FILED
Jun 20 2017, 8:20 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Katherine J. Noel Nicholas C. Deets
Jacob D. Winkler Hovde Dassow & Deets LLC
Noel Law Indianapolis, Indiana
Kokomo, Indiana
ATTORNEYS FOR AMICUS CURIAE
Robert W. Johnson
Johnson Jensen LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angel Shores Mobile Home June 20, 2017
Park, Inc., Court of Appeals Case No.
Appellant-Defendant, 79A02-1605-CT-1106
Appeal from the Tippecanoe
v. Superior Court
The Honorable Randy J. Williams,
John Crays and Megan Crays, Judge
Appellees-Plaintiffs Trial Court Cause No.
79D01-1101-CT-10
May, Judge.
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[1] Angel Shores Mobile Home Park, Inc. (“Angel Shores”) appeals the trial
court’s award of attorney’s fees and litigation expenses 1 to John and Megan
Crays (“the Crays”). Angel Shores presents multiple issues for our
consideration. Consolidated and restated they are:
1. Whether the trial court erred when it awarded the Crays
attorney’s fees under the Child Wrongful Death Statute
(“CWDS”);
2. Whether the trial court erred when it awarded the Crays
litigation expenses under the CWDS; and
3. Whether the trial court erred when it did not reduce the
amount of litigation expenses due to the Crays based on
the percentage of Angel Shores’ fault.
The Crays cross-appeal, arguing Angel Shores waived its appeal of these issues
as part of the parties’ Agreed Stipulation. 2 We affirm.
Facts and Procedural History 3
1
The words “costs” and “expenses” are used interchangeably throughout the briefs, appendix, and cases.
For consistency, we will use the word “expenses.” As we conclude infra the terms are quite different, and we
look to the legislature for clarification.
2
The Indiana Trial Lawyers Association (“ITLA”) filed an amicus brief arguing attorney’s fees and litigation
expenses are recoverable under the CWDS and litigation expenses are not reduced by comparative fault.
3
We held oral argument on this matter on February 16, 2017, at the Indiana Statehouse. We thank counsel
for their advocacy.
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[2] On July 25, 2010, the Crays’ thirteen-year-old son, Zachary, was electrocuted
and killed while swimming at the home of Bryan and Donna Wagner (“the
Wagners”), who have a lease agreement with Angel Shores. On January 28,
2011, the Crays filed a wrongful death action under the CWDS, Indiana Code
Section 34-23-2-1, against the Wagners and Angel Shores. On June 28, 2012,
counsel for Angel Shores sent counsel for the Crays a letter stating, “I am in
agreement with your suggestion that we allow the Judge to determine attorney
fees and expenses after trial.” (Appellant’s App. Vol. II at 74.) On September
5, 2013, the Crays and the Wagners reached a settlement after mediation. After
the settlement, Angel Shores named the Wagners as non-party defendants in
the remaining action between the Crays and Angel Shores.
[3] On March 3, 2014, a week before the jury trial commenced, the Crays and
Angel Shores entered into an Agreed Stipulation, that had the following terms:
1. The case will be tried under a $200,000/$900,000 high-low
agreement.
2. [Angel Shores’] counsel will deliver to [the Crays’] counsel a
check in the amount of $200,000.00 prior to the beginning of
trial, and said amount will act as a credit against any amount
[Angel Shores] would owe pursuant to a verdict/judgment. This
payment will not have a claw-back provision; the $200,000.00
will be retained by [the Crays] even if the verdict for [the Crays]
is for less or zero.
3. [Angel Shores’] maximum exposure at trial will be a total of
$900,000 (or an additional $700,000). A verdict in excess of
$900,000 will be entered as the judgment but will not be payable
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to [the Crays]. Upon payment of the maximum amount owed
under this agreement, [the Crays] will file a satisfaction of
judgment.
4. The trial verdict will be final. Neither side will have the right
to file a motion for a new trial, a motion to correct errors, a
motion for additur/remitter, or to appeal.
