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by: Colin E. Flora
Today’s discussion takes us to a recent ruling from the Indiana Supreme Court that delved into the often sparsely charted waters of wrongful-death estates. Under Indiana law, when a person dies as a result of the wrongful actions of another a claim may be brought by the beneficiaries of that decedent against the person(s) who caused the death. As we have discussed on numerous occasions, Indiana has three wrongful-death statutes: the general wrongful death statute, the adult wrongful death statute, and the child wrongful death statute. The question of who is the permissible person to bring a claim on behalf of the beneficiaries, as we have seen, can be complicated. Generally speaking, a claim for wrongful death brought under either the general wrongful death statute and the adult wrongful death statute must be brought by a duly appointed personal representative of a wrongful-death estate. For a child, it is typically a claim to be brought by the parents directly and not through an estate.
But how exactly is it decided who should be the personal representative? Therein lies the questions at the heart of Lewis v. Toliver (In re Unsupervised Estate of Lewis). The resolution of those questions is the focus of our discussions today.
Other Notable Decisions
Before we jump into our discussion of Lewis, there are a few other notable rulings from the past several weeks that merit note.
Flatrock River Lodge v. Stout — The Indiana Court of Appeals made two notable rulings: (1) that the death of a joint tenant after a judgment lien has attached to property does not moot a subsequent action to foreclose upon that lien; and (2) the exemption for “[a]ny interest that the debtor has in real estate held as a tenant by the entireties” created by Ind. Code § 34–55–10–2© applies only to actual tenancies by the entireties; it does not extend to property held by husband and wife as joint tenants with right of survivorship.
Burton v. Benner — The Indiana Court of Appeals held that questions of fact—specifically the inferences to be drawn from undisputed facts—precluded summary judgment on the issue of whether an off-duty police officer, wearing street clothes, and driving to his son’s baseball game was acting within the scope of his employment so as to invoke the immunity provisions of Ind. Code § 34–13–3–5(b) & © simply because the officer was required to maintain radio contact while operating his squad car for personal use.
Torrence v. Gamble — Reaffirming Utley v. Healy, the Indiana Court of Appeals held that the Indiana Comparative Fault Act does not prohibit furnishing the jury with a general verdict form that permits a finding in favor of the defendant without providing a specific apportionment of fault. The court did, however, instruct that best practice would be for the trial court to either not provide such a verdict form or to do so with specific instructions on its use.
G.F. v. St. Catherine Hospital, Inc. — The Court of Appeals of Indiana provided two important conclusions. First, a local procedural rule requiring a statement of the opposing party’s position on any motion that is filed but remains silent as to any penalty for failure to comply with the rule does not act as a conduit by which to extend the thirty-day response deadline of Indiana Trial Rule 56. And, second, a claim arising out of a doctor’s errant disclosure of a patient’s medical condition while a person not privileged to hear such information was present is not a claim subject to the rigid procedures of the Indiana Medical Malpractice Act.
Appointing Personal Representatives — Lewis v. Toliver
Turning back to Lewis v. Toliver, let us begin with what happened. A devastating car crash took the lives of a husband and wife along with the wife’s mother, sparing only the couple’s two-year-old daughter. The deceased husband also left behind his parents and a six-year-old son by another woman. In what became a race to the courthouse, the husband’s father filed to open a wrongful-death estate and have himself appointed as the personal representative. After the father was appointed as the personal representative without notice to either the mother of the boy or the guardians of the daughter, the father filed suit on behalf of the estate. The mother of the boy and the guardian of the daughter later sought to have themselves replace the father as the personal representative. The trial court agreed and replaced the father with both the guardian and the boy’s mother as co-personal representatives. The father, discontent with the ruling, appealed.
On appeal, the father contended that the trial court lacked the authority to remove and replace him without first triggering the removal procedures of Ind. Code § 29–1–10–6. On transfer to the Indiana Supreme Court, the court ruled that the trial court did not err because the wrongful-death claim was still pending, making the subsequent ruling a reconsideration of the appointment order, not a removal under the statute. The court also found that the decision to remove the father and appoint the guardian and the boy’s mother was not an abuse of discretion due to the specific facts present in the case.
