MATHIAS, J.
Appellant-Petitioner, Jeffery H. McCabe, as Representative of the Estate of Jean Francis McCabe, decedent (“McCabe”), appeals the trial court’s grant of partial summary judgment in favor of Commissioner, Indiana Department of Insurance as Administrator of the Indiana Patient’s Compensation Fund (“the Fund”), in which the trial court found that attorney fees and expenses incurred by the attorney representing the personal representative of a wrongful death estate are not recoverable damages under Indiana’s Adult Wrongful Death Statute (“AWDS”).
We affirm.
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The issue before us is one of first impression. Indiana has three separate causes of action for the wrongful death of an individual, a general wrongful death statute (“GWDS”), a statute pertaining to the wrongful death of children (“CWDS”) and the AWDS, a statute pertaining to the wrongful death of adults. The important difference among them for the purposes of this appeal is that, although the GWDS and the CWDS specifically provide for reasonable attorney fees, the AWDS is silent on the matter. McCabe now requests this court to construe the AWDS by way of statutory interpretation as to provide for the inclusion of reasonable attorney fees.
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Recently, in Butler v. Indiana Department of Insurance, our supreme court considered the subsection (c)(3) language of the AWDS,2 stating that damages “may include but are not limited to the following” and concluded:
This open-ended phrase permits recovery of damages other than those items designated in subsections (c)(3)(A) and (c)(3)(B), but does not direct the expansion of the circumscribed damages defined within (A) and (B). The “include but not limited to” phrase does not expand the class of such necessitated expenses.
904 N.E.2d at 202-03.
McCabe correctly notes that the Butler Court observed that the phrase “may include but not limited to” allows for the recovery of damages not specifically enumerated in the AWDS. Further, we acknowledge McCabe’s argument that the General Assembly could have explicitly precluded the recovery of reasonable attorney fees in subsection (c)(2) of the AWDS which specifically enumerates certain damages which are excluded from recovery.
However, the Butler Court limited its holding allowing for recovery of damages not specifically provided for in the AWDS when it stated that the phrase at issue “does not direct the expansion of the circumscribed damages defined” in the AWDS. Importantly, the court concluded that the “include but not limited to” language does not expand the class of such necessitated expenses.” Id. at 203 (emphasis added). We believe that allowing the recovery of attorney fees under the AWDS would do just that, expand the circumscribed damages defined by the General Assembly.
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Our conclusion that the language of subsection (c)(3) does not compel the recovery of reasonable attorney fees and expenses under the AWDS is also consistent with the general rule that wrongful death statutes must “be construed „strictly against the expansion of liability.’” Butler, 904 N.E.2d at 202 (emphasis in original). Finally, this strict construction is consistent with the “American Rule” concerning the payment of attorney’s fee, which is followed in Indiana, and requires each party to pay his or her own attorney fees absent an agreement between the parties, statutory authority, or rule to the contrary. See Fackler v. Powell, 891 N.E.2d 1091 (Ind. Ct. App. 2008), trans. denied.
For all of these reasons, we conclude that attorney fees and expenses incurred by the personal representative’s attorney are not recoverable damages under the Adult Wrongful Death Statute, and therefore, the trial court’s grant of partial summary judgment in favor of the Fund is hereby affirmed.
Affirmed.
BRADFORD, J., concurs.
RILEY, J., dissents with opinion.
RILEY, Judge, dissenting.
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In light of the Estate of Kuba, Butler, and Hillebrand, I would hold that reasonable attorney fees are recoverable damages under the AWDS. While the AWDS does not list every damage recoverable, its open-ended phrase “may include but are not limited to” is not without boundaries but rather is restricted by the nature of the damages which the survivor proposes to recover in the action. As such, the damages which may be included must arise from a pecuniary loss to a survivor as a result of the decedent’s death and must be compensatory in nature. Viewing attorney fees in this regard, I note that these fees are characterized as compensatory as they reimburse the personal representative for the costs incurred from the administration of the wrongful death estate and the prosecution of the claim. These costs are pecuniary losses necessitated by the wrongful death; without the wrongful death these costs would not have been incurred.
Furthermore, unlike the majority’s, this holding produces a harmonious result between the GWDS, AWDS, and CWDS. At the moment, only the GWDS which pertains to adults who die without spouses or dependents and the CWDS which pertains to the wrongful death of children, unambiguously allow recovery of attorney fees and expenses for the administration of the wrongful death estate. I can discern no logical reason why the AWDS would not allow reasonable attorney fees as well by virtue of statutory interpretation of the “may include but are not limited to” language. If the Legislature would have explicitly precluded the recovery of reasonable attorney fees in the AWDS then it could have specifically mentioned these damages in Subsection (c)(2) which enumerates the damages which are excluded from recovery. Therefore, I conclude that the trial court erred when it found that attorney fees and expenses incurred by the personal representative’s attorney are not recoverable damages under Indiana’s Adult Wrongful Death Statute.