(Id. at 64-5.) The jury trial began on March 10, 2014, and the jury returned a
verdict on March 13, 2014:
We, the Jury assign the following percentages of fault: Angel
Shores Mobile Home Park, Inc., 5% and Bryan Wagner 95%.
We also decide that the total amount of damages the Plaintiffs,
John Crays and Megan Crays, are entitled to recover without
considering the fault percentages, is $3,000,000.00. We, the jury,
now decide in favor of Plaintiffs John Crays and Megan Crays
and assess damages against the Defendant, Angel Shores Mobile
Home Park, Inc., as follows:
Total Damages: $3,000,000.00
Defendant Angel Shores Mobile Home Park’s Percentage of
Fault is 5%.
Plaintiff’s Verdict Amount: $150,000.00
(Id. at 25.)
[4] On April 16, 2014, the Crays filed their motion for award of attorney’s fees and
litigation expenses. After extensive briefing on the issue, the trial court held a
hearing regarding the Crays’ motion on December 22, 2015, and took the
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matter under advisement. On February 16, 2016, the trial court ordered Angel
Shores to pay the Crays’ attorney’s fees and litigation expenses, stating:
The matter having come before the Court on [the Crays’] Motion
for Attorney Fees and Costs, the Court hereby finds that these
elements of damages are recoverable pursuant to the Child
Wrongful Death Statute (“CWDS”), Ind. Code 34-23-2-1, SCI
Propane v. The Estate of Frederick, Cause # 55S04-1508-PL-501;
McCabe v. Ind. Dept. Of Insurance, 949 N.E.2d 816 (Ind. 2001); and
Hematology and Oncology of Ind. P.C. v. Fruits, 950 N.E.2d 294
(Ind. 2011). The Court awards [the Crays] the sum of $60,000.00
for attorney fees and $72,864.85 for litigation costs. These
amounts are added to the jury’s verdict of $150,000 for a total
judgment of $282,864.85. Pursuant to the parties [sic] Agreed
Stipulation, the amount owed by [Angel Shores] shall be reduced
by the advance payment of $200,000 made prior to trial.
(Id. at 18.)
[5] On March 7, 2016, Angel Shores filed a motion to correct error, which was
deemed denied pursuant to Indiana Trial Rule 53.3 4 on April 21, 2016. On
May 16, 2016, Angel Shores filed this appeal. On June 24, 2016, the Crays
filed a motion to enforce settlement agreement, dismiss appeal, and remand to
4
Indiana Trial Rule 53.3 provides:
In the event a court fails for forty-five (45) days to set a Motion to Correct Error for
hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was
heard or forty-five (45) days after it was filed, if no hearing is required, the pending
Motion to Correct Error shall be deemed denied.
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the trial court, arguing, in part, the parties’ Agreed Stipulation barred Angel
Shores’ appeal. On August 2, 2016, our Court denied the Crays’ motions.
Discussion and Decision
I. Agreed Stipulation
[6] On cross-appeal, the Crays argue the parties’ Agreed Stipulation precludes all
issues Angel Shores presents on appeal and thus the appeal should be
dismissed. Our standard of review for settlement agreements is well-
established:
Settlement agreements are governed by the same general
principles of contract law as any other agreement. The
interpretation and construction of a contract is a function for the
courts. If the contract language is unambiguous and the intent of
the parties is discernible from the written contract, the court is to
give effect to the terms of the contract. A contract is ambiguous
if a reasonable person would find the contract subject to more
than one interpretation; however, the terms of a contract are not
ambiguous merely because the parties disagree as to their
interpretation. When the contract terms are clear and
unambiguous, the terms are conclusive and we do not construe
the contract or look to extrinsic evidence, but will merely apply
the contractual provisions.
