WAIT, WHAT? A CRITICAL LOOK AT THE MCCABE TRILOGY REGARDING ATTORNEYS FEES IN WRONGFUL DEATH LITIGATION. Matthew D. Bruno*

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1 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: 1 14-FEB-13 10:26 WAIT, WHAT? A CRITICAL LOOK AT THE MCCABE TRILOGY REGARDING ATTORNEYS FEES IN WRONGFUL DEATH LITIGATION Matthew D. Bruno* I. INTRODUCTION On June 29, 2011, the Supreme Court of Indiana handed down a trilogy of opinions that interpreted Indiana Code , commonly referred to as the Adult Wrongful Death Statute ( AWDS ), as allowing a prevailing plaintiff to recover attorneys fees incurred in the prosecution of a wrongful death action under that statute. 1 This came as a shock to many, considering that the text of the AWDS makes no mention of attorneys fees. Various portions of the opinions that are arguably dicta are even more troubling, in that they sweepingly state that the General Wrongful Death Statute ( GWDS ) and the Child Wrongful Death Statute ( CWDS ) provide for recovery of attorneys fees as well, without discussing the narrow circumstances under which such fees are recoverable based on the text of those statutes. Depending on how the McCabe trilogy is interpreted and applied by parties, their counsel and most importantly trial and appellate courts, these rulings could constitute a paradigm shift in wrongful death jurisprudence and statutory interpretation as a whole. Indeed, at least one plaintiffs firm has read these rulings broadly to mean that [a]ttorney s fees and expenses are available when statute provides for all damages including but not limited to specific categories of damages, unless the statute excludes attorney s fees and expenses. 2 Regardless of whether the consequences of the opinions are quite so expansive, there can be no doubt that plaintiffs attorneys are now advising their clients to seek attorneys fees where they never did before and that the value of any wrongful death case has increased signifi- * Matt Bruno is an attorney with Kightlinger & Gray, LLP and is a member of the Defense Trial Counsel of Indiana. He has defended airlines, trucking companies, nursing homes, and premises owners in a wide array of wrongful death actions under each of Indiana s wrongful death statutes. 1 McCabe v. Comm r, Ind. Dept. of Ins., 949 N.E.2d 816 (Ind. 2011); Hematology-Oncology of Ind., P.C. v. Fruits, 950 N.E.2d 294 (Ind. 2011); Indiana Patient s Comp. Fund v. Brown, 949 N.E.2d 822 (Ind. 2011). 2 Attorney s Fees ARE Available under the Adult Wrongful Death Statute, Indiana Law Update, Brad A. Catlin of Price Waicukauski & Riley, LLC, available at attorneys-fees-are-available-under-the-adult-wrongful-death-statute/, last visited Jan. 24,

2 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: 2 14-FEB-13 10:26 2 INDIANA CIVIL LITIGATION REVIEW [VOL. IX cantly. Moreover, uncertainty on the availability of attorneys fees gives parties one more thing to disagree on, which can adversely affect settlement negotiations. This article challenges the logic of the McCabe trilogy through an exploration of what the opinions do and do not say, the text of the statutes themselves, and an application of the American Rule that each party bears its own attorneys fees and various rules of statutory construction. The article concludes with a discussion of strategies to combat claims for attorneys fees and a call to arms to the defense bar to apply these strategies early and often. II. THE WRONGFUL DEATH STATUTES AND THE MCCABE TRILOGY A. THE STATUTORY TEXT Because the language of the statutes themselves is critical to understanding McCabe and the status of attorneys fees in wrongful death cases, the full text of the GWDS is set out immediately below, followed by the relevant text of the AWDS and the CWDS. The GWDS, in its cumbersome entirety, reads as follows: 3 (a) When the death of one is caused by the wrongful act or omission of another, (1) the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission. (2) When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years, and (3) the damages shall be in such an amount as may be determined by the court or jury, including, but not limited to, reasonable (A) medical, (B) hospital, (C) funeral and burial expenses, and (E) lost earnings of such deceased person resulting from said wrongful act or omission. 3 This text, of course, is not verbatim, as the GWDS has retained to date its sprawling paragraph format. However, in this exposition, only numbering and an outline format have been added. For purposes of the repeated citation of the GWDS that will be found throughout this article and because it provides a useful framework for understanding the GWDS, the numbering system above will be used when citing particular provisions.

