                                                                Sep 15 2015, 8:52 am




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Michael T. Terwilliger                                     Frederick W. Crow
Whitten Law Office                                         Young & Young
Valparaiso, Indiana                                        Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Hoker Trucking, LLC and Linda                              September 15, 2015
L. Phillips,                                               Court of Appeals Case No.
                                                           89A01-1411-CT-468
Appellants-Defendants,
                                                           Appeal from the Wayne Superior
        v.                                                 Court
                                                           The Honorable Charles K. Todd, Jr.,
                                                           Judge
Pamela K. Robbins, as
Administratrix of the Estate of                            Cause No. 89D01-1212-CT-56
Mike Douglas Robbins,
Deceased,
Appellee-Plaintiff.




Riley, Judge.




Court of Appeals of Indiana | Opinion 89A01-1411-CT-468 | September 15, 2015             Page 1 of 7
                                    STATEMENT OF THE CASE

[1]   Appellants-Defendants, Hoker Trucking, LLC, and Linda L. Phillips

      (collectively, Hoker Trucking), appeal the trial court’s order granting attorneys’

      fees and prejudgment interest to Appellee-Plaintiff, Pamela K. Robbins, as

      administratrix of the estate of Mike Douglas Robbins, deceased (Robbins).


[2]   We reverse.


                                                     ISSUES

[3]   Hoker Trucking raises four issues on appeal, one of which we find dispositive

      and which we restate as follows: Whether Robbins, as the surviving spouse of

      the decedent, is entitled to attorneys’ fees under the General Wrongful Death

      Statute.


                            FACTS AND PROCEDURAL HISTORY

[4]   The relevant facts are undisputed. On January 4, 2011, Mike Douglas Robbins

      (Mike) was involved in a motor vehicle accident with a tractor-trailer, operated

      by Linda Phillips, an employee of Hoker Trucking, in Richmond, Wayne

      County, Indiana. Mike died as a result of the injuries suffered in the accident.

      On December 21, 2012, Robbins, Mike’s surviving spouse, filed a wrongful

      death action against Hoker Trucking in her capacity as administratrix of Mike’s

      estate. Hoker Trucking admitted liability and the case proceeded to trial on the

      issue of damages only. On October 6, 2014, the jury returned a verdict in favor




      Court of Appeals of Indiana | Opinion 89A01-1411-CT-468 | September 15, 2015   Page 2 of 7
      of Robbins, awarding the estate a damage award in the amount of

      $6,000,000.00.


[5]   On January 9, 2015, the trial court conducted a hearing on Robbins’ request for

      attorneys’ fees and prejudgment interest as compensable damages under the

      Indiana General Wrongful Death Statute. Both parties presented evidence and

      testimony during the hearing. On January 20, 2015, the trial court issued its

      order, awarding Robbins attorneys’ fees of $2,400,000.00 and prejudgment

      interest in the amount of $622,028.11.


[6]   Hoker Trucking now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[7]   Whether an award of attorneys’ fees can be sought under the Indiana General

      Wrongful Death Statute, Ind. Code § 34-23-1-1 (2014) (GWDS), was an issue

      of first impression until our supreme court issued its decision in SCI Propane,

      concluding that attorneys’ fees are not recoverable as a type of compensatory

      damages if the decedent is survived by a spouse and/or dependents. SCI

      Propane, LLC, et al. v. Frederick, --- N.E.3d ---- (Ind. Aug. 27, 2015).


[8]   Not exactly an exercise in clarity, the GWDS states, in its entirety:

              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 omissions. 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

      Court of Appeals of Indiana | Opinion 89A01-1411-CT-468 | September 15, 2015         Page 3 of 7
              (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 departs this life leaving no such widow
              or widower, or dependent children or dependent next of kin, surviving
              her of 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 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.
      I.C. § 34-23-1-1.


[9]   As such, the GWDS delineates two categories of decedents. The first category

      includes all decedents generally, 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.” I.C. § 34-23-1-1. The second category includes

      Court of Appeals of Indiana | Opinion 89A01-1411-CT-468 | September 15, 2015     Page 4 of 7
       only those decedents who “depart this life leaving no such widow or widower,

       or dependent children or dependent next of kin, surviving him or her.” I.C. §

       34-23-1-1. In such instances, the estate is expressly entitled to recover

       reasonable attorneys’ fees in “prosecuting or compromising the action.” I.C. §

       34-23-1-1.


