The recovery of attorney’s fees in wrongful death actions has been a long-litigated issue, and it appears that the Indiana Supreme Court has issued the final word (for now).
Indiana’s first wrongful death law was passed in 1852. It was amended several times, including in 1965, when it was amended substantially to its present form. The General Wrongful Death Statute (GWDS) includes two general categories of decedents. The first category includes all decedents. The Second category includes only those decedents who leave no widow or widower, or dependent children or next of kin. The Indiana General Assembly has also enacted two additional wrongful death provisions – the Adult Wrongful Death Statute (AWDS) and the Child Wrongful Death Statute (CWDS) – both of which, as necessary prerequisites of recovery, require the decedent to be unmarried and have no dependents.
The CWDS expressly allows for the award of attorney’s fees. The AWDS does not, instead stating that damages “may include but are not limited to” a delineated list of expenses and loss of love and companionship. However, in 2011, the Indiana Supreme Court held that the phrase “may include but are not limited to” is ambiguous, and referring to various statutory interpretation doctrines, held that the statute allowed for the recovery of attorney’s fees.
The first category in the GWDS – all decedents – also allows for recovery of damages “including, but not limited to,” a delineated list of expenses and damages. However, again applying statutory interpretation doctrines, the Indiana Supreme Court in 2015 held the “including, but not limited to,” language does not allow the recovery of attorney’s fees for the first category of GWDS decedents, thus coming to the opposite conclusion as it did in 2011.
The takeaways here are twofold. First, some categories of wrongful death survivors can recover attorney’s fees while others cannot; attorneys experienced in handling wrongful death cases will know the rules. Second, virtually the same language can be interpreted to have opposite meaning based upon the context of the statute and the purpose for which it was enacted.