Fackler v. Powell, 891 N.E.2d 1091, 1095-6 (Ind. Ct. App. 2008) (internal
citations omitted), trans. denied. The relevant clause in the parties’ Agreed
Stipulation states: “The trial verdict will be final. Neither side will have the
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right to file a motion for a new trial, a motion to correct errors, a motion for
additur/remitter [sic], or to appeal.” (Appellant’s App. Vol. II at 64-5.)
[7] The Crays argue the language of the Agreed Stipulation “is unambiguous that
neither side may appeal.” (Br. of Appellee at 16.) Angel Shores argues the
Agreed Stipulation applies only to the jury’s verdict, and not to the trial court’s
award of attorney’s fees and litigation costs, as the relevant clause specifically
uses the word “verdict” and not “judgment.”
[8] When the terms of the contract are not ambiguous, we will give them their
plain and ordinary meaning. Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind. Ct.
App. 2006). In ordinary language, the word “verdict” means “the finding or
decision of a jury on the matter submitted to it in trial.” https://www.merriam-
webster.com/dictionary/verdict (last accessed February 28, 2017). The legal
definition is almost identical - a verdict is “a jury’s finding or decision on the
factual issues of a case.” Black’s Law Dictionary at 1791 (10th ed. 2014). Thus,
the clause in the Settlement Agreement stating, “The trial verdict will be final.
Neither side will have the right to . . . appeal[,]” (Appellant’s App. Vol. II at 64-
5), refers only to the jury’s decision on fault. The clause in the Agreed
Stipulation does not waive appeal on the issue of attorney’s fees and litigation
expenses. Thus, we turn to the issues raised by Angel Shores.
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II. The Child Wrongful Death Statute
[9] Angel Shores asserts the trial court abused its discretion when it awarded
attorney’s fees and litigation expenses to the Crays under the CWDS. The
CWDS, provides, in relevant part:
(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.
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*****
(j) This section does not affect or supersede any other right,
remedy, or defense provided by any other law.
Ind. Code § 34-23-2-1.
[10] The parties’ arguments address the construction of the CWDS in light of
Indiana’s General Wrongful Death Statute (“GWDS”), which provides:
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 omission.
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 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 depart this life leaving no such widow or widower, or
dependent children or dependent next of kin, surviving her or
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
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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.
Ind. Code § 34-23-1-1.
A. Attorney’s Fees under the CWDS
[11] We review a decision to grant attorney’s fees for an abuse of discretion. R.L.
Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind. 2012). Indiana
generally adheres to the American Rule that a party must pay his own
attorney’s fees absent an agreement between the parties, a statute, or other rule
to the contrary. Id. at 458. Angel Shores argues the Crays cannot recover
attorney’s fees under the CWDS. The propriety of awarding attorney’s fees in
wrongful death actions has been discussed in recent appellate opinions, e.g.,
McCabe v. Commissioner, Indiana Dept. of Insurance, 949 N.E.2d 816 (Ind. 2011)
(Adult Wrongful Death Statute), and SCI Propane, LLC v. Frederick, 39 N.E.3d
675 (Ind. 2015) (General Wrongful Death Statute). However, the ability to
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recover attorney’s fees under the CWDS, in particular, is an issue of first
impression in Indiana.
[12] The interpretation of a statute is a question of law reserved for the courts.
Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846, 848 (Ind. Ct. App. 2009).
We review questions of law de novo, and we owe no deference to a trial court’s
legal conclusions. Id. Our main objective in statutory construction is to
determine, effect, and implement the intent of the legislature. Id. In
interpreting a statute, we will read the statute as a whole, attempting to give
effect to all provisions so that no section is held meaningless if it can be
reconciled with the rest of the statute. Id.
[13] An action for the wrongful death of a child did not exist at common law. Id. at
849. Thus, the CWDS is a derogation of common law and its provisions
should be strictly construed. See id. (Adult Wrongful Death Statute is a
derogation of common law and thus must be strictly construed). The parties
rely primarily on our Indiana Supreme Court’s recent holdings regarding the
availability of attorney’s fees under the Adult Wrongful Death Statute
(“AWDS”), McCabe, 949 N.E.2d at 821, 5 and the GWDS, SCI Propane, LLC, 39
N.E.3d at 679.
