INDIANA SUPREME COURT HOLDS THAT ATTORNEY FEES ARE NOT RECOVERABLE WHEN THE DECEDENT IS SURVIVED BY A SPOUSE AND/OR DEPENDENTS
On August 27, 2015, the Indiana Supreme Court resolved a matter of first impression with respect to Indiana’s fifty-year-old General Wrongful Death Statute (“GWDS”); specifically, whether attorneys’ fees are recoverable as a form of damages when the decedent is survived by a spouse and/or dependents. In a 5-0 decision authored by Justice Mark Massa, the Court in SCI Propane, LLC v. Frederick, 2015 WL 5076751 (Ind. 2015), held that attorneys’ fees are not recoverable in that circumstance and reversed the decision of the Indiana Court of Appeals. The Court based its decision, in part, on its prior precedents holding that the phrase “including, but not limited to” in the GWDS should be construed narrowly. “ Attorney fees did not qualify as damages, because since the estate ultimately bears the burden of their payment, such fees do not ‘evolve from a deprivation to a survivor.’” Id. at 4, citing Durham ex rel. Estate of Wade v. U-Haul Int., 745 N.E.2d 755, 763 (Ind. 2001). The Court found that, in the absence of survivors, the only “party” arguably damaged as a matter of law is the decedent, and thus the estate itself. Therefore, it was logical that Indiana’s General Assembly would provide extra incentive – in the form of statutory fee awards – to personal representatives prosecuting such actions (where there are no survivors), in order to ensure that those who commit acts resulting in a wrongful death are held liable. Id. at 5. Finally, the Court noted the well-settled law that Indiana follows the “American Rule” under which each party is responsible for paying his or her legal expenses. Id. For additional information on this recent decision, you can find the Court’s complete opinion here: http://www.in.gov/judiciary/opinions/pdf/08271501mm.pdf
PROPOSED INCREASE IN INSURANCE LIMITS
On November 28, 2014, the FMCSA announced that the agency is seeking comment from the public, liability insurance providers, motor carriers, brokers and freight forwarders on the safety and financial impacts of revising minimum levels of financial responsibility. According to the FMCSA, this was prompted by an April 2014 report to Congress that found that the costs of the severe and critical injuries associated with commercial motor vehicle crashes can exceed $1 million and that the current minimums levels of insurance do not adequately cover these costs.
As any change in the mandated levels of insurance can significantly impact motor carriers and truck drivers alike, we wanted to provide you with the information you may need to fully understand the issue. While the comment period is now closed, you can find a copy of the advance notice of proposed rulemaking (“ANPRM”) and additional information on the proposal at https://www.federalregister.gov/articles/2014/11/28/2014-28076/financial-responsibility-for-motor-carriers-freight-forwarders-and-brokers