Indiana Supreme Court Holds that Wrongful Death Claim Does Not End With Death of Heirless Sole Beneficiary

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by: Colin E. Flora

     Today’s discussion supplants one we had back in June, wherein we discussed the Court of Appeals of Indiana’s ruling in Horejs v. Milford. There, the appellate court held that when the lone beneficiary of a wrongful-death claim dies during the pendency of the wrongful-death suit leaving no heirs that the claim dies with the beneficiary. The Indiana Supreme Court granted transfer of that decision and reversed.

     Before we delve into the Indiana Supreme Court’s Horejsruling, we pause to note a handful of other notable Indiana civil decisions that have been handed down since our last installment:

  • Gasbi, LLC v. Sanders: For the first time, the Indiana Court of Appeals has interpreted the catchall provision of the Indiana Deceptive Consumer Sales Act and has held that it is sufficient to incorporate violations of Ind. Code § 9–32–13–7, which has no private right of action, into the list of actionable deceptive acts under the Act.

  • Converse v. Elkhart General Hospital, Inc. provided an excellent overview of Indiana premises liability law in the context of trip and fall cases and also of Indiana’s summary judgment standard.

  • Todd v. Coleman reminds that once a client authorizes her counsel to enter into a settlement, the settlement can become effective by the attorney’s oral acceptance even if the client later changes her mind and subsequent settlement paperwork is never signed.

  • Ameristar Casino East Chicago, LLC v. Ferrantelli: The discovery stage of litigation is meant to be conducted largely without court intervention and with the premise that the breadth should be liberal in scope so as to allow each party to fairly represent all relevant facts at trial. Abuses in discovery, however, are common place. In the Ferrantelli decision, the Court of Appeals of Indiana affirmed a trial court’s discovery sanction that entered default judgment against the defendant for repeated noncompliance with discovery obligations even after court intervention.

  • Indiana Farmers Mutual Insurance Co. v. Weaver held that an exclusion in an automobile insurance policy for “Using a vehicle without a reasonable belief that that ‘insured’ is entitled to do so” does not apply to an insured who operated his vehicle with a suspended license.

  • Rose v. Martin’s Super Markets L.L.C.: Continuing a line of cases developing Indiana premises liability law resulting from injuries suffered by patrons of an establishment as a result of the criminal acts of other patrons, the Court of Appeals of Indiana held that a grocery store did not owe a duty to a customer who was shot by another customer because “it was not reasonably foreseeable for a grocery store to expect death by gunfire to befall a customer and therefore”. Moreover, the court held that there was no subsequent duty after the customer was shot to protect her from exacerbation of her injuries—a second shot that killed the injured customer—“because the Store did not have knowledge of [her] injury in time to offer her assistance”.

  • Linares v. El Tacarajo & U-Pull-And-Pay, LLC saw a divided Court of Appeals of Indiana hold that an automobile salvage business was not liable to a patron who was injured when a mobile food truck owned by another business but operated on the property pursuant to a handshake deal exploded. The rationale of the majority was that the explosion was unforeseeable, relieving the salvage business of any duty to the injured patron. In dissent, Judge Kirsch noted six instances across the United States since 2013 of food trucks exploding and that food trucks are known to carry propane that can explode. Accordingly, Judge Kirsch would have denied the salvage business’s motion for summary judgment.

     Returning to Horejs, we start with what happened to produce the issue in the first place. The underlying case began with the death of a man’s wife due to complications with dialysis treatments. The husband brought claims on behalf of his late-wife’s estate under the Indiana General Wrongful Death Statute. But, while the case was pending, the husband passed away. He left no will and no natural heirs at law. After he died, the wife’s father and brother were named the successor co-administrator of the estate. The defendants then sought summary judgment to limit the estate’s claims to medical, funeral, and burial expenses due to the husband’s passing and presumptive extinguishment of his survivor claims for loss of consortium. Both the trial court and the court of appeals agreed with the defendants.

     The Indiana Supreme Court, however, did not agree. Looking to both the General Wrongful Death Statute and the Indiana Survivor Statute. From the wrongful death statute, the court found that “any final-expense damages inure to the decedent’s estate for payment of reasonable medical, hospital, funeral and burial expenses, and any excess damages, including survivor damages, inure to the exclusive benefit of the widow or widower and any dependents.” As all parties agree that the husband had a claim for loss of consortium until the moment he passed away, the issue was not whether there was a proper loss of consortium claim that could be prosecuted through the wife’s estate; rather the issue was properly whether the husband’s claim survived his passing by operation of the Survivor Statute, an outcome not addressed by the court of appeals.

