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.

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.