3 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: 3 14-FEB-13 10: ] A Critical Look at the McCabe Trilogy 3 (4) That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedent s estate for the payment thereof. (5) The remainder of the damages, if any, shall, subject to the provisions of this article, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased. (b) If such decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him, (1) the damages inure to the exclusive benefit of the person or persons (A) furnishing necessary and reasonable hospitalization or hospital services in connection with the last illness or injury of the decedent, (B) performing necessary and reasonable medical or surgical services in connection with the last illness or injury of the decedent, (C) to a funeral director or funeral home for the necessary and reasonable funeral and burial expenses, and (D) to the personal representative, as such, for the necessary and reasonable costs and expenses of (i) administering the estate and (ii) prosecuting or compromising the action, including a reasonable attorney s fee, (2) and in case of a death under such circumstances, and when such decedent leaves no such widow, widower, or dependent children, or dependent next of kin, surviving him or her, the measure of damages to be recovered shall be the total of the necessary and reasonable value of (A) such hospitalization or hospital service, (B) medical and surgical services, (C) such funeral expenses, and (D) such costs and expenses of administration, including attorney fees. The damages provisions of the AWDS, which was enacted in 1999, read as follows:

4 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: 4 14-FEB-13 10:26 4 INDIANA CIVIL LITIGATION REVIEW [VOL. IX (c) In an action to recover damages for the death of an adult person, the damages: (1) must be in an amount determined by a: (A) court; or (B) jury; (2) may not include: (A) damages awarded for a person s grief; or (B) punitive damages; and (3) may include but are not limited to the following: (A) Reasonable medical, hospital, funeral, and burial expenses necessitated by the wrongful act or omission that caused the adult person s death. (B) Loss of the adult person s love and companionship. Finally, the key damages provisions of the CWDS are set forth below: (f) In an action to recover for the death of a child, the plaintiff may recover damages: (1) for the loss of the child s services; (2) for the loss of the child s love and companionship; and (3) to pay the expenses of: (A) health care and hospitalization necessitated by the wrongful act or omission that caused the child s death; (B) the child s funeral and burial; (C) the reasonable expense of psychiatric and psychological counseling incurred by a surviving parent or minor sibling of the child that is required because of the death of the child; (D) uninsured debts of the child, including debts for which a parent is obligated on behalf of the child; and (E) the administration of the child s estate, including reasonable attorney s fees. A plain reading of these three statutes reveals the following: (1) the GWDS provides for attorneys fees only if the decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him ; 4 (2) the AWDS makes no mention of attorneys fees; and (3) the CWDS allows for attorneys fees only as part of the administration of the child s estate. 5 Until recently, it appeared relatively clear from the text of the statutes that attorneys fees were available only in very 4 GWDS, at (b)(1)(d)(ii) and (b)(2)(d). 5 CWDS, at (f)(3)(e).

5 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: 5 14-FEB-13 10: ] A Critical Look at the McCabe Trilogy 5 limited circumstances under the GWDS and CWDS, and completely unavailable under the AWDS. At least the AWDS has now been interpreted otherwise, and the broader effects of those opinions remain to be seen. 6 B. THE TRILOGY ITSELF 1. McCabe v. Commissioner, Indiana Department of Insurance 7 The question that the Indiana Supreme Court was required to rule on in McCabe was a simple one: Are attorneys fees for prosecution of an action under the AWDS recoverable? 8 The trial court had granted partial summary judgment to the defendant, holding that such fees were not recoverable as a matter of law, and the court of appeals affirmed on an interlocutory appeal. 9 Minimal facts were relevant to the question of law, just that the plaintiff was the son of a seventy-four-year-old woman who had allegedly been the victim of medical malpractice, and that the settlement with the medical providers had allowed the son to seek additional recovery from the Indiana Patient s Compensation Fund. 10 The court first noted that an unambiguous statute is not subject to statutory construction but found that the including but not limited to language of the AWDS was ambiguous as far as whether attorneys fees were recoverable. 11 The fund provided three sound arguments regarding various rules of the statutory construction, but the court instead gave paramount consideration... to the basic principle that two statutes that apply to the same subject matter must be construed harmoniously if possible, and noted that [t]his rule takes precedence over other rules of statutory construction. 12 Without providing in the written opinion a comparison of the GWDS and the AWDS, the court indicated that [t]he structure of the AWDS does not parallel that of the GWDS in creating a new statutory cause of action, but it appears to focus upon the mere amplification of damages allowed by the GWDS to include the loss of the adult person s love and companionship in 6 A little over a year since the Indiana Supreme Court s decision, McCabe has not yet been cited regarding attorneys fees in any published opinion where the availability of attorneys fees under any of the wrongful death statutes has been litigated. Notably, however, McCabe was cited in the unpublished disposition of Lilly v. Meserve, 959 N.E.2d 401, 2011 WL (Ind. Ct. App. 2011). There, the plaintiff who left dependents and therefore arguably fell under GWDS (a) that does not provide for attorneys fees argued that she was statutorily entitled to attorneys fees based on McCabe WL , at *4. Defendant simply conceded the point, and thus no decision was rendered on the issue N.E.2d 816 (Ind. 2011) 8 Id. at ( The plaintiff challenges only the availability of attorneys fees under the AWDS but argues that the provisions of the GWDS should be considered in construing the AWDS. ) 9 Id. at Id. 11 Id. at Id. at 820 (citing Marion County Sheriff s Merit Bd. v. Peoples Broad. Corp., 547 N.E.2d 235, 237 (Ind. 1989); Johnson County Farm Bur. Coop. Ass n v. Indiana Dep t of State Rev., 568 N.E.2d 578, 584 (Ind. Tax Ct. 1991)).