5
The trial court also relied on Hematology-Oncology of Indiana, P.C. v. Fruits, 950 N.E.2d 294 (Ind. 2011).
Fruits references and applies the holding in McCabe, which was decided the same day, without further
comment on the attorney’s fees issue. See Fruits, 950 N.E.2d at 295-6 (“Applying McCabe, we hold that the
trial court’s award of litigation expenses was authorized by [the Adult Wrongful Death Statute].”). Thus, we
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[14] In the first case, McCabe, as personal representative of his mother’s estate, filed
an action pursuant to the AWDS, requesting “additional recovery from the
[Indiana Patient’s Compensation] Fund … plus costs, expenses, and attorney
fees related to the administration of the wrongful death estate and the
prosecution of the action.” McCabe, 949 N.E.2d at 817-8. The trial court
granted partial summary judgment in favor of the Fund, after deciding McCabe
had to rely on the language of the AWDS to determine whether he was entitled
to attorney’s fees because the GWDS and the AWDS were “disjunctive
remedies.” Id. at 818. The trial court concluded attorney’s fees are not
recoverable under the AWDS and, thus, McCabe was not entitled to attorney’s
fees arising out of the action.
[15] When examining the trial court’s decision, our Indiana Supreme Court gave a
brief history of the GWDS, the AWDS, and the CWDS:
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 damages 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)
need not discuss Fruits in more detail, as it would not provide further insight into the issue of the award of
attorney’s fees.
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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 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 include
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).
Id. The AWDS states, in relevant part:
(c) In an action to recover damages for the death of an adult
person, the damages:
*****
(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…
Ind. Code § 34-23-1-2.
[16] The McCabe Court acknowledged that the AWDS lacked explicit language
providing for an award of attorney’s fees. Looking to the relationship between
the GWDS and the AWDS, however, the McCabe Court reasoned that the
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statute’s provision that damages “may include but are not limited to” those
specifically mentioned could be construed to permit the recovery of attorney’s
fees, especially where such an award was permitted under the GWDS. McCabe,
949 N.E.2d at 821. To support that conclusion, the Court relied on the
principle of statutory interpretation “that two statutes that apply to the same
subject matter must be construed harmoniously if possible,” which “takes
precedence over other rules of statutory interpretation.” Id. at 820. The court
continued:
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.”
Id. at 820-1. The Court then concluded: “Considering the GWDS and the
AWDS in pari materia 6 and warranting harmonious interpretation, we find that
6
In pari materia is a legal canon which allows statutes to be construed together, “so that inconsistencies in one
statute may be resolved by looking at another statute on the same subject.” Black’s Law Dictionary at 911
(10th ed. 2014).
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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.” Id. at 821 (footnote added).
[17] In SCI Propane, our Indiana Supreme Court addressed whether the GWDS
permitted recovery of attorney’s fees “as a form of damages when the decedent
is survived by a spouse and/or dependents.” 39 N.E.3d at 676. The Court
determined the GWDS delineates two separate categories of decedents:
The first category includes all decedents generally, without any
additional conditions, 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.” There is a fixed list of death-related expenses
available to the estate directly as damages: “medical, hospital,
funeral and burial[.]” The remaining damages, if any, must
“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.”
The second category includes only those decedents who “depart
this life leaving no such widow or widower, or dependent
children or dependent next of kin, surviving her or him.” In such
instances, the damages “inure to the exclusive benefit of the
person or persons furnishing” services related to the decedent’s
death, and the personal representative of the estate is expressly
entitled to recover reasonable attorneys’ fees in “prosecuting or
compromising the action.”
