McCabe v. Commissioner, Indiana Department of Insurance

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Gloria J. Danielson Susan E. Cline
Ladendorf & Ladendorf Lewis Wagner, LLP
Indianapolis, Indiana Indianapolis, Indiana
______________________________________________________________________________

In the
FILED
Indiana Supreme Court Jun 29 2011, 2:04 pm
_________________________________
CLERK
of the supreme court,

No. 49S02-1010-CV-602 court of appeals and
tax court

JEFFERY H. MCCABE, Appellant (Plaintiff below),

v.

COMMISSIONER, INDIANA DEPARTMENT OF INSURANCE
AS ADMINISTRATOR OF THE INDIANA PATIENT'S
COMPENSATION FUND, Appellee (Defendant below).
_________________________________

Interlocutory Appeal from the Marion Circuit Court, No. 49C01-0809-CT-43128
The Honorable Louis Rosenberg, Judge
_________________________________

On Transfer from the Indiana Court of Appeals, No. 49A02-0908-CV-728
_________________________________

June 29, 2011

Dickson, Justice.

In this interlocutory appeal, the plaintiff in a medical negligence wrongful death action
challenges the trial court's grant of partial summary judgment finding that the Adult Wrongful
Death Statute ("AWDS"), Ind. Code § 34-23-1-2, does not allow recovery of attorney fees. The
Court of Appeals affirmed the partial summary judgment. McCabe v. Comm'r, Ind. Dep't of Ins.,
930 N.E.2d 1202 (Ind. Ct. App. 2010). In contrast, other panels of the Court of Appeals have
recently concluded to the contrary. Hematology-Oncology of Ind., P.C. v. Fruits, 932 N.E.2d
698 (Ind. Ct. App. 2010), trans. granted today, ___ N.E.2d ___ (Ind. 2011); Ind. Patient's Comp.
Fund v. Brown, 934 N.E.2d 168 (Ind. Ct. App. 2010), trans. granted today, ___ N.E.2d ___ (Ind.
2011); Hillebrand v. Estate of Large, 914 N.E.2d 846 (Ind. Ct. App. 2009), trans. not sought. To
resolve this issue, we granted transfer in McCabe and now hold that attorney fees are recoverable
under the AWDS.

Following the death of his mother, Jean Francis McCabe, at the age of 76, Jeffery
McCabe asserted a medical malpractice claim against her medical care providers, who eventually
agreed "to a settlement sufficient to allow McCabe to petition the Indiana Patient's Compensation
Fund ("Fund") for additional compensation." Appellant's Br. at 1. As personal representative of
his mother's estate, the plaintiff filed this action seeking additional recovery from the Fund for
the loss of love and companionship, medical expenses, burial expenses, plus costs, expenses, and
attorney fees related to the administration of the wrongful death estate and the prosecution of the
action. The trial court granted partial summary judgment to the Fund on two issues, finding (a)
that the General Wrongful Death Statute ("GWDS"), Ind. Code § 34-23-1-1, and the AWDS,
Ind. Code § 34-23-1-2, "are disjunctive remedies" and that the plaintiff, "having chosen to sue
under the AWDS . . . must look to that statute for authority to recover attorneys fees," and (b)
that the AWDS does not allow recovery of attorney fees. Appellant's App'x at 44–45. This in-
terlocutory appeal was authorized by the trial court and accepted by the Court of Appeals. The
plaintiff challenges only the availability of attorney fees under the AWDS but argues that the
provisions of the GWDS should be considered in construing the AWDS.

Located within Title 34 (Civil Law and Procedure) of the Indiana Code, Article 23 is
titled "Causes of Action: Wrongful Death." Within Article 23, there are two chapters, Chapter 1,
entitled "Wrongful Death Generally," and Chapter 2, entitled "Wrongful Death or Injury of a
Child." Chapter 1 contains two sections, with Section 1 (the GWDS) generally permitting
wrongful death actions and expressly permitting recovery of specified types of pecuniary damag-
es including attorney fees and costs and expenses of administration and prosecution of the action.
Ind. Code § 34-23-1-1 (originally enacted in 1881 and subsequently amended several times
through 1998). Section 2 (the AWDS) authorizes a wrongful death action specifically for the
death of an adult person who is unmarried and without any dependents and expressly permits
recovery for specified damages including but not limited to specified types of damages including
"loss of the adult person's love and companionship" but not explicitly enumerating attorney fees

