Estate's Attorney's Fees in Wrongful Death Cases
In Hillenbrand v. Supervised Estate of Charlotte Fern Large, 914 N.E.2d 846 (Ind. Ct. App. 2009), Charlotte Fern Large was killed in a motor vehicle accident and a wrongful death action was pursued by the personal representative of Large’s Estate. The attorney for the Estate (“Attorney”) negotiated a settlement awarding Hillenbrand, as Large’s sole surviving child and beneficiary to the wrongful death claim, $47,983.28, with an additional $12,016.72 to be paid to Large’s Estate.
The Attorney then filed a Request for Attorney Fees and Personal Representative Fees with the probate court handling Large’s Estate requesting her attorney’s fees to be paid out of the entire settlement amount that was recovered (amount paid to Hillenbrand plus amount paid to Large’s Estate). Hillenbrand objected and a hearing was held. The probate court held $6,545.50 in attorney’s fees was to be deducted from the wrongful death claim settlement. Hillenbrand appealed the decision, arguing that all settlement amounts remaining after the payment of reasonable medical, hospital, funeral, and burial expenses shall go to the exclusive benefit of Hillenbrand as the nondependent child of Large. The Estate argued that since it is the personal representative of the Estate that is entitled to pursue the wrongful death claim, the Attorney must be paid from the settlement amount from the wrongful death claim. Consequently the singular issue on appeal was “whether the Estate [could] charge the attorney fees incurred in the pursuit of the wrongful death claim against the settlement funds instead of being paid from the probate estate.”
On appeal, the Indiana Court of Appeals (“ICOA”) upheld the probate court’s decision. The ICOA held, in accordance with and following its interpretation of Indiana Code section 34-23-1, that the damages awarded in a wrongful death claim include reasonable attorneys fees incurred to pursue the claim. So the attorney’s fees are to be paid by the Estate and taken out of the entire amount recovered from the wrongful death claim. The remainder of which goes to the nondependent adult or nondependent child pursuant to Indiana Code section 34-23-1-2(d).