     “Reading the[ ] statutes together, however, [the Indiana Supreme Court saw] no indication in the text of either statute that [the husband]’s claim for survivor damages terminated upon his death simply because he had no heirs.A plain reading of the text confirms that the claim for survivor damages, once properly asserted, does not abate due to the death of the once-surviving spouse.”

     The supreme court, like the court of appeals, considered the impact of Bemenderfer v. Williams on the analysis. Both the defendants and the court of appeals read the following passage in Bemenderfer to mean that there must be an heir to continue to prosecute the loss of consortium claim: “Because we conclude that [husband’s] damages did not abate upon his death, and because, as an heir, [daughter] stands to recover those damages . . .” But the supreme court, reading that sentence in context, found that it “simply explained why the Court’s opinion did not address a particular portion of the Court of Appeals analysis.” It did not establish the groundwork for pursuing a wrongful-death loss-of-consortium claims through a deceased-survivor’s estate. Accordingly, the court concluded: “Because the plain language of the wrongful death and survival statutes require that a properly-accrued claim does not abate, we hold that [the husband]’s claim for survivor damages could have survived regardless of the existence of an heir.”

     The analysis did not fully end there. The court recognized that the estate of the wife may not be the proper party to pursue the claim:

Although we hold today that an heir was not required under the wrongful death and survival statutes for [the husband]’s claim to continue, we are not convinced that the [wife’s estae] is the proper party to assert this claim. Defendants have hinted as much, arguing that the co-administrators of [the wife]’s estate should not be the party pursuing this claim. Rather, as Defendants suggest, [the husband]’s estate should have taken up this claim when it had the opportunity.[n.2]

[n.2] The trial court’s findings of fact indicate that [the husband]’s estate escheated to the state after his death in late 2015.

As noted above, the wrongful death statute allows a claim for damages beyond final-expense damages to “inure to the exclusive benefit of the widow or widower . . . to be distributed in the same manner as the personal property of the deceased.” As it relates to this provision, the survival statute allows an action to be continued "by or against the legal representatives or successors in interest of the deceased." Ind. Code § 34-9-3-1(a). Applied to [the husband]’s claim, survivor damages were to inure to his exclusive benefit. The survival statute allows [the husband]’s legal representative or successor in interest to continue this action beyond [his] death. This claim “is considered a continued action and accrues to the representatives or successors at the time the action would have accrued to the deceased if the deceased had survived.” As such, the party seeking any survivor damages to which [he] was entitled must be either a legal representative or successor in interest to [him].

We note that the key difference between Bemenderfer and today’s decision is that the daughter in Bemenderfer was appointed as a personal representative of the husband’s estate and the wife’s estate. This position allowed her to continue the husband’s claim for survivor damages on behalf of the husband’s estate after his death. Here, only [the wife]’s estate is before our Court. . . . But given that [the husband]’s claim for survivor damages could have survived [his] death regardless of the existence of an heir, we instruct the trial court on remand to consider whether a proper party exists to continue this claim such that [his] estate would be eligible to be reopened.

     So what is the takeaway? What the court has held is that when any beneficiary to a wrongful-death estate deceases, his or her estate may continue to seek recovery as a survivor action.

     Let’s look at what would happen if the court of appeals’ decision was the final say. The claim for the wife’s estate would be confined just to medical, funeral, and burial expenses because the husband’s claim would be fully terminated. Under this ruling, there is now the additional claim for the husband’s loss of consortium. Now, that is a meaningful result for two groups of people: the defendants, who must now be subject to damages the husband would have otherwise been able to recover, and the lawyers for the husband’s re-opened estate. The recovery, however, will not go to an heir of the husband because there is none. As the court’s footnote acknowledged, the money will simply escheat to the estate. In this case, it makes sense to litigate the matter to completion because there may be a payment to be made to the estate representative for his or her time and service and the lawyers who pursued the case—likely on contingency—will be able to recover for their time and investment. But the bulk of the recovery will become property of the state through intestacy procedures.

     The case opens a pathway to keep culpable parties from getting away scot free and allows the lawyers to get paid. But it should be the exceptional circumstance in which this occurs. If there are no heirs to be found at law, lawyers should advise their clients to execute a will to direct the proceeds of the claim to whomsoever the clients should choose instead of simply allowing the proceeds to become the property of the estate. Put simply, the lesson from the court of appeals’ ruling remains intact: if your client has no heir, advise him or her to make a will.

     Join us again next time for further discussion of developments in the law.

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*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.