May, J.
The Indiana Patient’s Compensation Fund (“the Fund”) appeals an order in this adult wrongful death action awarding Judy Holcomb, as personal representative of the estate of Mable Louise Cochran (“the Estate”), $50,440.00 in attorney fees to be paid by the Fund. The Fund argues on appeal the amount of fees exceeds that permitted by Ind. Code § 34-18-18-1, which provides: “When a plaintiff is represented by an attorney in the prosecution of the plaintiff’s claim, the plaintiff’s attorney’s fees from any award made from the patient’s compensation fund may not exceed fifteen percent (15%) of any recovery from the fund.”
As attorney fees are recoverable as pecuniary damages in an adult wrongful death action, we cannot adopt the Fund’s position that the total amount of attorney fees recoverable may be only 15% of what is taken from the Fund, without regard to whether or to what extent that amount includes attorney fees on the amount recovered before the Fund is reached. Instead, the 15% limitation applies only to new monies from the fund, not monies that otherwise might be characterized as attorney fees on the amount recovered before the Fund is reached, but that is included as damages when applied to the Fund. In other words, the 15% limitation does not apply to the assessment of damages caused by the tortfeasor or the calculation of excess damages of any type from the Fund.
However, as explained below, the trial court’s award in the case before us does not accurately reflect either the proper amount of attorney fees or the proper allocation of money awarded from the fund. We must therefore reverse and remand.
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Under the facts the parties have placed before us, including an agreement regarding the Fund’s liability that purported to include no attorney fees as damages, it is impossible to reach a result that is fair to the Estate and to its counsel, yet consistent with the statutory 15% limitation. As the trial court’s award does not accurately reflect either the proper amount of attorney fees or proper allocation of money awarded from the Fund, we must reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
PYLE, J., concurs.
ROBB, C.J., dissents with separate opinion.
ROBB, Chief Judge, dissenting
As I read the applicable statutes and case law, a reasonable attorney’s fee as an element of damages in an AWDS case is unlimited by Indiana Code section 34-18-18-1 and the entire amount is includable in the damages calculation, from which the Fund’s excess damages payment is to be determined. I also believe Section 34-18-18-1 does, however, limit the amount that may be paid to the attorney from that excess damages payment. Further, I believe the majority opinion overlooks the unique procedural posture of this case and is ultimately attempting to answer a question not being asked. I therefore dissent and would hold the trial court’s judgment assessing additional damages of $50,440.00 in attorney’s fees to the Estate and against the Fund should be affirmed.
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