McCabe v. Commissioner, Indiana Department of Insurance
2011 Ind. LEXIS 568
| Ind. | 2011Background
- McCabe, as personal representative, sues for additional damages from the Indiana Patient's Compensation Fund after his mother's death from medical malpractice.
- AWDS allows damages for an adult, unmarried, with no dependents, including loss of love and companionship, but does not explicitly list attorney fees.
- Trial court granted partial summary judgment: AWDS does not allow attorney fees and GWDS and AWDS are disjunctive remedies.
- Court of Appeals affirmed the partial summary judgment restricting attorney fees to GWDS, not AWDS.
- Indiana Supreme Court granted transfer to resolve whether attorney fees are recoverable under AWDS, given open-ended language.
- Court holds that reasonable attorney fees are recoverable under AWDS and reverses the trial court’s summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AWDS permits attorney fees | McCabe: AWDS allows damages beyond explicit items; fees are recoverable. | FUND: AWDS lacks explicit or implied fee recovery and is narrower than GWDS. | Yes; attorney fees are recoverable under AWDS. |
| Effect of 'may include but are not limited to' in AWDS | Open-ended phrase permits additional damages, including fees. | Open-ended language should not expand to include fees contrary to intent. | Open-ended phrase includes attorney fees under AWDS. |
| Harmonization of AWDS with GWDS | Read AWDS in pari materia with GWDS to allow fees. | Treat AWDS separately; interpret limitations and intent strictly. | Harmonized reading supports including attorney fees under AWDS. |
Key Cases Cited
- Butler v. Ind. Dep't of Ins., 904 N.E.2d 198 (Ind.2009) (open-ended 'may include but are not limited to' interpreted for medical expenses)
- Kuba v. Ristow Trucking Co., Inc., 508 N.E.2d 1 (Ind.1987) (statutory non-exhaustive list limits expansion of damages)
- Durham ex rel. Estate of Wade v. U-Haul Int'l,, 745 N.E.2d 755 (Ind.2001) (punitive damages not recoverable under GWDS; open-ended phrases constrained)
- Estate of Miller v. City of Hammond, 691 N.E.2d 1310 (Ind.Ct.App.1998) (context for AWDS structure relative to CWDS)