2
and costs of administration and prosecution of the action. Ind. Code § 34-23-1-2 (enacted in
1999). Chapter 2 of Article 23 permits an action for the wrongful death of an unmarried child
without dependents and allows for recovery of specified types of damages, some of which in-
clude loss of the child's services, love, and companionship; costs of administration of the child's
estate; and reasonable attorney fees. Ind. Code § 34-23-2-1 (enacted in 1998 and amended in
2007, 2008, and 2009).

The AWDS allows an action for the wrongful death of an unmarried adult without de-
pendents, with medical and funeral expenses recoverable by the decedent's estate and damages
for loss of love and companionship and other damages recoverable by the decedent's nondepen-
dent parents or children. It provides in relevant part:

(c) In an action to recover damages for the death of an adult person, the damages:
* * *
(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 necessi-
tated by the wrongful act or omission that caused the adult person's death.
(B) Loss of the adult person's love and companionship.
(d) Damages awarded under subsection (c)(3)(A) for medical, hospital, funeral, and
burial expenses inure to the exclusive benefit of the adult person's estate for the payment
of the expenses. The remainder of the damages inure to the exclusive benefit of a nonde-
pendent parent or nondependent child of the adult person.
* * *
(f) A parent or child who wishes to recover damages under this section has the burden
of proving that the parent or child had a genuine, substantial, and ongoing relationship
with the adult person before the parent or child may recover damages.
(g) In an action brought under this section, a court or a jury may not hear evidence
concerning the lost earnings of the adult person that occur as a result of the wrongful act
or omission.

Ind. Code § 34-23-1-2 (emphasis added). The plaintiff argues that attorney fees are not among
the items for which damages are explicitly prohibited by subsections (c)(2) and (g), but rather are
encompassed within the above-italicized general introductory phrase "may include but are not
limited to."

3
 To support its claim that the AWDS does not allow for the recovery of attorney fees, the
Fund argues (a) that differences between the AWDS and the provisions of Indiana's other wrong-
ful death statutes,1 which allow for recovery of attorney fees, indicate a contrary legislative intent
for the AWDS; and (b) that the "may include but are not limited to" phrase should not be con-
strued in a manner contrary to such presumed legislative intent.

This phrase was the focus of our recent decision in Butler v. Ind. Dep't of Ins., 904
N.E.2d 198 (Ind. 2009). There we considered the language of the AWDS, particularly the "may
include but are not limited to" phrase, with respect to medical expenses "necessitated by the
wrongful act or omission that caused the adult person's death." Ind. Code § 34-23-1-2(c)(3)(A).
We concluded:
This open-ended phrase ["may include but are not limited to"] permits recovery of dam-
ages other than those items designated in subsections (c)(3)(A) and (c)(3)(B), but does
not direct the expansion of the circumscribed damages defined within (A) and (B). The
"include but not limited to" phrase does not expand the class of such necessitated ex-
penses.

Butler, 904 N.E.2d at 202–03. Because the charges for medical services initially were billed but
thereafter were settled for a lower amount pursuant to agreements between health care providers
and insurers or government agencies, we held that the amount recoverable under the AWDS is
"the portion of the billed charges ultimately accepted pursuant to such contractual adjustments."
Id. at 203.

In contrast to the issue of medical expenses discussed in Butler and expressly designated
in subsection (c)(3)(A) of the AWDS, recovery for attorney fees is not specifically described nor
is it prohibited. The restriction in Butler regarding "such necessitated expenses" thus does not
apply to the availability of attorney fees.

As noted in Butler, we must give an unambiguous statute its clear and plain meaning. Id.
at 202, and cases cited therein. When a statute is unambiguous, it is unnecessary to engage in
statutory construction in an effort to determine and give effect to legislative intent. See Durham

1
The General Wrongful Death Statute, Ind. Code § 34-23-1-1, and the Child Wrongful Death
Statute ("CWDS"), Ind. Code § 34-23-2-1.