6 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: 6 14-FEB-13 10:26 6 INDIANA CIVIL LITIGATION REVIEW [VOL. IX the narrow class of actions for the wrongful death of an unmarried adult without dependents. 13 The basis for this opinion appears to be that the AWDS and the GWDS are subsections of one chapter of the Indiana Code entitled Wrongful Death Generally. 14 The court also reasoned, [s]ignificantly, the CWDS, like the GWDS, explicitly permits recovery of attorney fees and expenses, 15 and that [i]f the legislature had desired the AWDS to exclude elements of damages expressly included in the GWDS, [including attorneys fees in the list of excluded damages] would seem the most likely way to have ensured such objective. 16 The holding reads as follows: Considering the GWDS and the AWDS in pari materia and warranting harmonious interpretation, we find that the phrase may include but are not limited to in the AWDS includes the availability of attorney fees and all other elements of damages permitted under the GWDS. 17 While it was acknowledged that other opinions construing the including but not limited to language had tended to constrain recovery (i.e., holding that neither punitive nor treble damages are recoverable under the AWDS), the court indicated that such opinions did not affect its holding. 18 Former Chief Justice Shepard strongly dissented, citing primarily to the American Rule and to the principle that the AWDS is a statute in derogation of common law that must be strictly construed. These arguments are discussed further infra at Section IV. 2. Hematology-Oncology Indiana, P.C. v. Fruits 19 While the trial court in McCabe had found attorneys fees under the AWDS not recoverable and was affirmed by the court of appeals, 20 just the opposite happened in Fruits: the trial court had found attorneys fees were recoverable and the court of appeals had affirmed that ruling. 21 The Mc- Cabe opinion had dealt solely with attorneys fees, as an award of expenses was not challenged in that case. 22 Fruits succinctly applied McCabe to hold 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. at Id N.E.2d 294 (Ind. 2011). 20 McCabe, 949 N.E.2d at Fruits, 950 N.E.2d at McCabe, 949 N.E.2d at

7 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: 7 14-FEB-13 10: ] A Critical Look at the McCabe Trilogy 7 that litigation expenses are likewise authorized by the AWDS. 23 The Fruits court also rendered some opinions in regard to the interplay of attorneys fees under the AWDS and the Medical Malpractice Act. 24 Specifically, it held that the fees available are subject to the $250,000 cap for damages against medical providers under the Medical Malpractice Act and that an attorneys fee award against a medical provider is not subject to the fifteen percent of jury verdict limitation that applies to fee awards against the Patient s Compensation Fund. 25 The court additionally provided a straightforward definition of the fees recoverable under the AWDS, holding that the Plaintiff is entitled to recover the reasonable value of counsel s work in the prosecution of the tort case and the administration of the Estate, without regard to the contingent fee which counsel has received pursuant to his contract with the Plaintiff. 26 Former Chief Justice Shepard again dissented, solely citing to his dissent in McCabe, with Justice Rucker again concurring in Shepard s dissent Indiana Patient s Compensation Fund v. Brown 28 Brown added yet another damages element to the AWDS: loss of services. 29 The Indiana Supreme Court agreed with the court of appeals that while it may be difficult for a nondependent parent to prove that loss of an adult child s services resulted in pecuniary loss... [l]oss of services, when proved, would constitute a pecuniary loss of the type contemplated by the AWDS. 30 Shepard was unimpressed, going so far as to call the holding oxymoronic on the basis that the very point of the Adult Wrongful Death Statute was to permit some recovery for survivors of an adult who had no dependents. 31 C. WHAT THE OPINIONS DO AND DO NOT SAY These opinions have made abundantly clear that, at least for the time being, attorneys fees, litigation expenses, and loss of services are all recoverable elements under the AWDS. These opinions, however, also have some troubling language for defendants in actions under the GWDS and the CWDS that plaintiffs will undoubtedly point to in seeking attorneys fees in 23 Fruits, 950 N.E.2d at 296; see also Brown, 949 N.E.2d at IND. CODE et seq. 25 Id. at Id. at Id. at N.E.2d 822 (Ind. 2011) 29 Id. at Id. 31 Id. at 825 (emphasis in original).