But the court did not end there. Acknowledging that Indiana’s wrongful-death statutes do not provide procedures for notifying other beneficiaries before opening a wrongful-death estate, the court judicially created such procedures:
Senior’s race to the courthouse just days after the accident deprived other interested parties of the opportunity to seek their own appointment. One source of this problem is that the governing statute requires no notice to beneficiaries or other interested parties before the court appoints a special administrator. I.C. § 29-1-10-15. Compounding this problem is that the statute affords no right of appeal to someone aggrieved by the court's appointment. Although the statute does not require it, to avoid potential due-process problems, a court faced with a motion for appointment as a special administrator should afford notice to beneficiaries or their legal representatives and hold a hearing. The motion should identify each potential beneficiary or legal representative likely to be interested in the appointment of a special administrator, along with each person’s contact information. The court should then notify such persons of the motion and the date, time, and place for hearing on the motion. The hearing is to determine whether the movant would be a suitable special administrator and to permit other interested persons the opportunity to object or to file their own requests for appointment. If the motion does not identify a potential beneficiary or legal representative, it is more likely the trial court will have abused its discretion if it later refuses to rescind its appointment should that person, unnamed and unidentified in the initial motion, later come forward and assert an interest in the appointment. Though not required by Trial Rule 53.4, the trial court should promptly (within five days) schedule a hearing and provide notice when someone moves to reconsider the appointment of a special administrator.
This shift may have difficult ramifications in cases with particularly complex family structures in which tracking-down and identifying beneficiaries may be extremely difficult. Best practice will be, whenever possible, to have the beneficiaries signoff on the specific personal representative.
Join us again next time for further discussion of developments in the law.
Lewis v. Toliver (In re Unsupervised Estate of Lewis), ---N.E.3d--- No. 18S-EU-507, 2019 Ind. LEXIS 395, 2019 WL 2335856 (Ind. June 3, 2019) (Slaughter, J.)
Flatrock River Lodge v. Stout, ---N.E.3d---, No. 18A-CC-1919, 2019 Ind. App. LEXIS 261 (Ind. Ct. App. June 14, 2019) (Najam, J.).
Burton v. Benner, ---N.E.3d---, No. 19A-CT-135, 2019 Ind. App. LEXIS 260, at *1 (Ind. Ct. App. June 13, 2019) (Baker, J.).
Torrence v. Gamble, ---N.E.3d---, No. 18A-CT-2695, 2019 Ind. App. LEXIS 218, 2019 WL 2181214 (Ind. Ct. App. May 21, 2019) (Riley, J.).
Utley v. Healy, 663 N.E.2d 229 (Ind. Ct. App. 1996) (Sharpnack, C.J.), trans. denied.
G.F. v. St. Catherine Hosp., Inc., No. 18A-PL-2460, 2019 Ind. App. LEXIS 204, 2019 WL 1983837 (Ind. Ct. App. May 6, 2019) (Riley, J.).
Indiana Comparative Fault Act, codified at Ind. Code §§ 34–51–2–1 et seq.
Indiana Medical Malpractice Act, codified at Ind. Code ch. 34–18.
General Wrongful Death Statute, codified at Ind. Code § 34–23–1–1.
Adult Wrongful Death Statute, codified at Ind. Code § 34–23–1–2.
Child Wrongful Death Statute, codified at Ind. Code § 34–23–2–1.
Colin E. Flora, Court of Appeals Holds Indiana Child Wrongful Death Statute Permits Award of Attorney Fees and Costs, Hoosier Litig. Blog (June 23, 2017).
Colin E. Flora, Indiana Supreme Court Holds that Wrongful Death Claim Does Not End With Death of Heirless Sole Beneficiary, Hoosier Litig. Blog (Mar. 8, 2019).
Colin E. Flora, Indiana: Who Can Bring Claim for Death of Child When Both Parents Also Die?, Hoosier Litig. Blog (May 18, 2018).
*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.