DICKSON, J.
In this interlocutory appeal, the plaintiff in a medical negligence wrongful death action challenges the trial court’s grant of partial summary judgment finding that the Adult Wrongful Death Statute (“AWDS”), Ind. Code § 34-23-1-2, does not allow recovery of attorney fees. The Court of Appeals affirmed the partial summary judgment. McCabe v. Comm’r, Ind. Dep’t of Ins., 930 N.E.2d 1202 (Ind. Ct. App. 2010). In contrast, other panels of the Court of Appeals have recently concluded to the contrary. Hematology-Oncology of Ind., P.C. v. Fruits, 932 N.E.2d 698 (Ind. Ct. App. 2010), trans. granted today, ___ N.E.2d ___ (Ind. 2011); Ind. Patient’s Comp. Fund v. Brown, 934 N.E.2d 168 (Ind. Ct. App. 2010), trans. granted today, ___ N.E.2d ___ (Ind. 2011); Hillebrand v. Estate of Large, 914 N.E.2d 846 (Ind. Ct. App. 2009), trans. not sought. To resolve this issue, we granted transfer in McCabe and now hold that attorney fees are recoverable under the AWDS.
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… The trial court granted partial summary judgment to the Fund on two issues, finding (a) that the General Wrongful Death Statute (“GWDS”), Ind. Code § 34-23-1-1, and the AWDS, Ind. Code § 34-23-1-2, “are disjunctive remedies” and that the plaintiff, “having chosen to sue under the AWDS . . . must look to that statute for authority to recover attorneys fees,” and (b) that the AWDS does not allow recovery of attorney fees. Appellant’s App’x at 44–45. This interlocutory appeal was authorized by the trial court and accepted by the Court of Appeals. The plaintiff challenges only the availability of attorney fees under the AWDS but argues that the provisions of the GWDS should be considered in construing the AWDS.
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In statutory interpretation, however, paramount consideration must be given to the basic principle that two statutes that apply to the same subject matter must be construed harmoniously if possible. Marion County Sheriff’s Merit Bd. v. Peoples Broad. Corp., 547 N.E.2d, 235, 237 (Ind. 1989). This rule takes precedence over other rules of statutory construction. Id.; Johnson County Farm Bureau Coop. Ass’n v. Ind. Dep’t of State Revenue, 568 N.E.2d 578, 584 (Ind. T.C. 1991) (“This rule is so important that it trumps all other rules of statutory construction.”).
The enactment of the AWDS in 1999 occurred shortly after the decision in Estate of Mil-ler v. City of Hammond, 691 N.E.2d 1310 (Ind. Ct. App. 1998), trans. denied, in which the court held that nondependent parents could not recover damages for the wrongful death of their 23-year-old unmarried adult son. The structure of the AWDS does not parallel that of the GWDS in creating a new statutory cause of action, but it appears to focus upon the mere amplification of damages allowed by the GWDS to include the loss of the adult person’s love and companionship in the narrow class of actions for the wrongful death of an unmarried adult without dependents. The AWDS also specifically designated only two types of damages that could not be recovered: punitive damages and “damages awarded for a person’s grief.” Ind. Code § 34-23-1-2(c)(2). If the legislature had desired the AWDS to exclude elements of damages expressly included in the GWDS, this would seem the most likely way to have ensured such objective. Significantly, the General Assembly designated the GWDS as Section 1 and the AWDS as Section 2 of Chapter 1 addressing “Wrongful Death Generally.” Considering the GWDS and the AWDS in pari materia and warranting harmonious interpretation, we find that the phrase “may include but are not limited to” in the AWDS includes the availability of attorney fees and all other elements of dam-ages permitted under the GWDS.
We acknowledge that a similar non-exhaustive list of damages in the GWDS has been constrained to allow recovery only of damages of a pecuniary nature. [Footnote omitted.] See Durham, 745 N.E.2d at 763 (finding the “but not limited to” phrase to allow for other compensatory damages, but not punitive damages); Kuba, 508 N.E.2d at 2 (declining to expand “but not limited to” to include statutory treble damages due to a tortfeasor’s driving while intoxicated, which treble damages are not “of the same genre” as the pecuniary losses permitted by the wrongful death statute). While these decisions may restrain the outer limits of the “but not limited to” language, they do not undermine our conclusion that attorney fees, as specifically permitted by the GWDS, are included in the open-ended authorization of permissible compensatory damages under the AWDS.