8 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: 8 14-FEB-13 10:26 8 INDIANA CIVIL LITIGATION REVIEW [VOL. IX those cases as well. Specifically, the following statements were made in these opinions: Significantly, the CWDS, like the GWDS, explicitly permits recovery of attorney fees and expenses our conclusion that attorney fees, as specifically permitted by the GWDS Recovery of attorney fees and costs are expressly permitted under both [the GWDS] and [the CWDS] These statements, however, gloss over some key distinctions. In regard to the GWDS, the trilogy opinions make no mention that the GWDS provides for attorneys fees only in limited circumstances: where the decedent depart[s] this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him Where the Indiana Supreme Court said the GWDS allows for attorneys fees while perhaps incomplete based on the foregoing limiting language those statements were technically accurate. Plaintiffs, however, will undoubtedly seek to have that language interpreted as saying attorneys fees are available in all cases under the GWDS. The supreme court, however, did not say that. The court merely indicated that the GWDS allows for recovery of attorneys fees which it in fact does albeit only in limited circumstances. As such, the language used by the court does not warrant such an expansive interpretation. In regard to the CWDS, the trilogy opinions reference that recovery of attorneys fees is permitted under the CWDS. Again, however, a key distinction is missing. The CWDS provides an exhaustive list of recoverable damages, that is, it contains no including but not limited to language. 36 The statute provides that certain categories of expenses are recoverable, which are set forth in five separate subparagraphs. Among them is subparagraph (E), indicating that a plaintiff in a child wrongful death action may recover damages to pay the expenses of the administration of the child s estate, including reasonable attorney s fees. 37 The statute makes no mention of attorneys fees for prosecution of the action. The language of the GWDS suggests that the legislature has contemplated that there is a distinction to be drawn here. The GWDS provides recovery of attorneys fees 32 McCabe, 949 N.E.2d at Id. at Fruits, 950 N.E.2d at GWDS (b). 36 IND. CODE (f). 37 Id. at 1-2(f)(3)(E).

9 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: 9 14-FEB-13 10: ] A Critical Look at the McCabe Trilogy 9 both for administering the estate and for prosecuting or compromising the action. 38 The CWDS, on the other hand, provides recovery of attorney s fees only for the administration of the child s estate. 39 A holding that the CWDS permits recovery of attorney s fees for administration of the estate and for prosecution of the action would render the latter s inclusion in the GWDS superfluous and meaningless, which courts cannot do. 40 Moreover, an action under the CWDS (as opposed to actions under the GWDS or AWDS) is prosecuted in the name of the parents, not the estate of the decedent. 41 As such, there is simply no basis to suggest that the allowed attorneys fees for the administration of the child s estate, including reasonable attorney s fees are the same as attorneys fees for prosecution of a child wrongful death action. III. THE AMERICAN RULE AND VARIOUS RULES OF STATUTORY CONSTRUCTION McCabe summarily disposes of the argument regarding the long-standing American Rule that holds that parties must pay their own attorneys fees unless a statute authorizes recovery of fees. The majority simply states: The applicability of [the American Rule] depends on whether the AWDS is construed to authorize recovery of attorney fees. 42 Again, the logic here is correct, but a complete disregard of the American Rule was unwarranted. The McCabe court went on to state as follows: The AWDS also specifically designated only two types of damages that could not be recovered: punitive damages and damages awarded for a person s grief. Ind. Code (c)(2). If the legislature had desired the AWDS to exclude elements of damages expressly included in the GWDS, this would seem the most likely way to have ensured such objective. 43 The reasoning here is essentially this: The legislature specifically excluded two types of damages, therefore all other types of damages are availa- 38 Compare GWDS, (b)(1)(d)(i) with GWDS, (b)(1)(d)(ii). 39 CWDS (f)(3)(e). 40 See City of North Vernon v. Jennings Nw. Reg l Utils., 829 N.E.2d 1, 4-5 (Ind. 2005) ( To effectuate legislative intent, we read the sections of an act together in order that no part is rendered meaningless if it can be harmonized with the remainder of the statute. ); Marshall v. Illsley Trust Co., N.A., 848 N.E.2d 1175, 1181 (Ind. Ct. App. 2006) ( Every word must be given effect and meaning where possible, and no part is to be held meaningless if it can be reconciled with the rest of the statute. ). 41 Id. at 1-2(c)(1); see also Johnson v. Parkview Health Systems, Inc., 801 N.E.2d 1281, 1285 (Ind. Ct. App. 2004) (trans. denied) ( When an action is brought under the CWDS, it must be brought by the decedent s parents.... No other result may be obtained according to the language employed by our legislature. ). 42 Id. at Id.

