dissenting with separate opinion.
I respectfully dissent from the majority's decision affirming the trial court's grant of partial summary judgment in favor of the Fund. Although, as noted by the majority, the specific issue raised today has not been previously decided, we *1210are not completely without guidance in interpreting the open-ended phrase "but are not limited to" included in the AWDS. One of the earliest cases analyzing this language is Estate of Kuba v. Ristow Trucking Co., Inc., 508 N.E.2d 1, 2 (Ind.1987), where our supreme court responded to the Seventh Cireuit's certified question whether treble damages are available under the wrongful death statute. Analyzing the wrongful death statute applicable in the case-at that time, the GWDS-our supreme court stated
The damages now recoverable for wrongful death are those specified by statute, namely reasonable medical, hospital, funeral and burial expenses, and lost earnings, and those included by judicial interpretation. While the wrongful death statute does include the phrase "but not limited to," this language can not be broadly construed to permit any perceivable damage claim to be available in a wrongful death action. The "loss" recoverable by a claimant must be of the same genre as those enumerated in the statute. The loss must evolve from a deprivation to a survivor as a result of the death and the value assigned is measured by the value of that loss.
* * *
Damages recoverable under the wrongful death statute thus serve a compensatory goal. The damages which are not expressly enumerated in the statute, but are nevertheless deemed recoverable, arise strictly from the individual relationship between the decedent and a survivor.
Id. Based on this clarification, the supreme court concluded that because the treble damage statute is punitive in nature, imposing a greater amount of damages than those actually incurred due to the violation of a criminal statute, a recovery for treble damages is adverse to the provisions of the wrongful death statute. Id.
More recently, our supreme court reiterated this interpretation in Butler v. Ind. Dept. of Ins., 904 N.E.2d 198, 203 (Ind.2009), where the court answered negatively whether an estate in a wrongful death action is entitled to recover the difference between the medical expenses billed and amount accepted by medical providers pursuant to a contractual agreement. In reaching this conclusion, the Butler court evaluated the introductory language of Subsection (c)(8) of the AWDS, which states that damages "may include but are not limited to the following" and found that
[this open-ended phrase permits recovery of damages other than those items designated in subsections (c)(8)(A) and (©)(3)(B), but does not direct the expansion of the cireumseribed damages defined within (A) and (B). The "include but not limited to" phrase does not expand the class of such necessitated damages.
Id.
The majority and I clearly part ways with the interpretation of the final sentence in this quote. Read within the context of the issue raised in Butler and the paragraph immediately preceding this quote,3 it is clear that our supreme court *1211intended that the enumerated classes of expenses referenced in subsections (C)@B)(A) and (B), which are necessitated by the wrongful act or omission, cannot be expanded beyond a "reasonable" expense as was argued by Butler. Our supreme court explicitly and very clearly reiterated that the open-ended phrase only refers to damages other than those items already enumerated in sections (A) and (B) and cannot influence or expand the amount of damages already specified within these sections.
Thus, based on the Estate of Kuba and Butler, our supreme court deems the AWDS to allow damages which are not expressly enumerated in the statute, provided the damages compensate those who have sustained pecuniary loss by the decedent's death.
While not explicitly held as such, in Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846, 848 (Ind.Ct.App.2009), we have already included reasonable attorney fees as recoverable damages in the AWDS. In Hillebrand, this court was faced with the issue whether reasonable attorney fees should be paid from the probate estate or from the settlement agreement in pursuit of the wrongful death claim. Relying on Thomas v. Eads, 400 N.E.2d 778, 782 n. 4 (Ind.Ct.App.1980), reh'g denied, we indicated in that "the Thomas court noted in a footnote that even though the statute does not expressly include attorney fees as recoverable damages in the case the decedent leaves dependents or next of kin, attorney fees are nevertheless included in this list of damages." Id. at 850. Recognizing a footnote's legal value, we nevertheless found Thomas' analysis persuasive and we expanded its reasoning to both the GWDS and AWDS. Id. at 850. As such, we stated in dicta that
Both sections of the wrongful death act list the damages as "may include but are not limited to the following." See I.C. §§ 34-23-1-1; -2(c0)(B). Because this list of recoverable damages in a wrongful death action is expressly illustrative and not exclusive, we interpret the statute to allow in every situation-regardless whether the decedent leaves a widow or widower, dependents or dependent next of kin-the recovery of the reasonable costs of administering the decedent's estate and compromising the action, including attorney fees.
Id.
Turning to the issue presented to us in Hillebrand, we concluded that the costs of administering the decedent's estate or prosecuting or compromising the action "are to be taken from the settlement proceeds for the exclusive benefit of the estate and the estate is responsible for their payment." Id. at 851.
In light of the Estate of Kuba, Butler, and Hillebrand, I would hold that reasonable attorney fees are recoverable damages under the AWDS. While the AWDS does not list every damage recoverable, its *1212open-ended phrase "may include but are not limited to" is not without boundaries but rather is restricted by the nature of the damages which the survivor proposes to recover in the action. As such, the damages which may be included must arise from a pecuniary loss to a survivor as a result of the decedent's death and must be compensatory in nature. Viewing attorney fees in this regard, I note that these fees are characterized as compensatory as they reimburse the personal representative for the costs incurred from the administration of the wrongful death estate and the prosecution of the claim. These costs are pecuniary losses necessitated by the wrongful death; without the wrongful death these costs would not have been incurred.
Furthermore, unlike the majority's, this holding produces a harmonious result between the GWDS, AWDS, and CWDS. At the moment, only the GWDS which pertains to adults who die without spouses or dependents and the CWDS which pertains to the wrongful death of children, unambiguously allow recovery of attorney fees and expenses for the administration of the wrongful death estate. I can discern no logical reason why the AWDS would not allow reasonable attorney fees as well by virtue of statutory interpretation of the "may include but are not limited to" language. If the Legislature would have explicitly precluded the recovery of reasonable attorney fees in the AWDS then it could have specifically mentioned these damages in Subsection (c)(2) which enumerates the damages which are excluded from recovery. Therefore, I conclude that the trial court erred when it found that attorney fees and expenses incurred by the personal representative's attorney are not recoverable damages under Indiana's Adult Wrongful Death Statute.
. The iwo paragraphs together read as follows
We find the language in Section 2(c)(3)(A) to be unambiguous. It specified that damages are allowable for "[rleasonable medical, hospital ... expenses necessitated by" the wrongful conduct that caused the death. The statutory language does not employ the common law standard to generally authorize recovery for the reasonable value of medical care and treatment. Nor is the scope of permissible damages merely "reasonable expenses," which in conjunction with Evidence Rule 413 could be under*1211stood to include the total amounts billed. Rather, the language of this statutory wrongful death action authorizes recovery only of reasonable medical "expenses necessitated" by another's wrongful conduct. Where charges for medical services are initially billed but thereafter settled for a lower amount pursuant to agreements with health insurers or government agencies, the difference is not a "necessitated" expense. This conclusion is not affected by the introductory language of Subsection (c)(3), which states that damages "may include but are not limited to the following." This open-ended phrase permits recovery of damages 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 expenses.
Butler, 904 N.E.2d at 202-03.