Indiana Injury Lawyer Blog

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.”

Continue reading "Estate's Attorney's Fees in Wrongful Death Cases " »

In a recent not for publication memorandum decision* by the Indiana Court of Appeals, the court reversed the granting of a motion for summary judgment in favor of the Indiana Department of Transportation ("INDOT"), finding that INDOT owed a duty of care to a father and son who were subcontracted to complete some paving work for INDOT. Lorraine Bunn, as Personal Representative of the Estate of Robert P. Bunn, Deceased, and Robert L. Bunn vs. Indiana Department of Transportation, No. 50A03-0810-CV-504 (Indiana Ct. App. 2009).

While completing the work, the son was electorcuted after a dump truck made contact with overhanging power lines. The father was in close proximity, watching as it happened.

Continue reading "INDIANA DEPARTMENT OF TRANSPORTATION CHARGED WITH DUTY FOLLOWING THE ELECTROCUTION OF INDOT SUBCONTRACTOR" »

After a patient’s death, her estate in Butler v. Indiana Dept. of Ins. sought excess damages from the Indiana Patient’s Compensation Fund.  The Indiana Supreme Court held that, with respect to damages under Ind. Code § 34-23-1-2(c)(3)(A), the amount recoverable by the plaintiff in a wrongful death case for the “reasonable medical expenses” necessitated by the wrongful act is the portion of the billed charges ultimately accepted pursuant contractual adjustments, not the initial amount billed.  The court reached its decision after analyzing the specific language contained in Ind. Code § 34-23-1-2, (the Adult Wrongful Death Statute).  Butler v. Indiana Dept. of Ins., 904 N.E.2d 198 (Ind. 2009). 

In Ramirez v. Wilson, a semi-tractor collided head-on with a pregnant woman’s car.  She was killed, and her daughter S.R. died in utero.  S.R.’s father filed a complaint for the wrongful death of the unborn child.  The Court found that although S.R. was a viable, full-term fetus, under Indiana precedent, a fetus is not a child for purposes of the wrongful death statute and the driver was appropriately entitled to judgment as a matter of law on S.R.’s father’s claim for the unborn child’s wrongful death.  Ramirez v. Wilson, 901 N.E.2d 1 (Ind. App. 2009).

In Newkirk v. Bethlehem Woods Nursing and Rehab. Center, LLC., the Indiana Supreme Court held that a wrongful death claim for an adult by a personal representative based on medical malpractice, which is subject to Indiana's Professional Services Statute ("PSS"), must comply with PSS's statute of limitations and be brought within (2) two years of the malpractice, not within (2) two years of the person's death.

In Newkirk, a woman was recovering from surgery at Bethlehem Woods Nursing and Rehab Center. As a result of Bethlehem's medical negligence, the woman died while at their facility. Her estate brought a action for wrongful death within two years of her death, but more than two years after the medical negligence occurred. Bethlehem filed a motion for summary judgment arguing that her estate was barred from bringing the claim as they had not brought it within two years of the alleged malpractice. The trial court agreed and granted the motion.

On appeal, the Indiana Court of Appeals reversed argreeing with the trial court that the estate's claim arose under the PSS, but finding that the claim was timely filed under the Wrongful Death Act. The Indiana Supreme Court vacated the Indiana Court of Appeals decision and affirmed the trial court's grant of summary judgment for the defendant.

See Newkirk v. Bethlehem Woods Nursing and Rehab. Center, LLC, 898 N.E.2d 299 (Ind. 2008).