4
ex rel. Estate of Wade v. U-Haul Int'l, 745 N.E.2d 755, 759 (Ind. 2001); Ind. Dep't of State Rev-
enue v. Horizon Bancorp, 644 N.E.2d 870, 872 (Ind. 1994). The initial question is thus whether
the introductory phrase "may include but are not limited to" is ambiguous, that is, whether it is
susceptible to more than one interpretation. Varner v. Ind. Parole Bd., 922 N.E.2d 610, 612 (Ind.
2010). The phrase is a standard expression designating the permissive inclusion of an open-
ended class of items not to be limited by designation of specific items that follow. As to whether
a plaintiff's attorney fees and litigation expenses are part of the open-ended class, however, we
find that the phrase is susceptible to differing, reasonable interpretations and thus cannot be
viewed as unambiguous. This Court has in fact engaged in statutory construction of similar
open-ended phrases to determine whether other types of damages are recoverable. See Durham,
745 N.E.2d at 758–63 (holding that punitive damages are not recoverable under the GWDS); Es-
tate of Kuba v. Ristow Trucking Co., Inc., 508 N.E.2d 1, 2–3 (Ind. 1987) (holding that statutory
treble damages are not available in wrongful death actions).

Three principal statutory construction arguments are urged in support of the trial court's
ruling prohibiting the recovery of attorney fees under the AWDS. First, the Fund urges that the
AWDS's language differences from the GWDS and the CWDS suggest specific legislative intent
to preclude attorney fees in actions under the AWDS. The plaintiff also cites the GWDS but
contends that it and the AWDS, as the second section of the same chapter of the Code, should be
read in pari materia and harmoniously construed to allow recovery of attorney fees under both
sections. Significantly, the CWDS, like the GWDS, explicitly permits recovery of attorney fees
and expenses.

A second argument in support of the trial court's ruling emphasizes the so-called "Ameri-
can Rule" under which each party is responsible for paying his or her own attorney fees unless
there is contrary statutory authority. The applicability of this rationale depends on whether the
AWDS is construed to authorize recovery of attorney fees. The third argument asserts the gener-
al rule that would require a strict construction of the AWDS as a statute in derogation of com-
mon law.

In statutory interpretation, however, paramount consideration must be given to the basic

5
principle that two statutes that apply to the same subject matter must be construed harmoniously
if possible. Marion County Sheriff's Merit Bd. v. Peoples Broad. Corp., 547 N.E.2d, 235, 237
(Ind. 1989). This rule takes precedence over other rules of statutory construction. Id.; Johnson
County Farm Bureau Coop. Ass'n v. Ind. Dep't of State Revenue, 568 N.E.2d 578, 584 (Ind. T.C.
1991) ("This rule is so important that it trumps all other rules of statutory construction.").

The enactment of the AWDS in 1999 occurred shortly after the decision in Estate of Mil-
ler v. City of Hammond, 691 N.E.2d 1310 (Ind. Ct. App. 1998), trans. denied, in which the court
held that nondependent parents could not recover damages for the wrongful death of their 23-
year-old unmarried adult son. The 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 the narrow class of actions for the wrongful death of an unmarried adult without dependents.
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 § 34-23-1-2(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. Significantly, the
General Assembly designated the GWDS as Section 1 and the AWDS as Section 2 of Chapter 1
addressing "Wrongful Death Generally." Considering the GWDS and the AWDS in pari mate-
ria 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 dam-
ages permitted under the GWDS.

We acknowledge that a similar non-exhaustive list of damages in the GWDS2 has been
constrained to allow recovery only of damages of a pecuniary nature. See Durham, 745 N.E.2d
at 763 (finding the "but not limited to" phrase to allow for other compensatory damages, but not
punitive damages); Kuba, 508 N.E.2d at 2 (declining to expand "but not limited to" to include

2
The General Wrongful Death Statute states in part that "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 omis-
sion." Ind. Code § 34-23-1-1 (emphasis added).

6
statutory treble damages due to a tortfeasor's driving while intoxicated, which treble damages are
not "of the same genre" as the pecuniary losses permitted by the wrongful death statute). While
these decisions may restrain the outer limits of the "but not limited to" language, they do not un-
dermine our conclusion that attorney fees, as specifically permitted by the GWDS, are included
in the open-ended authorization of permissible compensatory damages under the AWDS.

