*1 AWDS, the take form of governing frivolous the boundaries quest based on statute CWDS, the or de- statutory damages; claim litigation requires caps “primarily (i.e., fense was undertaken temporal boundaries are harassment”). purpose of only until would have reached the child student). twenty twenty-three, or if a ac- In present must, that it knowledges, as plausible It seems that in ex- altogether “at- not included the term Assembly has recovery tending possibility provision at is- fees” the Code before, little chance or none existed sue, though legislature did so even (indeed the words legislature would enact- contemporane- and almost settings similar did) make ed that it discreet demonstrate alone ously. difference would cus- This decisions various elements recov- about thought legisla- indicative of tomarily be limits on ery, recovery, measures of tive intent. availability of fees. ages, par- and the majority says legisla- ticular, But the that it unsurprising would seems provision ture enacted a on fees has in more authorize fees for the limit- fact Wrongful Death It Statute. ed authorized CWDS and de- but are limited to” “may is the include cide not to do so for AWDS. Whether or things those phrase that introduces intent, legislative not this our describes may be recompense which obtained. long-standing rule about strict construc- derogation tion statutes the com- straight That assertion leads to a second away mon law would the deci- commonly applied rule construction today. sion announced generally in a field cov statutes enacted law. ered common As Justice us, a “in has reminded
Dickson
derogation strictly of common law must be County v. Brown ex rel.
construed.” Giles Comm’rs,
its Bd. of
(Ind.2007) (Dickson, J., dissenting). Stat authorizing
utes
death, undeniably deroga law.
tion of the common interpretation bedrock This INDIANA PATIENT’S COMPEN- interpreting valuable to especially FUND, Appellant SATION have before us. statutes we Both (Defendant below), Death and the Wrongful Statute Wrongful Death Statute were enact- Child ed for the benefit of claimants whose re- Beverly BROWN, S. as Executor the common law would have covery under Frieden, deceased, Estate of Barbara J. non-existent, been or whose un- Appellee Wrongful der the General Death Statute No. 49S02-1106-CT-388. opera- minimal due to the would have been tion economic In ex- of rules about of Indiana. Supreme remedy where little recov- tending a or no 29, 2011. before, ery likely have occurred boundaries legislature placed around that could be recovered.
amounts
Attorneys for Amicus Trial Curiae Indiana Lawyers Association.
DICKSON, Justice. Compensation Indiana Patient’s challenges a final Fund $278,377.55 against sum of it on grounds ex- judgment includes sums for penses attor- services that not recoverable Indiana Adult (“AWDS”), Wrongful Death Statute § Code 34-23-1-2. The Court of Appeals rejected the Fund’s arguments and firmed the trial court. Ind. Patient’s Comp. Fund N.E.2d and, (Ind.Ct.App.2010). grant We transfer agreeing with the Court of Appeals and court, the trial now hold that such dam- ages may sought under the AWDS. Following the settlement plain- malpractice tiffs against medical claims providers several care medical for the al- leged death of sis- ter, Frieden, J. Barbara an unmarried dependents, adult without ini- against tiated action the Patient’s Compensation Fund for the damages that $250,000 future her exceeded value of settlement the medical providers, pursuant the Indiana Malprac- Medical tice Act. The Fund dispute did sought only individual amounts but availability damages under the AWDS for contingent Conner, McKinney Matthew W. & Bose expenses, estate administration Evans, LLP, IN, Indianapolis, Attorney requested loss of services. The Fund also Appellant. $250,000 application of the set-off reflect- Mellowitz, PC, A. James Mellowitz & ing the value of the settlement Hanefeld, IN, Indianapolis, Attorney for care providers. with the health The trial Appellee. re- rejected Fund’s contentions Baker, scope Robert W. F. garding permitted Nicholas IN, Firm, Hastings Indianapolis, Law AWDS and awarded plain- that Frieden’s has not contested applied Fund but requested amount tiff the full challenges parents suffered appeal Fund’s the set-off. has but instead loss of her ruling court’s
only the trial *3 categori- expenses damages are could include that such argued under the AWDS fees, the AWDS. We under cally unavailable of argu- when The Fund’s Loss of agree. of services. cannot and loss damages of a pecuniary these classes constitute ment treats all of proved, any particu- contemplated not make type and does of the together the recovera- challenging argument larized AWDS. dam- item of the awarded
bility
any
of
one
cor-
Appeals
of
is
at 178. The Court
Id.
ages.
rect.
today in McCabe v.
This Court’s decision
We affirm the
granted.
Transfer
Ins.,
Comm’r,
N.E.2d 816
Dep’t
Ind.
of
awarding
of the trial
at-
(Ind.2011),
that a
determined
administration, attor-
expenses
for
of
ages
under
may
fees
be recoverable
of services under
Ind.,
Hematology-Oncology
AWDS. In
Wrongful Death Statute.
Adult
Fruits,
(Ind.2011),
Wrongful Death Statute was to
some survivors pur- had This central dependents.
who no why
pose explains the enumerated ele- solely
ments of focus on medical
and burial and on loss of love and expenses
affection. declares that it covers
death “who unmarried individual any dependents.”
does not have Ind.Code
34-23-l-2(a). Holding that the by
fords “loss of services” contrary
dependents language Code, oxymo- a broader sense mean,
ronic. This does cannot recover child;
loss of an mean that does loss of services is
crucial element claim the claimant proceed
should under the General J.,
RUCKER, concurs.
Steven and Lauren SIWINSKI
Siwinski, Appellants
(Defendants below), DUNES, Appellee
TOWN OF OGDEN
No. 64S03-1010-CV-599.
Supreme Court of Indiana. 2011.