10 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: FEB-13 10:26 10 INDIANA CIVIL LITIGATION REVIEW [VOL. IX ble here. It is well-established law that wrongful death statutes are in derogation of common law and thus must be strictly construed against the expansion of liability. 44 In addition, because the AWDS is in derogation of common law, the court was required to presume that the legislature did not intend to make any change to the common law beyond what it declares either in express terms or by unmistakable implication. 45 Had these inescapable rules of statutory construction been applied, the logic would have flowed as follows: The legislature specifically excluded two types of damages, therefore all other types of damages available under common law are available here. Because the American Rule provides that attorneys fees are not available under common law, attorneys fees are not available under the AWDS. As such, while the court was accurate in indicating whether the American Rule applies was contingent on whether the AWDS was interpreted as a statute authorizing attorneys fees, the American Rule should have been considered in determining the legislature s intent. The McCabe Court gave paramount consideration to the rule of construction that two statutes applying to the same subject matter should be considered in pari materia, that is, construed harmoniously where possible. 46 While it is true that the AWDS and the GWDS both address wrongful death, the statutes create three distinct sets of damages: (1) damages including but not limited to last medicals, 47 lost earnings, and the remainder of the damages, if any ; 48 (2) damages limited to last medicals and attorneys fees; 49 and (3) damages that may include, but are not limited to last medicals and loss of love and affection damages capped at $300, Because three different sets of damages are allowable based on the three different sets of criteria, it is not inharmonious that one set of damages provides for an award of attorneys fees while another does not. Further, from a practical perspective, the legislature likely allowed attorneys fees where the damages are limited to last medicals to provide an incentive for attorneys to represent the owners of such claims despite relatively minimal 44 Durham v. U-Haul Int l, Inc., 745 N.E.2d 755, 759 (Ind. 2001); Forte v. Connerwood Healthcare, Inc., 745 N.E.2d 796, 800 (Ind. 2001) (citing South Bend Cmty. Schs. v. Widawski, 622 N.E.2d 160, 162 (Ind.1993)). 45 McKnight v. State, 658 N.E.2d 559, 562 (Ind. 1995) (quoting Bartrom v. Adjustment Bur., Inc., 618 N.E.2d 1, 10 (Ind. 1993)). 46 McCabe, 949 N.E.2d at For simplicity, damages including medical, hospital, funeral and burial expense are referred to simply as last medicals. 48 That is, the damages available under the GWDS where the decedent leaves a widow/widower or dependent child or next of kin. GWDS (a). 49 That is, the damages available under the GWDS [i]f such decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him.... GWDS (b). 50 That is, the damages available under the AWDS where the person is an unmarried person with no dependents who is not a child.