In conclusion, we hold that reasonable attorney fees incurred in the prosecution of an ac-tion under the Adult Wrongful Death Statute are within the damages permitted by the statute. [Footnote omitted.] The entry of partial summary judgment is reversed. This cause is remanded for further proceedings.
Sullivan and David, JJ., concur. Shepard, C.J., dissents with separate opinion in which Rucker, J., concurs.
SHEPARD, Chief Justice, dissenting.
I would have expected that two straightforward principles would lead this Court to the same result reached by the trial judge and by the Court of Appeals.
First, this state’s tribunals have long adhered to what is typically called the “American Rule,” which is to say that each party to a lawsuit pays his or her own attorney fees unless there is a statute, court rule, or agreement between them that provides otherwise. Porter Development, LLC v. First Nat’l Bank of Valparaiso, 866 N.E.2d 775 (Ind. 2007); Gavin v. Miller, 222 Ind. 459, 54 N.E.2d 277 (1944). We have enforced this rule in a variety of settings. See, e.g., Pond v. Pond, 700 N.E.2d 1130 (Ind. 1998) (attorney fees in dissolution); Malachowski v. Bank One, Indianapolis, N.A., 682 N.E.2d 530 (Ind. 1997) (attorney fees in trust code).
We have likewise enforced this rule with reliable vigilance in tort litigation. Even where there is a statutory basis for requesting fees, we have administered the statute by barring fees except in the most egregious circumstances, that is, when ordering fees is tantamount to punishment for outrageous behavior. Kahn v. Cundiff, 543 N.E.2d 627 (Ind. 1989) (adopting 533 N.E.2d 164, 171) (fee request based on statute governing frivolous litigation requires that the claim or defense was undertaken “primarily for the purpose of harassment”).
In the present case, the majority acknowledges, as it must, that the General Assembly has not included the term “attorney fees” in the Code provision at issue, even though the legislature did so in similar settings and almost contemporaneously. This difference alone would customarily be thought indicative of legislative intent.
But the majority says that the legislature has in fact enacted a provision on fees in the Adult Wrongful Death Statute. It is the “may include but are not limited to” phrase that introduces those things for which recompense may be obtained.
That assertion leads straight to a second rule of construction commonly applied to statutes enacted in a field generally covered by the common law. As Justice Dickson has reminded us, a statute “in derogation of common law must be strictly construed.” Giles v. Brown County ex rel. its Bd. of Comm’rs, 868 N.E.2d 478, 482 (Ind. 2007) (Dickson, J., dissenting). Statutes authorizing recovery for wrongful death, of course, are undeniably in derogation of the common law.
This bedrock principle of interpretation is especially valuable to interpreting the statutes we have before us. Both the Adult Wrongful Death Statute and the Child Wrongful Death Statute were enacted for the benefit of claimants whose recovery under the common law would have been non-existent, or whose recovery under the General Wrongful Death Statute would have been minimal due to the operation of rules about economic loss. In extending a remedy where little or no recovery would likely have occurred before, the legislature placed boundaries around the amounts that could be recovered. In AWDS, the boundaries take the form of statutory caps on damages; in CWDS, the boundaries are temporal (i.e., for damages only until the child would have reached twenty or twenty-three, if a student).
It seems altogether plausible that in extending the possibility of recovery where little chance or none existed before, the legislature would (indeed the words enacted demonstrate that it did) make discreet decisions about various elements of recovery, measures of recovery, limits on damages, and the availability of fees. In particular, it seems unsurprising that it would authorize attorney fees for the more limited recovery authorized in CWDS and decide not to do so for AWDS. Whether or not this describes the legislative intent, our long-standing rule about strict construction of statutes in derogation of the common law would point away from the decision announced today.
Rucker, J., concurs.