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Indiana Patient's Compensation Fund v. Brown
949 N.E.2d 822
Ind.
2011
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*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), 950 N.E.2d 294 v. P.C. that today, we held also decided DAVID, JJ., concur. and SULLIVAN to seek a permits AWDS also C.J., SHEPARD, separate dissents expenses. As litigation in which opinion in this claim for loss of services case, argument urging no the Fund makes Justice, SHEPARD, dissenting. Chief any treated differ- that such my explained dissent For reasons litigation ex- ently attorney fees and than Ins., Comm’r, I Dep’t v. McCabe penses. wrongly holds this think the issue, this considering separate a ele- attorney fees are case that that correctly noted dam Appeals ment of under Indiana’s ages actions compensatory must be death statutes case, goes beyond the the Court Brown, 176-77; at see 934 N.E.2d nature. surviving that a holding, declaring McCabe v. ex rel. Estate Wade U-Haul Durham of services” may recover for “loss parent (Ind.2001); Int’l, 755, 745 N.E.2d 758-63 would have adult child that the deceased Co., Trucking v. Kuba Ristow Estate of rendered. (Ind.1987). Inc., 2-3 declared, “[Ajttorney rule, a court Brown common law still law, a that there was not probate administration held background damages that rem his compensatory support a child to legal obligation costs Therefore, edy Swenger, losses. v. pecuniary Haskamp actual parent. or her (1926). why 255, 153 these Never compelling we find no reason N.E. 815 Ind.App. theless, Wrongful Death not be allowed.” damages should services, Statute, pecuni loss of might N.E.2d at 177. As to recover that the court observed: where the evidence showed ary losses dependent in fact been matter, parent had may be difficult practical As child for the necessities the deceased prove nondependent parent for a R.R. N.Y. Co. resulted life. Central an child’s services loss of adult (1955). 457, 127 N.E.2d 603 234 Ind. In this very Of permit

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.

Case Details

Case Name: Indiana Patient's Compensation Fund v. Brown
Court Name: Indiana Supreme Court
Date Published: Jun 29, 2011
Citation: 949 N.E.2d 822
Docket Number: 49S02-1106-CT-388
Court Abbreviation: Ind.
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