Hoker Trucking, LLC and Linda L. Phillips v. Pamela K. Robbins, as Administratrix of the Estate of Mike Douglas Robbins

Sep 15 2015, 8:52 am

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Michael T. Terwilliger Frederick W. Crow
Whitten Law Office Young & Young
Valparaiso, Indiana Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Hoker Trucking, LLC and Linda September 15, 2015
L. Phillips, Court of Appeals Case No.
89A01-1411-CT-468
Appellants-Defendants,
Appeal from the Wayne Superior
v. Court
The Honorable Charles K. Todd, Jr.,
Judge
Pamela K. Robbins, as
Administratrix of the Estate of Cause No. 89D01-1212-CT-56
Mike Douglas Robbins,
Deceased,
Appellee-Plaintiff.

Riley, Judge.

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 STATEMENT OF THE CASE

[1] Appellants-Defendants, Hoker Trucking, LLC, and Linda L. Phillips

(collectively, Hoker Trucking), appeal the trial court’s order granting attorneys’

fees and prejudgment interest to Appellee-Plaintiff, Pamela K. Robbins, as

administratrix of the estate of Mike Douglas Robbins, deceased (Robbins).

[2] We reverse.

ISSUES

[3] Hoker Trucking raises four issues on appeal, one of which we find dispositive

and which we restate as follows: Whether Robbins, as the surviving spouse of

the decedent, is entitled to attorneys’ fees under the General Wrongful Death

Statute.

FACTS AND PROCEDURAL HISTORY

[4] The relevant facts are undisputed. On January 4, 2011, Mike Douglas Robbins

(Mike) was involved in a motor vehicle accident with a tractor-trailer, operated

by Linda Phillips, an employee of Hoker Trucking, in Richmond, Wayne

County, Indiana. Mike died as a result of the injuries suffered in the accident.

On December 21, 2012, Robbins, Mike’s surviving spouse, filed a wrongful

death action against Hoker Trucking in her capacity as administratrix of Mike’s

estate. Hoker Trucking admitted liability and the case proceeded to trial on the

issue of damages only. On October 6, 2014, the jury returned a verdict in favor

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 of Robbins, awarding the estate a damage award in the amount of

$6,000,000.00.

[5] On January 9, 2015, the trial court conducted a hearing on Robbins’ request for

attorneys’ fees and prejudgment interest as compensable damages under the

Indiana General Wrongful Death Statute. Both parties presented evidence and

testimony during the hearing. On January 20, 2015, the trial court issued its

order, awarding Robbins attorneys’ fees of $2,400,000.00 and prejudgment

interest in the amount of $622,028.11.

[6] Hoker Trucking now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[7] Whether an award of attorneys’ fees can be sought under the Indiana General

Wrongful Death Statute, Ind. Code § 34-23-1-1 (2014) (GWDS), was an issue

of first impression until our supreme court issued its decision in SCI Propane,

concluding that attorneys’ fees are not recoverable as a type of compensatory

damages if the decedent is survived by a spouse and/or dependents. SCI

Propane, LLC, et al. v. Frederick, --- N.E.3d ---- (Ind. Aug. 27, 2015).

[8] Not exactly an exercise in clarity, the GWDS states, in its entirety:

When the death of one is caused by the wrongful act or omission of
another, 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 omissions. 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

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 (2) years, and the damages shall be in such an amount as may be
determined by the court or jury, including, but not limited to,
reasonable medical, hospital, funeral and burial expenses, and lost
earnings of such deceased person resulting from said wrongful act or
omission. 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. 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. If such decedent departs this life leaving no such widow
or widower, or dependent children or dependent next of kin, surviving
her of him, the damages inure to the exclusive benefit of the person or
persons furnishing necessary and reasonable hospitalization or hospital
services in connection with the last illness or injury of the decedent,
performing necessary and reasonable medical or surgical services in
connection with the last illness or injury of the decedent, to a funeral
director or funeral home for the necessary and reasonable funeral and
burial expenses, and to the personal representative, as such, for the
necessary and reasonable costs and expenses of administering the
estate and prosecuting or compromising the action, including a
reasonable attorney’s fee, 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 such hospitalization or
hospital service, medical and surgical services, such funeral expenses,
and such costs and expenses of administration, including attorney fees.
I.C. § 34-23-1-1.