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Id. at 678. The Court noted the AWDS and the CWDS require the deceased to
be unmarried and without dependents, and thus, “every decedent in the second
GWDS category also satisfies the conditions to bring suit under either the
AWDS or the CWDS.” Id. at 679. The Court acknowledged its earlier
decision in McCabe and concluded that the McCabe decision dealt with those in
the second category of decedents. Id. Because the plaintiff in SCI Propane was
the widow of the deceased and the personal representative of his estate, the
court concluded that her claim fell within the first category of decedents under
the GWDS. Thus, the court held that Frederick, as a widow of the deceased,
was not entitled to an award of attorney’s fees under the GWDS. Id.
[18] The CWDS provides that a plaintiff in an action alleging the wrongful death of
a child may recover damages to pay the expense of “the administration of the
child’s estate, including reasonable attorney’s fees.” Ind. Code § 34-23-2-
1(f)(3)(E). Angel Shores contends that because the Crays filed their complaint
in their capacity as Zachary’s parents pursuant to Indiana Code § 34-23-2-1(c),
rather than as personal representatives administering Zachary’s estate, 7 the
Crays are not entitled to separate payment of attorney’s fees. Countering this
argument, the Crays direct us to McCabe and SCI Propane for the proposition
that, as with the AWDS, the CWDS amplifies the remedies provided by the
GWDS, and that because they fall within the second category of the GWDS, as
7
A personal representative would be appointed under the CWDS “[i]n the case of the death of the person to
whom custody of the child was awarded[.]” Ind. Code § 34-23-2-1(d).
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set forth in SCI Propane, they are entitled to attorney fees separate from the
award of compensatory damages.
[19] We agree with the Crays. The nature of their action brings them within the
second category set forth in SCI Propane: that of a plaintiff seeking relief for the
death of a dependent child. SCI Propane, 39 N.E.3d at 678. As in McCabe, the
CWDS operates as a “mere amplification” of those remedies available under
the GWDS. See McCabe, 949 N.E.2d at 840 (indicating the AWDS is a “mere
amplification” of the GWDS). Notably, the CWDS also amplifies the scope of
persons who can pursue a wrongful death claim: not only personal
representatives of estates, but parents can also bring such claims, Indiana Code
§ 34-23-2-1(c)(1), and the statute does not limit the payment of estate
administration expenses only to personal representatives. Ind. Code § 34-23-2-
1(f)(3)(E).
[20] Moreover, the plain language of the CWDS and caselaw interpreting the
AWDS support this result. In McCabe, the court noted that the language of the
AWDS provided a list of types of damages with the qualifier that the damages
“may include but are not limited to” those items. Ind. Code § 34-23-1-2(c)(3).
Here, the relevant language of the CWDS is, “[t]his section does not affect or
supersede any other right, remedy or defense provided by any other law.” Ind.
Code § 34-23-2-1(j). As the plain language of the CWDS allows for other
remedies as provided by law, and the second category of the GWDS provides
for attorney’s fees, it is logical to construe the two in harmony, and conclude
that a party filing an action under the CWDS, like a party filing an action under
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the AWDS, is entitled to attorney’s fees under the second category of the
GWDS. The Crays’ claim is thus one for which they may separately recover
attorney’s fees under the CWDS, and the trial court did not abuse its discretion
when it granted the Crays’ motion for fees.
B. Litigation Expenses under the CWDS
[21] Angel Shores argues the trial court erred when it awarded litigation expenses to
the Crays under the CWDS. Angel Shores argues those expenses the trial court
considered compensable as litigation expenses including “[the Crays’] counsel’s
parking violations and parking tickets, mileage reimbursements, deposition fees,
hotel stays, and restaurant bills[,]” (Br. of Appellant at 30), were not proper, as
we have held costs “is an accepted legal term of art that has been strictly
interpreted to include only filing fees and statutory witness fees. Thus, in the
absence of manifest contrary legislative intent, the term ‘costs’ must be given its
accepted meaning, which does not include litigation expenses.” (Id.) (quoting
City of Jeffersonville v. Environmental Mgmt. Corp., 954 N.E.2d 1000, 1014 (Ind.
