Wrongful Death Laws: In Fatal Accidents, Who Should Pay for the Family’s Legal Fees?


Wrongful Death Laws: In Fatal Accidents, Who Should Pay for the Family’s Legal Fees?

Accidents happen every day here in Indiana and Illinois, both at home and at work to victims of all ages. There are car crashes; semi-truck accidents; sporting accidents where kids suffer concussions or brain injuries; pedestrians who are hit by vehicles; doctors making life-altering mistakes; and workers who fall from heights or are burned with chemicals or jolted with electricity.

People are seriously injured in all sorts of ways and afterward, justice demands that those responsible for those injuries take responsibility for what has happened.

That is the reason for all the personal injury laws on the books here in Illinois and Indiana — and helping victims seek recompense based upon those laws is the reason we come to work here each day. Being able to assist victims of serious accidents is more than a job to us, it’s a passion and a calling.

Which brings us to the most serious of accident injuries: when the accident victim is hurt so severely that they cannot recover from the bodily harm that has been done to them. People can, and do, die from the injuries that they suffer in an accident. These incidents can be so heartbreaking — especially when the victim is very young, or when it’s obvious that the accident could have easily been prevented.

And the tragedy doesn’t impact just that accident victim: wives, husbands, sons, and daughters are also victims in these wrongful death accident cases.

Wrongful Death Statutes in Indiana and Illinois

The state legislatures in both Indiana and Illinois have passed special statutes that control how accident victims who perish as a result of their injuries are to find justice. These claims will be filed by representatives of the deceased person, and financial awards are made to specific individuals (relatives) according to the statutory language.

These statutes are called the “wrongful death laws” of Indiana and Illinois.

We’ve written about these wrongful death laws before. They provide a structure in how these claims are to be filed and pursued, and that structure is not the same for the two states. A wrongful death claim in Indiana may well result in a different award than a claim made in Illinois even if the two accidents are almost identical (e.g., a job-site electrocution or a fatal car crash).

Grieving families may find this to be unfair, but that is how the system operates today. And that may not be the only unfairness that the fatal accident victim’s family must face.

Senate Bill 124 Presented to the 2016 Indiana General Assembly

This year, a proposal was made to the Indiana legislature to make changes to the Indiana Wrongful Death laws which would make these wrongful death claims more just for the accident victim and his family who is pursuing justice on his behalf.

Written by Indiana State Senator Lonnie Randolph, the proposed law would change things so that as of July 2016, if a decedent dies in an accident leaving a spouse (widow/widower) or dependent child, then things would be different. Under this new law, when this wrongful death action is filed, the attorneys’ fees incurred for investigating, filing, and litigating that wrongful death case would be paid by those responsible for the accident.

Of course, the business community and those who are likely to be sued for damages in accidents where there is a wrongful death scoffed at this proposal. The criticism? It’s motivated as a means for the victim’s lawyers to make more money.

The proposal is not law in Indiana. Senate Bill 124 was last reported in committee but has not been voted upon or signed into law.

Current Indiana Wrongful Death Laws

Today, the victims’ families who pursue a wrongful death action in Indiana are able to have the defendant cover the legal expenses incurred in pursuing justice after the fatal accident if the victim was a minor child. The victim’s estate can also be awarded legal expenses when the victim was an adult who had no dependents.

Senator Randolph’s proposed Senate Bill 124 would simply extend that right to those victims who passed away as the result of an accident in Indiana when they left behind a family member (wife, husband, children).

What’s going on here? Indiana has three different wrongful death laws, not one big one. They are:

  1. the General Wrongful Death Statute (GWDS) found in Indiana Code section 34-23-1-1 ;
  2. the Adult Wrongful Death Statute (AWDS) found in Indiana Code section 34-23-1-2; and
  3. the Child Wrongful Death Statute (CWDS) found in Indiana Code section 34-23-2-1.

The latter two have language that states the defendant who caused the fatal accident can be made to pay the legal fees incurred in order to make that defendant take responsibility for the accident. The first one does not.

That’s been decided by the Indiana Supreme Court in the case of SCI PROPANE, LLC v. Frederick, 39 N.E.3d 675 (Ind. 2015), where the high court ruled that the statute’s language does not allow this attorneys’ fees award.

There, the court explains that the statute doesn’t provide for them and that Indiana adheres to the “American Rule,” under which each party is responsible for paying his or her legal expenses absent contrary statutory authority. So, if the statute doesn’t allow for recovery of attorneys’ fees, the defendant doesn’t have to pay them.

Unfairness in Wrongful Death Law

The point: if Senate Bill 124 became the law of the State of Indiana, it would not be greedy plaintiffs’ lawyers looking to make money. It would align all the wrongful death statutes and bring fairness to what is now an unfair situation.

Because what happens now in these cases is that the victim’s family must cover the legal expenses out of their damage award resulting from the wrongful death action. They have to pay for the costs of bringing the wrongful death case to get justice for the accident, instead of the parties who caused the accident and the wrongful death. It’s even more unjust when you consider that these laws, specifically the AWDS, also places a cap on the amount that can be awarded in an Indiana wrongful death case.

Wrongful death claims are the most serious of accident lawsuits. Surely Indiana’s widows and minor children deserve better protection than this.

Be careful out there!

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