On May 13, 2004, a gas leak occurred at the home of William and Betty Kindle, one of the SCI’s customers, resulting into an explosion and fire. One of Kindles’ family members, Stephan Frederick, who was staying with them, was killed leaving behind his minor son and wife.

Later on, Stephan's estate filed a wrongful death suit against SCI and other defendants. The parties agreed to bifurcate the issues of liability and damages, and the case proceeded to separate trials. The liability jury apportioned 65% liability to defendants, for which SCI was ultimately responsible, and 35% to the Kindles. Before the damages trial, the estate moved for partial summary judgment, arguing that it could seek attorneys' fees under the Indiana General Wrongful Death Statute, Indiana Code Section 34-23-1-1 (2014).

The trial court granted the estate's motion and denied SCI's. Both parties appealed, and in a published opinion, a unanimous panel of the Court of Appeals affirmed in relevant part, agreeing with the trial court that attorneys' fees were recoverable under the GWDS.

Moreover, it is well settled that Indiana adheres to the “American Rule,” under which each party is responsible for paying his or her legal expenses absent contrary statutory authority; thus, the court “generally exclude[d] the award of attorney fees from compensatory damages.” (citing Loparex, LLC v. MPI Release Techs., LLC, 964 N.E.2d 806, 817 (2012) (holding attorneys’ fees was not recoverable in blacklisting claim and distinguishing McCabe, finding there was no conflict between the Indiana blacklisting statutes necessitating in pari materia construction)). Accordingly, it can be presumed that General Assembly did not intend to provide attorneys’ fees as a compensatory damages remedy.

In light of the precedent strictly construing the GWDS, attorneys’ fees were not recoverable as compensatory damages under the GWDS when the decedent leaves a surviving spouse and/or dependents. Thus, there are no provisions for attorney’s fees when the suit is filed under GWDS.

Accordingly, the Indiana Supreme Court’s decision led to filing of less wrongful death cases due to unwillingness of attorneys to litigate them.

In order to resolve this problem, Senator Lonnie Randolph introduced Senate Bill 124[1] on January 5, 2016.

The rule was introduced with an aim to allow reasonable attorney's fees incurred for bringing and maintaining the wrongful death action where the decedent leaves no descendants.

Accordingly, the new bill that is to take effect July 1, 2016, has not only helped in simplifying the wrongful death law in Indiana but has also made it more reasonable for attorneys who wanted to bring in wrongful death suits.


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