Grabach v. Evans, CIV. 1:01-CV-230.
| Decision Date | 05 March 2002 |
| Docket Number | No. CIV. 1:01-CV-230.,CIV. 1:01-CV-230. |
| Citation | 196 F.Supp.2d 746 |
| Parties | Marjorie GRABACH, as Personal Representative of the Estate of Shirley Asa, Deceased Plaintiff, v. Delward L. EVANS and Swift Transportation Company, Inc. Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Leonard Eilbacker, Eilbacher Scott Inc., Fort Wayne, IN, pro se.
Justin A. Lebamoff, Lebamoff Law Offices, Fort Wayne, IN, for Shirley Asa.
Thomas E. Farrell, Scopelitis, Gaarvin, Light andHanson, Indianapolis, IN, for Defendants.
Presently before the court are cross-motions for summary judgment filed by the Defendants, Delward L. Evans and Swift Transportation Company, Inc. (collectively, "the Defendants;" individually, "Swift" and "Evans") and Marjorie Grabach, personal representative of the estate of Shirley Asa, deceased ("the Estate"). On February 27, 2002, the court held a telephone conference on the motions. For the following reasons, the Defendants' Motion for Summary Judgment will be GRANTED in part, the Estate's Motion for Summary Judgment will be DENIED.
Summary judgment is only appropriate by the very terms of Rule 56(c) where there exists "no genuine issue as to any material facts and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. This notion applies equally where, as here, opposing parties each move for summary judgment in their favor pursuant to Rule 56. I.A.E., Inc. v. Shaver, 74 F.3d 768, 774 (7th Cir.1996). Thus, when cross-motions for summary judgment are filed, the "[c]ourt must take a dual perspective: [e]ach movant has the burden of establishing the absence of any genuine issue of material fact on its own motion." ITT Industrial Credit Co. v. D.S. America, Inc., 674 F.Supp. 1330, 1331 (N.D.Ill.1987).
On May 20, 1999, decedent, Shirley Asa ("Asa"), was a passenger in a vehicle driven by Jeannette Smethers, which vehicle was rear-ended by a freightliner driven by Defendant Evans after he failed to slow his vehicle in accordance with traffic conditions and traffic signals. The collision caused Asa to sustain serious personal injuries ultimately resulting in her death. At the time of the accident, Evans was an employee of Swift.
As a result of these events, Plaintiff filed the instant action in Whitley County Superior Court alleging wrongful death under Ind.Code § 34-23-1-1. Based on diversity, the defendants removed the action to this court and thereafter stipulated liability. The sole question remaining is the amount of damages due and owing under Indiana's Wrongful Death Act ("the Act").
The parties agree that the total pecuniary loss resulting from Asa's death is $143,703.15 consisting of the following expenses:
Medical Expenses $132,241.42
Funeral and Burial Expense $ 10,092.85
Administration of Estate $ 661.99
Advances & Expenses by Attorney $ 706.89
The parties also agree that "reasonable attorney's fees" are part of any recovery under the Act. Where the parties' agreement ends, however, is on the legal issue of whether the Estate may recover from the Defendants as "reasonable attorney's fees" the one-third (1/3) contingency fee the Estate agreed to pay to its attorneys to pursue the wrongful death claim. The Defendants urge that the Act provides only for recovery of a "reasonable attorney's fee" and that as non-parties to the fee arrangement between the Estate and its attorneys, they are only required to pay a reasonable hourly rate for the attorneys' services not the contingency fee that the Estate agreed to pay to its attorneys. It is to this legal question that the court now turns.
As noted, the parties agree that under the Act, an estate of a deceased is entitled to recover "for the necessary and reasonable costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney's fee. . ." Ind.Code § 34-23-I-1. The Estate urges that contingency fee agreements may be used as the basis for determining the reasonable attorney's fee to be paid by the defendants in a wrongful death action. In support of its theory that it is entitled to recover the full one-third (1/3) contingency fee from the Defendants as a reasonable attorney's fee, the Estate cites to Vollmar v. Rupright, 517 N.E.2d 1240 (Ind.Ct.App.1988). The Estate believes Vollmar stands for the general proposition that contingency fees paid to attorneys to prosecute a wrongful death action are recoverable from the defendants as reasonable attorney's fees. After a thorough review of Vollmar, however, the court concludes that the case addresses a situation entirely different from the one presented here.
In Vollmar, an heir of an estate1 sued the personal representative to set aside a contingent fee award approved by the trial court to be paid to the estate's attorneys out of the proceeds of a settlement in a wrongful death action brought on behalf of the heirs by the personal representative. Vollmar contended that his share of the estate should not be reduced by the contingent fee arrangement because he was a non-party to the agreement between the personal representative and the attorneys he employed. The court rejected this argument stating:
Vollmar concedes that only the personal representative of a decedent has the authority to bring a wrongful death action . . . Because they were not parties to the action, it therefore follows that neither Joshua nor Vollmar was required to be a contractual party to the contingent fee arrangement. They had an interest in the outcome of the litigation, but [Rupright], as personal representative, remained the only individual who could pursue the claims. If a personal representative is to effectively pursue wrongful death actions, he must have authority to employ an attorney. To require that all entities with an interest in the prospective res be made parties to fee agreements or be given a voice in the employment of the attorney would undoubtedly result in unreasonable delay and confusion in the resolution of wrongful death claims. Accordingly, the fact that neither Joshua nor Vollmar was a party to the contingent fee agreement does not mandate a setting aside of the award of attorneys' fees.
The above passage clearly indicates that the Vollmar court was addressing the relationship between an heir and the personal representative entitled to bring claims on behalf of the estate not, as in the present case, between the personal representative and a defendant in a wrongful death action.2 Indeed, Vollmar holds only that an heir may be bound by a contingent fee arrangement entered into between a personal representative and the estate's attorneys —a holding consistent with the right of the personal representative to pursue claims on behalf of the estate. The case provides no authority for the question posed here, that is, whether a contingent fee arrangement is per se a "reasonable attorney's fee" under the Wrongful Death Act so as to require a defendant in the wrongful death suit to pay the contingent fee as part of the estate's recovery of attorney's fees under the Act. Thus, Vollmar does not aid the Estate in its attempt to have the contingent fee added to the recovery to which it is entitled under the Wrongful Death Act.
Having disposed of Vollmar as unpersuasive, the issue presented here has been addressed on numerous occasions by Indiana courts. In Waxman Industries v. Trustco Development Co., 455 N.E.2d 376 (Ind.Ct.App.1983), the Indiana Court of Appeals decided whether the obligor of an instrument who is responsible for reasonable attorney fees is bound by a contingent fee contract between the obligee and his attorney. After discussing the contractual nature of the contingent fee agreement between an attorney and his client, the court held that
a contingent fee contract...
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