[10]   In combination with the GWDS, our General Assembly has also enacted two

       additional wrongful death provisions: the Adult Wrongful Death Statute, I.C. §

       34-23-1-2 (AWDS), and the Child Wrongful Death Statute, I.C. § 34-23-2-1

       (CWDS). Both statutes stipulate that, as a necessary prerequisite for recovery,

       the decedent must be unmarried and have no dependents. While the CWDS

       expressly allows for the award of attorneys’ fees, the AWDS does not.

       However, in McCabe v. Commissioner, Indiana Department of Insurance, 949

       N.E.2d 816, 819-21 (Ind. 2011), we held attorneys’ fees to be included in the

       phrase “may include but are not limited to” and thus recoverable under the

       AWDS. See I.C. § 34-23-1-2(c)(3).


[11]   Even though similar language—“may include but are not limited to”—is

       included in the first category of the GWDS, our supreme court reached the

       opposite conclusion in SCI Propane based on the distinct application and

       remedies afforded to the first category of decedents under the GWDS, i.e., those

       survived by a spouse/and or dependents. See SCI Propane, --- N.E.3d ---, at *7.

       Finding the phrase ambiguous, the supreme court relied on Estate of Kuba by

       Kuba v. Ristow Trucking Co., 508 N.E.2d 1, 2 (Ind. 1987), and Durham ex. rel.

       Estate of Wade v. U-Haul International, 745 N.E.2d 755, 763 (Ind. 2001), to

       Court of Appeals of Indiana | Opinion 89A01-1411-CT-468 | September 15, 2015   Page 5 of 7
construe the language narrowly. See SCI Propane, --- N.E.3d ---, at *7. As such,

the court concluded:

        A wrongful death action is pursued by the personal representative of
        the decedent’s estate. As such, the estate is responsible for all legal
        expenses in pursuing a wrongful death claim. In wrongful death suits
        falling within the first GWDS category, however, the damages must be
        either: (1) a “reasonable medical, hospital, funeral and burial
        expense” or (2) “inure to the exclusive benefit” of the surviving spouse
        or dependent. Attorneys’ fees thus do not qualify as damages, because
        since the estate ultimately bears the burden for their payment, such fees
        do not “evolve from a deprivation to a survivor.” Although the
        payment of fees may deplete the estate and reduce the amount of a
        surviving spouse and/or [a] dependent’s inheritance, such depletion is
        not of the same genre as those damages enumerated in the statute,
        such as lost earnings.
Id. at *8 (emphasis in original) (internal citations and footnotes omitted). The

court reasoned that:

        This outcome is neither absurd nor contrary to public policy. The
        existence of a surviving spouse or dependent of a decedent creates a
        significant incentive for the personal representative of the estate to
        pursue a wrongful death claim for the benefit of the survivors, who
        were perhaps financially dependent upon the decedent and could face
        significant hardship without his or her income. In the absence of such
        survivors, however, the only party arguably damaged as a matter of
        law is the decedent, and thus the estate itself. It is therefore logical
        that our General Assembly would provide extra incentive—in the form
        of statutory fee awards—to personal representatives prosecuting such
        actions, in order to ensure that those who commit acts resulting in a
        wrongful death are held liable, which further encourages such actors to
        avoid that wrongful conduct in the future.
Id. at *9 (internal footnotes omitted).




Court of Appeals of Indiana | Opinion 89A01-1411-CT-468 | September 15, 2015    Page 6 of 7
[12]   Accordingly, where, as here, Robbins, as the surviving widow, 1 pursues the

       recovery of attorneys’ fees as compensatory damages under the first category of

       the GWDS, she is not entitled to an award thereof. We reverse the trial court’s

       award of $2,400,000.00 in attorneys’ fees and prejudgment interest in the

       amount of $622,028.11. See id. at *10.


                                                  CONCLUSION

[13]   Based on the foregoing, we conclude that Robbins, as the surviving spouse, is

       not entitled to recover attorneys’ fees and prejudgment interest as compensable

       damages under the GWDS.


[14]   Reversed.


[15]   Bailey, J. and Barnes, J. concur




       1
        It is not controlling that Robbins is both administratrix of the estate and the decedent’s widow; acting in
       both capacities does not convert the legal expenses she paid as administratrix into damages she personally
       suffered. See SCI Propane, --- N.E.3d at *8, n.6.

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