                                                                                       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.




Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017                      Page 1 of 23
[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.

      Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017                        Page 2 of 23
[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

      Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017   Page 3 of 23
              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

      Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017              Page 4 of 23
      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.

      Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017                                 Page 5 of 23
      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




      Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017    Page 6 of 23
      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.




      Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017    Page 7 of 23
                          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.

      Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017          Page 8 of 23
                                                      *****


               (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

       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017    Page 9 of 23
               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




       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017   Page 10 of 23
       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

       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017                       Page 11 of 23
[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.

       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017                            Page 12 of 23
               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

       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017    Page 13 of 23
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).

Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017                            Page 14 of 23
       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.”




       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017   Page 15 of 23
       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).

       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017                     Page 16 of 23
       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

       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017   Page 17 of 23
       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)
       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017   Page 18 of 23
       (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.

       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017                       Page 19 of 23
       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


       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017   Page 20 of 23
       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


       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017   Page 21 of 23
       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



       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017      Page 22 of 23
       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.




       Court of Appeals of Indiana | Opinion 79A02-1605-CT-1106 | June 20, 2017   Page 23 of 23