[9] As such, the GWDS delineates two categories of decedents. The first category

includes all decedents generally, in which case the estate is entitled to recover

damages “including, but not limited to, reasonable medical, hospital, funeral

and burial expenses, and lost earnings of such deceased person resulting from

said wrongful act or omission.” I.C. § 34-23-1-1. The second category includes

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 only those decedents who “depart this life leaving no such widow or widower,

or dependent children or dependent next of kin, surviving him or her.” I.C. §

34-23-1-1. In such instances, the estate is expressly entitled to recover

reasonable attorneys’ fees in “prosecuting or compromising the action.” I.C. §

34-23-1-1.

[10] In combination with the GWDS, our General Assembly has also enacted two

additional wrongful death provisions: the Adult Wrongful Death Statute, I.C. §

34-23-1-2 (AWDS), and the Child Wrongful Death Statute, I.C. § 34-23-2-1

(CWDS). Both statutes stipulate that, as a necessary prerequisite for recovery,

the decedent must be unmarried and have no dependents. While the CWDS

expressly allows for the award of attorneys’ fees, the AWDS does not.

However, in McCabe v. Commissioner, Indiana Department of Insurance, 949

N.E.2d 816, 819-21 (Ind. 2011), we held attorneys’ fees to be included in the

phrase “may include but are not limited to” and thus recoverable under the

AWDS. See I.C. § 34-23-1-2(c)(3).

[11] Even though similar language—“may include but are not limited to”—is

included in the first category of the GWDS, our supreme court reached the

opposite conclusion in SCI Propane based on the distinct application and

remedies afforded to the first category of decedents under the GWDS, i.e., those

survived by a spouse/and or dependents. See SCI Propane, --- N.E.3d ---, at *7.

Finding the phrase ambiguous, the supreme court relied on Estate of Kuba by

Kuba v. Ristow Trucking Co., 508 N.E.2d 1, 2 (Ind. 1987), and Durham ex. rel.

Estate of Wade v. U-Haul International, 745 N.E.2d 755, 763 (Ind. 2001), to

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construe the language narrowly. See SCI Propane, --- N.E.3d ---, at *7. As such,

the court concluded:

A wrongful death action is pursued by the personal representative of
the decedent’s estate. As such, the estate is responsible for all legal
expenses in pursuing a wrongful death claim. In wrongful death suits
falling within the first GWDS category, however, 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. Attorneys’ fees thus do not qualify as damages, because
since the estate ultimately bears the burden for their payment, such fees
do not “evolve from a deprivation to a survivor.” Although the
payment of fees may deplete the estate and reduce the amount of a
surviving spouse and/or [a] dependent’s inheritance, such depletion is
not of the same genre as those damages enumerated in the statute,
such as lost earnings.
Id. at *8 (emphasis in original) (internal citations and footnotes omitted). The

court reasoned that:

This outcome is neither absurd nor contrary to public policy. The
existence of a surviving spouse or dependent of a decedent creates a
significant incentive for the personal representative of the estate to
pursue a wrongful death claim for the benefit of the survivors, who
were perhaps financially dependent upon the decedent and could face
significant hardship without his or her income. In the absence of such
survivors, however, the only party arguably damaged as a matter of
law is the decedent, and thus the estate itself. It is therefore 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 that wrongful conduct in the future.
Id. at *9 (internal footnotes omitted).

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[12] Accordingly, where, as here, Robbins, as the surviving widow, 1 pursues the

recovery of attorneys’ fees as compensatory damages under the first category of

the GWDS, she is not entitled to an award thereof. We reverse the trial court’s

award of $2,400,000.00 in attorneys’ fees and prejudgment interest in the

amount of $622,028.11. See id. at *10.

CONCLUSION

[13] Based on the foregoing, we conclude that Robbins, as the surviving spouse, is

not entitled to recover attorneys’ fees and prejudgment interest as compensable

damages under the GWDS.

[14] Reversed.

[15] Bailey, J. and Barnes, J. concur

1
It is not controlling that Robbins is both administratrix of the estate and the decedent’s widow; acting in
both capacities does not convert the legal expenses she paid as administratrix into damages she personally
suffered. See SCI Propane, --- N.E.3d at *8, n.6.

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