1. The Intersection of Probate and Tort Law (The things every plaintiff and defense lawyer must know about the probate process) Allen County Bench/Bar Conference February 26, 2016

2. When must the Court approve and supervise a minor settlement? Some believe Ind. Code 29-3-3-2 means that a Court need not approve a minor settlement if the amount is less than $10,000: When the entire property of an incapacitated person does not exceed the value of ten thousand dollars ($10,000), the court may, without the appointment of a guardian, giving of bond, or other order of court, authorize: (1) the deposit of the property in a depository authorized to receive fiduciary funds in the name of a suitable person designated by the court; or (2) if the property does not consist of money, the delivery of the property to a suitable person designated by the court. The person receiving the property shall hold and dispose of the property in the manner the court directs and is entitled to reasonable compensation and to reimbursement for reasonable expenses incurred in good faith on behalf of the incapacitated person and approved by the court.

3. When must the Court approve and supervise a minor settlement? It doesn’t matter if a minor’s proposed settlement is $10 million, $10,000 or $10 or 10 cents, a minor’s compromise requires Court approval. The $10,000 reference in IC 29-3-3-2 applies only to liquidated sums also known as “indebtedness to a minor” like life insurance payouts or inheritances. Just because a settlement happens to be small does not mean the Court does not need to inquire into its’ reasonableness. In fact, because it is “small”, that might be a very good reason for the Court to scrutinize it! See 29-3-9-7 regarding the need for the Court to approve all claims of an incapacitated person.

4. What is the difference between a wrongful death (only) estate and a regular Supervised or Unsupervised Administration?

5. Wrongful Death Issues  When must an estate be opened to prosecute a wrongful death claim?  Every Personal Representative appointed for regular administration has the authority to pursue a wrongful death claim  However, an administration for the sole purpose of pursuing a wrongful death claim may be opened (Ind. Code 29-1-10-17)  McKnight – estate not necessary to pursue medical malpractice claim.  Statute of Limitations issues when personal injury plaintiff dies pre-suit

6. Wrongful Death Issues  Who qualifies as a “minor” for purposes of a Child Wrongful Death Act Claim  Ind. Code 34-23-2-1(b)  A child means an unmarried individual without dependents who is: (1) less than twenty (20) years of age; or (2) less than twenty- three (23) years of age and is enrolled in a postsecondary educational institution or a career and technical education school or program that is not a postsecondary educational program.  The term “child” also includes a fetus that has attained viability.

7. Wrongful Death Issues  When is a hearing required to approve the settlement?  What if the adult beneficiaries in an Adult Wrongful Death Claim cannot agree as to the distribution of the settlement funds?

8. Attorney Fee Issues in Wrongful Death Cases  When are attorney fees recoverable under the General Wrongful Death Act, the Adult Wrongful Death Act, and the Child Wrongful Death Act?  The “McCabe Trilogy”  McCabe v. Commissioner, Indiana Dept. of Ins., 949 N.E.2d 816 (Ind. 2011)  Hematology-Oncology Indiana, P.C. v. Fruits, 950 N.E.2d 294 (Ind. 2011)  Indiana Patients Compensation Fund v. Brown, 949 N.E.2d 822 (Ind. 2011)  SCI Propane v. Frederick, 35 N.E.3d 1290 (Ind. 2015)

9. Attorney Fee Issues in Wrongful Death Cases CaseFees ? Source Adult Wrongful Death ActYESMcCabe Child Wrongful Death ActYESInd. Code 34-23- 2-1(f)(3)(E) General Wrongful Death Act where decedent leaves surviving spouse, surviving children, or surviving dependent next of kin NOSCI Propane General Wrongful Death Act where decedent leaves no surviving spouse, dependent children, or dependent next of kin YESSCI Propane

10. Attorney Fee Issues in Wrongful Death Cases – Unresolved Issues  Are attorney fees an item of damages such that:  Subject to discovery pre-trial?  Must be established during part of plaintiff’s case in chief?  Court approval of attorney fees?

11. Questions?