11 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: FEB-13 10: ] A Critical Look at the McCabe Trilogy 11 damages. The damages under the AWDS, however, are not so limited, such that plaintiffs attorneys would likely still be willing to accept an AWDS case on a contingency basis. As such, even construing the statutes in pari materia, disallowing recovery of fees under the AWDS is harmonious with allowing fees under the extremely limited damages under the GWDS where the decedent leaves no widow, widower, or dependents. IV. A CALL TO ARMS As discussed herein, the holdings and the dicta in the McCabe trilogy should give defendants to any type of wrongful death action and their counsel cause for concern. Claims for attorneys fees in wrongful death cases that began before McCabe where attorneys fees may not have been on anyone s radar may be lurking, waiting to spring up post-verdict. If the issue has not been not attacked head-on and/or has not been fully addressed with clients, the results could be unpleasant, to say the least. Moreover, if the issue has not been directly ruled upon in a given case, plaintiffs will at least be able to make an argument in settlement discussions that their case is worth around thirty to forty percent more than it would be otherwise. As much as defendants and their counsel may claim to opposing counsel that they disregard such an argument as baseless, it will likely have some effect in increasing settlement figures. Considering that empirical data suggest that over ninety-five percent of cases are resolved by means other than trial, it will likely be a long time before the wrongful death attorneys fees issue will make it back to the Indiana Supreme Court. 51 Fortunately, however, the defense bar is not without recourse. It is common knowledge that there was no cause of action for wrongful death at common law, and thus wrongful death statutes must be strictly construed against the expansion of liability. 52 The question is one of statutory interpretation, and thus can be addressed by trial courts as early in the litigation as a pre-answer Rule 12(b)(6) motion to dismiss for failure to state a claim for attorneys fees. And that is exactly what defense counsel must do. If a complaint on a general or child wrongful death action explicitly contains a claim for attorneys fees, defendants have every reason to move to dismiss such claims at the outset of the case. The motion requires no discovery, has a quick briefing schedule, and in this author s estimation should come out in favor of defendants every time. 53 Not only would a win on such a motion resolve the attorneys fee issue, but it is a strong offensive move that will set the tone of the litigation, sending a message to plaintiffs 51 A Profile of Settlement, Court Review: The Journal of the American Judges Association, 42:3-4 at (2006), available at last visited Jan. 24, See supra, n Assuming, if the claim is under the GWDS, that the decedent left a spouse and/or dependents.

12 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: FEB-13 10:26 12 INDIANA CIVIL LITIGATION REVIEW [VOL. IX counsel, plaintiffs themselves, and defense counsel s clients that the case will be vigorously defended. If no explicit claim for fees is made, the question may be left open whether a claim to the effect of for all other just and proper relief will suffice to raise the attorneys fee issue at a later point. This uncertainty can be easily obviated by a simple request for admission to the effect of Admit that Plaintiff is not seeking recovery of attorney fees incurred in the prosecution of this action. 54 If admitted, the attorneys fee buck stops there. If denied, a simple motion to dismiss or motion for summary judgment will resolve the issue one way or the other. 55 Should the trial court rule that fees are recoverable either by ruling that fees are absolutely recoverable or by leaving the question open subject to the facts of the case the next step in actively attacking the attorneys fees claim is a motion for interlocutory appeal. A defendant in this situation could argue that it will suffer substantial expense, damage or injury if the order is erroneous and the determination of the error is withheld until after judgment and/or that [t]he order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case. 56 The basis of this argument is simple: where the parties disagree as to whether defendant is at risk for attorneys fees which is a significant sum in wrongful death cases the parties will have such a fundamental disagreement over the value of the case that will make settlement a virtual impossibility. As such, all parties would be forced to incur substantial fees litigating the case where it may otherwise be settled, which would be a more orderly resolution of the case. Of course, trial judges can hold issues under advisement, interlocutory appeals can be denied, and so on, but if this issue is raised enough times, the court of appeals or the Indiana Supreme Court will eventually provide greater clarity and certainty on these issues. V. CONCLUSION Under McCabe, attorneys fees are now recoverable under the AWDS. That much is clear. In so holding, however, the Indiana Supreme Court painted with a broad brush, leaving litigants and their counsel uncertain how the reconcile the high court s dicta with the plain language of the GWDS and CWDS. Uncertainty will undoubtedly yield conflicting interpre- 54 Requests for admissions seeking that a plaintiff admit he is not seeking litigation expenses and is not seeking loss of services would also be worthwhile in light of Fruits and Brown. 55 There is always the chance that the judge will in some manner take the motion under advisement or determine that the availability of fees will turn on the facts of the case. The latter case is still a ruling that attorneys fees are at least hypothetically recoverable. For purposes of an interlocutory appeal, one could argue that a ruling that attorneys fees may be recoverable contingent upon the facts of the case is equivalent to a denial of the motion to dismiss the claim attorneys fees. 56 IND. R. APP. PROC. 14(B)(1)(c).

13 \\jciprod01\productn\d\dtc\9-1\dtc101.txt unknown Seq: FEB-13 10: ] A Critical Look at the McCabe Trilogy 13 tations, which will undoubtedly yield inconsistent results. Until greater clarity is achieved on GWDS and CWDS cases and/or the McCabe holding is overturned in regard to AWDS cases, the best thing defense attorneys can do for their clients is to actively, intelligently, and consistently attack such claims in all wrongful death litigation.

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