Ct. App. 2011)).
[22] City of Jeffersonville is not applicable, as it addresses whether expenses are
recoverable under the general recovery statute, Indiana Code Section 34-52-1-1,
not the wrongful death statutes. We find instructive as precedent our Indiana
Supreme Court’s decisions in McCabe, 949 N.E.2d at 821 (affirming trial court’s
award of “costs, expenses, and attorney fees related to the administration of the
wrongful death estate and the prosecution of the action” under the AWDS);
Hematology-Oncology of Indiana, P.C. v. Fruits, 950 N.E.2d 294, 297 (Ind. 2011)
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(same holding, though limiting amount recoverable under the Medical
Malpractice Act); and Indiana Patients Compensation Fund v. Brown, 949 N.E.2d
822, 824 (Ind. 2011) (same holding as Fruits). Thus, we conclude expenses are
recoverable under the CWDS. 8
III. Application of Comparative Fault Percentage
[23] Angel Shores argues that the trial court abused its discretion when it assessed
the entirety of the Crays’ litigation expenses against it. Angel Shores contends
that under Indiana Code § 34-52-1-5, it would be liable for only 5% of the
plaintiffs’ expenses, in keeping with the total allocation of comparative fault
against it at trial as compared to the 95% fault rating attributed to the Wagners.
[24] Indiana Code § 34-52-1-5 provides, in relevant part, “In actions where there are
several plaintiffs or several defendants, the costs shall be apportioned according
to the judgment rendered.” Angel Shores’ approach rests on a reading of the
apportionment statute that looks to the language, “In actions where there are …
several defendants,” id., and construes it to have the same effect upon litigation
8
Relatedly, Angel Shores argues the Crays did not present any evidence beyond an exhibit attached to their
motion for award of attorney’s fees and expenses and, thus, the trial court erred in unilaterally determining
the expenses were related to the prosecution of the action arising from Zachary’s death. Angel Shores’
argument is waived because Angel Shores did not advance that argument before the trial court. See Lea v.
Lea, 691 N.E.2d 1214, 1218 (Ind. 1998) (issue presented for the first time on appeal is waived). Further, we
note Angel Shores pointed to certain charges they felt were egregious such as parking fees and mileage
expenses. At first blush, it would seem some of these expenses exceeded a reasonable amount, such as
parking fees in excess of $1,000. However, further inspection of the record reveals the ledger entered into
evidence was slightly skewed to the point the rows and columns did not line up properly. We encourage
counsel to thoroughly review their materials included in the appendices to ensure they accurately depict what
was submitted to the trial court.
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expenses as the Indiana Comparative Fault Act, Indiana Code § 34-51-2-1 et
seq., has upon compensatory damages in cases with designated, at-fault
nonparties. Given Angel Shores’ interpretation of the statute, the “costs …
apportioned according to the judgment rendered,” id., would be attributed to
the various parties involved in the action relative to the various liability
percentages entered at the time of judgment. The plaintiff would recover
expenses subsequent to the judgment only from those defendants that remained
parties to the action. The total litigation expenses taxed against those parties
would be determined by their relative liability as against at-fault nonparties as
determined by the judgment. On this reasoning, Angel Shores would bear only
5% of the total expenses: even though the case proceeded to trial with Angel
Shores as the sole defendant, Angel Shores was found to be only 5% at fault
under Indiana’s comparative fault scheme, and thus it could be liable for only
5% of the Crays’ litigation expenses.