In conclusion, we hold that reasonable attorney fees incurred in the prosecution of an ac-
tion under the Adult Wrongful Death Statute are within the damages permitted by the statute.3
The entry of partial summary judgment is reversed. This cause is remanded for further proceed-
ings.

Sullivan and David, JJ., concur. Shepard, C.J., dissents with separate opinion in which Rucker,
J., concurs.

3
The Fund additionally urges on appeal that attorney fees and expenses, even if found to be
available under the AWDS, cannot be recovered from the Fund under the Medical Malpractice Act. This
issue is not within the scope of the order certified for interlocutory appeal.

7
SHEPARD, Chief Justice, dissenting.

I would have expected that two straightforward principles would lead this Court to the
same result reached by the trial judge and by the Court of Appeals.

First, this state’s tribunals have long adhered to what is typically called the “American
Rule,” which is to say that each party to a lawsuit pays his or her own attorney fees unless there
is a statute, court rule, or agreement between them that provides otherwise. Porter Development,
LLC v. First Nat’l Bank of Valparaiso, 866 N.E.2d 775 (Ind. 2007); Gavin v. Miller, 222 Ind.
459, 54 N.E.2d 277 (1944). We have enforced this rule in a variety of settings. See, e.g., Pond
v. Pond, 700 N.E.2d 1130 (Ind. 1998) (attorney fees in dissolution); Malachowski v. Bank One,
Indianapolis, N.A., 682 N.E.2d 530 (Ind. 1997) (attorney fees in trust code).

We have likewise enforced this rule with reliable vigilance in tort litigation. Even where
there is a statutory basis for requesting fees, we have administered the statute by barring fees ex-
cept in the most egregious circumstances, that is, when ordering fees is tantamount to punish-
ment for outrageous behavior. Kahn v. Cundiff, 543 N.E.2d 627 (Ind. 1989) (adopting 533
N.E.2d 164, 171) (fee request based on statute governing frivolous litigation requires that the
claim or defense was undertaken “primarily for the purpose of harassment”).

In the present case, the majority acknowledges, as it must, that the General Assembly has
not included the term “attorney fees” in the Code provision at issue, even though the legislature
did so in similar settings and almost contemporaneously. This difference alone would customari-
ly be thought indicative of legislative intent.

But the majority says that the legislature has in fact enacted a provision on fees in the
Adult Wrongful Death Statute. It is the “may include but are not limited to” phrase that intro-
duces those things for which recompense may be obtained.

That assertion leads straight to a second rule of construction commonly applied to sta-
tutes enacted in a field generally covered by the common law. As Justice Dickson has reminded
us, a statute “in derogation of common law must be strictly construed.” Giles v. Brown County
ex rel. its Bd. of Comm’rs, 868 N.E.2d 478, 482 (Ind. 2007) (Dickson, J., dissenting). Statutes
authorizing recovery for wrongful death, of course, are undeniably in derogation of the common
law.

This bedrock principle of interpretation is especially valuable to interpreting the statutes
we have before us. Both the Adult Wrongful Death Statute and the Child Wrongful Death Sta-
tute were enacted for the benefit of claimants whose recovery under the common law would have
been non-existent, or whose recovery under the General Wrongful Death Statute would have
been minimal due to the operation of rules about economic loss. In extending a remedy where
little or no recovery would likely have occurred before, the legislature placed boundaries around
the amounts that could be recovered. In AWDS, the boundaries take the form of statutory caps
on damages; in CWDS, the boundaries are temporal (i.e., for damages only until the child would
have reached twenty or twenty-three, if a student).

It seems altogether plausible that in extending the possibility of recovery where little
chance or none existed before, the legislature would (indeed the words enacted demonstrate that
it did) make discreet decisions about various elements of recovery, measures of recovery, limits
on damages, and the availability of fees. In particular, it seems unsurprising that it would author-
ize attorney fees for the more limited recovery authorized in CWDS and decide not to do so for
AWDS. Whether or not this describes the legislative intent, our long-standing rule about strict
construction of statutes in derogation of the common law would point away from the decision
announced today.

Rucker, J., concurs.

2