Indiana Injury Lawyer Blog

The Court of Appeals of Indiana recently decided in the case of Hillebrand v. Large, 914 N.E.2d 846 (Ind. Ct. App.) that "the damages awarded in a wrongful death action may include the reasonable attorney fees necessary to pursue the action, and these damages inure to the exclusive benefit of the estate for the payment of such costs. The remainder of the damages inure to the exclusive benefit of a nondependent parent or nondependent child of the decedent in accordance with I.C. § 34-23-1-2(d)."

The representative of the estate was confused whether the Indiana Wrongful Death statute allowed for the deduction of attorney fees incurred for the recovery of wrongful death proceeds,from the settlement or from the estate itself. While there appeared to be enough funds in the estate from which to pay the attorney fees, the sole beneficiary to the wrongful death case did not wish to have the attorney fees deducted from his settlement funds. In this opinion, the court made it clear that the statute for wrongful death had been written broad enough to encompass the legislative intent to paying all costs related to a wrongful death claim, including attorney fees.

In Pfenning v. Lineman et al., 2010 Ind. App. LEXIS 164, the Court of Appeals of Indiana, expanded the doctrine of no duty from one participant in a sporting event to another to include not just the players, coaches and those sitting on the bench to also include volunteers at the sporting event.

16 year old Cassie Pfenning was asked by her grandfather, Jerry Jones, to accompanying him to a golf tournament at which Mr. Jones had volunteered to drive a beverage cart. Mr. Jones ended up playing in the tournament so he left Cassie with his sister. His sister too decided to play in the tournament so she was left in the care of yet another person, Christie Edwards. Cassie drove the cart while Ms. Edwards severed beer to the golfers. While Cassie was on the 18th hole cart path, she was hit by an golf ball which was the result of an errant drive from the 17th tee. As a consequence, Cassie sustained serious personal injuries.

Cassie's mother sought to recover on behalf of Cassie, under a number of different theories, against the golf course, the tournament sponsor and her grandfather. The trial court granted summary judgment as to all defendants. On appeal, the Court of Appeals of Indiana affirmed the trial court. In doing so, the Court of Appeals of Indiana wrote: "Although not a player herself, she clearly was 'part of the sporting event. . . involved,' and we hereby expand the language in Geiersbach to include sporting event volunteers such as Pfenning. Geiersbach 807 N.E.2d at 120.

The Federal Register published on December 14, 2009 a change to the Endocrine Listing (Listing 9) proposed by the Social Security Administration (SSA). SSA proposed that the impairments set out in Listing 9 be eliminated. Listing 9 includes not only thyroid disorders but also diabetes. The elimination proposal by SSA is based upon what SSA considers to be "advances in medical treatment in the detection" of endocrine disorders. As a consequence of these advances SSA believes that these types of disorders no longer meet the 12 month durational requirement.

SSA has also indicated that it has been advised by medical experts that the current listing regarding diabetes reflects "only inadequate glucose regulation." SSA has been told by these experts that adequate glucose regulation is achievable with improved treatment options. If SSA ultimately decides to change the regulation as proposed, then severe impairments such as diabetes and thyroid disorders will no longer serve as a basis to obtain Social Security Disability benefits on on their own. If endocrine disorders cause problems of listing-level severity in other organs or glands, SSA will "evaluate these effects under other body system listings."

Importantly, current beneficiaries who have received an award of Social Security disability benefits based upon endocrine disorders will not be terminated. They will, however, continue to be evaluated for medical improvement by continuing disability reviews but under the original listing upon which their initial entitlement was based.

Under Indiana's Child Wrongful Death Act (I.C. 34-23-2-1) a parent may recover for the loss of child killed by the negligence of another. There is no cap under the Child Wrongful Death Act. There is however, a cap under the Adult Wrongful Death Act (I.C. 34-23-1-2) for love and companionship at $300,000. Because of this cap, the question of when a "child" is a "child" for wrongful death purposes becomes important.

The Child Wrongful Death Act defines a child as an unmarried individual without dependents who is either less than 20 years of age or less than 23 years of age and is enrolled in a post secondary educational institution or a career and technical education school or program that is not a post secondary educational program.In the case of Howard v. E&B Paving, Inc., et al 2010 Ind. App. LEXIS 55, the Court of Appeals of Indiana decided what was meant in the statute by "enrolled in a post secondary educational institution".

Amber Howard was over 20 but under 23 years of age when she died from injuries which she received an automobile crash on November 13, 2002. Amber's parent's filed a wrongful death claim under the Child Wrongful Death Act. The issue was whether Amber a "child" under the Child Wrongful Death Act.

Amber had taken classes at Ivy Tech in the summer and fall of 2000. She took time off in the spring of 2001. Amber re-enrolled during the fall semester of 2001 and continued through the spring semester of 2002. Amber did not enroll or register for classes in the summer of 2002 or during the fall of 2002. She did not register for any classes for the spring of 2003. About one month after registration began for the spring 2003 semester at Ivy Tech, Amber died. Amber's parents indicated that Amber had intended to register for classes for the spring of 2003. Because Amber had not registered as a student for classes at Ivy Tech before she died she was not considered to be a "child" within the meaning of the Act. The Court held that the mere intention to enroll was not sufficient.