[25] We disagree with this construction of the statute. We think the Legislature
identified the time of judgment as the point at which litigation expenses should
be allocated, and that those expenses should be allocated only among parties to
the action at the time of the entry of judgment. The language of the statute,
“where there are … several defendants, the costs shall be apportioned according
to the judgment rendered,” Indiana Code § 34-52-1-5, does not provide for a 5%
allocation of expenses against Angel Shores from the inception of the action
through its conclusion. The statutory language makes no mention of
nonparties, such as former defendants who have settled and been dismissed
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from the case. And while Angel Shores looks to the Comparative Fault Act for
guidance on the allocation of expenses, that statute addresses only
“compensatory damages for an injury attributable to the claimant’s contributory
fault.” Ind. Code § 34-51-2-5 (emphasis added). “[C]ompensatory damages for
an injury” are not the same as litigation expenses, and thus allocation based
upon the comparative fault of nonparties is not contemplated by the language of
Indiana Code § 34-52-1-5.
[26] Absent reliance upon the Comparative Fault Act, then, Indiana Code § 34-52-1-
5 provides for the allocation of litigation expenses only among those parties that
remained in the action through the entry of judgment. This rule ensures that
courts act in accordance with the Legislature’s concern for the state of the case
and the parties at the time of judgment, which is reflected in statutory language
requiring that expenses be apportioned among “defendants … according to the
judgment rendered.” Ind. Code § 34-52-1-5. This result also serves the
important policy interest of encouraging settlement, on the one hand, and
discouraging litigation against parties who should properly be released, on the
other. See Mendenhall v. Skinner and Broadbent Co., Inc., 728 N.E.2d 140, 145
(Ind. 2000) (noting that “[t]he policy of the law generally is to discourage
litigation and encourage negotiation and settlement of disputes”). By ensuring
that expenses may be taxed in full at the end of the litigation, defendants will be
encouraged to settle so that they can negotiate the extent of their exposure to
litigation expenses, rather than having them imposed by the court. Plaintiffs
will be encouraged to dismiss parties whose presence in the litigation is
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unnecessary, because there is assurance that the recovery of expenses will not
be diminished simply because a party was released from the litigation before the
case was resolved by a court or jury.
[27] Here, Angel Shores and the Crays agreed to submit the question of litigation
expenses to the trial court for resolution: counsel for Angel Shores stated, “I
am in agreement with your [counsel for the Crays] suggestion that we allow the
Judge to determine attorney fees and expenses after the trial.” (Appellant’s
App. Vol. II at 74.) As we held above, the parties’ agreement that capped
damages did not have the effect of entirely waiving appellate review. Likewise,
the agreement between counsel to submit the question of fees and expenses to
the trial court is not so explicit as to grant the trial court carte blanche to assess
any amount it wished without appellate review: the parties’ agreement simply
left the matter to the trial court’s discretion.
[28] Exercising that discretion, the trial court determined that Angel Shores was
responsible for paying the Crays’ litigation expenses without a reduction
proportionate to Angel Shores’ comparative fault relative to the Wagners, who
by the time of trial were a nonparty. This comports with our construction of
Indiana Code § 34-52-1-5, under which Angel Shores—the sole defendant
remaining in the litigation through judgment—was obligated under the statute
to pay the Crays’ reasonable expenses as incurred throughout the litigation,
without a reduction connected to the jury’s comparative fault determination.
Further, the specific amount awarded in litigation expenses was within the
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range of the evidence. We accordingly find no abuse of discretion and affirm
the trial court’s award to the Crays.
Conclusion
[29] The parties’ Agreed Stipulation does not waive appeal of the issue of attorney’s
fees and litigation expenses because the plain language of the waiver applies to
the “trial verdict,” which is a function of the jury, not the trial court, and the
trial court decided the issue of attorney’s fees and damages. Regarding the
issues Angel Shores brought on appeal, we conclude the CWDS, as a mere
amplification of the GWDS, allows the recovery of attorney’s fees and
expenses, and the trial court did not err in its assessment of attorney’s fees and
litigation expenses. Accordingly, we affirm the trial court’s order.
[30] Affirmed.
Najam, J., and Bailey, J., concur.
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