Nothing is more devastating than the loss of a child, especially when it occurs because of another person’s negligence, or the failure to use reasonable care.
Recently, the Indiana Court of Appeals ruled that Indiana’s Child Wrongful Death Statute, Indiana Code 34-23-2-1, allows for attorney fees and litigation expenses. This was an issue of first impression for the court and important to plaintiffs for two reasons:
- When attorney’s fees are awarded in addition to the damages award, it means more money goes directly to the plaintiffs, as opposed to attorneys receiving a cut of that damages award. Generally, attorneys in wrongful death or personal injury lawsuits are paid on a contingency fee basis, taking no money upfront but instead accepting a pre-determined portion of the damages if and when the plaintiff wins. If a defendant is ordered to pay those fees separate and apart from the plaintiff’s damages award, the plaintiff is able to keep the full damages they were awarded.
- Attorneys who have the opportunity to request attorney’s fees upon the conclusion of a hard-fought case are more likely to pursue that matter in the first place.
In the case before the appellate court, the plaintiffs filed civil lawsuits against two defendants following the death of their 13-year-old son, who was electrocuted and killed while swimming at the home of his friends, who had a lease agreement with the manufactured housing community where the incident occurred.
The plaintiffs filed an Indiana wrongful death lawsuit against the homeowners, as well as the company that owned the community.
A settlement was reached between the plaintiffs and the homeowners following mediation. However, the case against the housing community company proceeded to trial, with the defendant naming the homeowners as non-party defendants in the action.
Prior to the beginning of trial, both parties entered into something called an agreed stipulation. This is a formal legal agreement made between opposing parties at trial, which can stipulate certain facts (which therefore need not be argued at trial) or certain terms, regardless of the trial outcome. While they can stipulate to any matter concerning the rights or obligations of the parties, they can’t stipulate as to the validity or constitutionality of a statute or law, which is something that must be determined by the court.
In this case, both sides stipulated that the plaintiffs would receive a minimum of $200,000 and a maximum of $900,000. The defendant provided a check for $200,000 against whatever the later verdict would be (with the understanding that the most that would be paid regardless of the jury’s findings was $900,000). There was a no clawback provision, meaning that $200,000 would be retained by the plaintiffs even if the jurors found a verdict for them was less than that or even $0. They also agreed the trial verdict would be final, with no appeals or motions for a new trial.
The case went to trial, and the jury found for the plaintiffs with a damages amount of $3 million. However, the defendant’s portion of the damages was only 5 percent, meaning the plaintiff was only awarded $150,000 from the defendant. However, they already had $200,000 from the previous stipulation agreement.
After the trial, the plaintiffs filed a motion for an award of attorney’s fees and litigation expenses. The trial court agreed to award both – $60,000 in attorney’s fees and $73,000 in litigation costs – which were added to the $150,000 verdict for a total of $283,000. The $200,000 the plaintiffs had received already would be factored into this, so they would receive an additional $83,000.
The defendant responded with a motion to correct the error regarding attorney’s fees, which was denied. The defendant then appealed, and the plaintiffs filed a motion to enforce the settlement and dismiss the appeal, arguing the stipulation agreement prohibited the appeal. The appellate court denied the plaintiffs’ motions.
On cross-appeal, the plaintiffs argued the stipulation agreement precluded all of the issues the defendant presented on appeal and thus should be dismissed. The court held that the clause in the stipulation agreement didn’t waive an appeal on the issue of attorney’s fees. However, the court also disagreed with the defendant that the child wrongful death statute did not allow for an award of attorney’s fees. The ruling of the trial court was upheld.
Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Call Toll Free 877-446-5294.
Angel Shores Mobile Home Park Inc. v. Crays, June 20, 2017, Indiana Court of Appeals
More Blog Entries:
Jurors Award $745K in Indiana Medical Malpractice Lawsuit, July 5, 2017, Child Wrongful Death Lawyer Blog