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Filed: January 19, 1988.


Appeal from the Huntington Circuit Court, Estate Numbers E-366 and E-367, the Honorable Dane Mann, Presiding Judge.

Sullivan, J., Buchanan, J. and Miller, J. concur.

Author: Sullivan


Michael Vollmar and Summit Bank, as guardians of Joshua Vollmar (Joshua), appeal the trial court's decision denying the guardian's petition to set aside an award of attorneys' fees.

We affirm in part and reverse in part.

Susan Rupright and her daughter, Amanda Rupright, were killed in an automobile accident. Amanda was survived by her husband, Bradley Rupright, and Joshua, her son by an earlier marriage. Bradley petitioned to have himself appointed as personal representative of Susan and Amanda's estates for the purpose of bringing wrongful death actions against the drivers of the other two vehicles involved in the accident. He was appointed and was authorized to administer the estate without court supervision and without bond. He employed William Mills as his attorney to pursue the claims. Mills and Bradley entered into a contingent fee agreement whereby Mills would be paid one-third of any recovery. Mills subsequently employed another attorney, Sherrill Colvin, to aid him in the litigation. Shortly thereafter, the case against one of the drivers was settled for $105,000. The trial court approved payment of one-third of this sum to Colvin and Mills. Michael Vollmar, Joshua's natural father, petitioned the court on Joshua's behalf to set aside the award of attorneys' fees as being clearly excessive.[Footnote 1] Vollmar and the Bank[Footnote 2] (hereinafter referred to as Vollmar) now appeal the trial court's denial of that petition.

Vollmar first argues that the petition to set aside the fees should have been granted because neither Vollmar nor Joshua was a party to the contingent fee agreement nor were they represented in the negotiations which resulted in the contract. Vollmar concedes that only the personal representative of a decedent has the authority to bring a wrongful death action. Thomas v. Eads (1980) 1st Dist. Ind.App., 400 N.E.2d 778. 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 Bradley, 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.

Vollmar next argues that the trial court erred in not admitting certain testimony by the insurance claims adjuster who handled the decedents' claims. Vollmar argues that the testimony was relevant to the question of the reasonableness of the attorney's fees. The questions which were deemed irrelevant by the trial court were as follows:

"Q In your expert opinion, Mr. Mellon, do you believe that had you had the file longer, you could have settled this case?

Q Mr. Mellon, in all your years as an insurance claims adjuster, was there ever a lawsuit filed so quickly as in this case?" Transcript at 10-11.

Because the necessity and reasonableness of the contingent fee contract had not previously been considered by the trial court in terms of the factual setting and circumstance, the questions did seek information relevant, at least minimally, to that issue. It was therefore error to exclude that evidence.

In any event, the excluded testimony was cumulative in nature. Mellon's testimony would have implied that the lawsuit was hastily filed. There was ample evidence admitted of record which, if credited, carried the unmistakable inference that the filing of the lawsuit was uncommonly hurried, and that direct and expeditious settlement Discussion with the insurer might have made the filing of a complaint unnecessary. There is not ground for reversal in this regard.

Vollmar next argues that the evidence presented at the hearing was without conflict and conclusively established that the contingent fee award should have been set aside. The award of attorney fees in probate matters is generally within the sound discretion of the trial court and will not be disturbed absent an abuse of judicial discretion. Mikesell v. Mikesell (1982) 4th Dist. Ind.App., 432 N.E.2d 55, reh. dismissed 436 N.E.2d 95, reaffirmed this general premise although it approved of the trial court's discretionary reduction of attorney fees. In the case before us the court's award was made pursuant to the contingent fee agreement. Thus, Vollmar's attack is, in essence, an attack upon the validity of the contingent fee contract.

In ordinary circumstances, a contingent fee contract is binding between the attorney and his client absent a showing of unconscionability. Page v. Schrenker (1982) 4th Dist. Ind.App., 439 N.E.2d 694.[Footnote 3]

In one sense, Bradley Rupright is like the usual client in a contingent fee situation. He is a personal representative of an estate yet to be acquired. The estate may be acquired only through the efforts of the attorney in asserting the wrongful death claim. Those efforts may or may not prove to be successful. In this sense, the facts as they may have appeared in the preliminary stages of this controversy would seem to make a contingent fee arrangement appropriate.

In another sense, however, he is unlike the usual client. That portion of wrongful death proceeds not representing medical, hospital, funeral and burial expenses inures to the exclusive benefit of the widow or widower and the dependent children or dependent next of kin, and is not subject to the claims of creditors. I.C. 34-1-1-2 (Burns Code Ed. Repl. 1986). Accordingly, it might be reasonably argued that a dependent child in such circumstance is much more directly interested in the arrangement for attorney fees than would be a normal distributee in an estate. In this sense, the personal representative is a trustee for the benefit of the distributee and in the hiring of counsel does not act in his individual capacity or for his own benefit. Thomas v. Eads, supra, 400 N.E.2d 778. Bradley had an obligation with respect to the interests of Joshua in addition to his own interests as a prospective distributee.

Given the extraordinary fiduciary nature of the personal representative's responsibility in wrongful death matters, his activities and those of his attorney must be totally circumspect. See Diaz v. Duncan (1980) 4th Dist. Ind.App., 406 N.E.2d 991 at 1002. He may, of course, enter into a contingent fee arrangement if such is the only practical way in which a distributable estate might be ...

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