In a trilogy of decisions announced June 29, 2011, the Indiana Supreme Court clarified and harmonized Indiana’s three laws that allow recovery for the wrongful death of a person, holding that a successful plaintiff can recover attorney fees incurred in the administration of the decedent’s estate and in the prosecution of a wrongful death action, regardless of which of the three statutes is involved.

Wrongful death actions did not exist at common law. Every state has now enacted a statute that allows recovery for the death of a person caused by the wrongful act of someone else. Indiana has three such statutes. The General Wrongful Death Act provides that the personal representative of a deceased person may file a lawsuit to recover damages, including but not limited to “reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person,” as well as for recovery of attorney fees and expenses for administering the estate and prosecuting the lawsuit. Judicial decisions have interpreted this language to also allow a surviving spouse and/or dependent next of kin to recover “intangible” damages, such as the value of lost care, love, affection, and training and guidance of the decedent’s children.

Indiana also has a Child Wrongful Death Statute, which permits recovery for the wrongful death of a “child.” A “child” is defined as an unmarried individual without dependents who is less than 20 years of age, or less than 23 years of age if enrolled in school. The definition of “child” also includes a viable fetus, but does not include a legal abortion as a cause of “wrongful death.” The statute allows recovery by parents or the guardian for the value of the loss of the child’s services, love and companionship to the age of 20 (or 23, in the case of a child enrolled in school), as well as recovery of medical, hospital, funeral and burial expenses, and it also provides for recovery of attorney fees and expenses for administering the child’s estate and prosecuting the lawsuit.

Finally, Indiana has an Adult Wrongful Death Statute, which authorizes a wrongful death action specifically for the death of an adult person who is unmarried and without any dependents. It expressly permits recovery for specified damages including but not limited to “loss of the adult person’s love and companionship” but does not explicitly enumerate attorney fees and costs of administration of the estate and prosecution of the wrongful death action as elements of recoverable damages. In the three cases decided on the same day, the Supreme Court determined that the Adult Wrongful Death Statute, despite the lack of a provision explicitly authorizing recovery of attorney fees for administering the estate and prosecuting the lawsuit, does, in fact, allow for such a recovery. The Court reasoned that the phrase “including but not limited to” required that the Adult Wrongful Death Statute be construed harmoniously with the other two wrongful death statutes to allow recovery of the costs of administration of the deceased adult’s estate and prosecution of the wrongful death lawsuit, including the attorney fees associated with those services.

In summary, it is now clear in Indiana that, regardless of whether the decedent was an adult with or without dependents, or a child, a wrongful death action allows for the recovery of all of the costs of administering the decedent’s estate, as well as the prosecution of a lawsuit based on the wrongful death of the decedent, including attorney fees.
If you have had the unfortunate experience of the death of a loved one as a result of the fault of someone else, the personal injury attorneys at Burke Costanza & Carberry LLP can advise you on your rights and the possibility of a recovery. They know Indiana wrongful death laws inside and out. For more information contact Bob Parker or Natalie Shrader.

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