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by: Colin E. Flora
After writing this post, I realized that the most important takeaway is easily overlooked in the body. I’m adding it here so you don’t miss it. If you are pursuing a wrongful death claim for a client who has no natural heirs, make sure the client has a will. If s/he does not and passes during the pendency of the case, the claim dies with the heirless client.
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This week, the Court of Appeals of Indiana gives us an opportunity to discuss an interesting scenario under Indiana’s General Wrongful Death Statute: what happens when one of the beneficiaries dies before the case is concluded? As we have discussed before, Indiana has three wrongful death statutes. The first enacted what is now called the General Wrongful Death Statute. It covers circumstances in which an adult person dies while either married or with dependents. The second is the Adult Wrongful Death Statute and it applies to adult persons who died without any dependents or a spouse. Finally, there is the Child Wrongful Death Statute that applies to persons under the age of 20 or up to 23 if the child is enrolled in postsecondary education.
Today’s discussion focuses on the General Wrongful Death Statute and the roll of statutory beneficiaries thereunder. The catalyst for our discussion is this week’s decision in Horejs v. Milford. We begin where the court began by looking at the types of damages recoverable under the GWDS:
Indiana's general wrongful-death statute establishes two categories of damages-what we will call “final-expense damages” and “survivor damages.” The statute provides that if the decedent is not survived by a spouse, dependent children, or dependent next of kin, the decedent's personal representative can recover, on behalf of the decedent’s estate, only final-expense damages: medical expenses related to the decedent's last illness or injury; funeral and burial expenses; and expenses of administering the estate and pursuing the wrongful-death action, including a reasonable attorney's fee. If the decedent issurvived by a spouse, dependent children, or dependent next of kin, the decedent’s personal representative can recover boththe final-expense damages on behalf the decedent’s estate andsurvivor damages, including lost earnings of the decedent, on behalf of the statutory beneficiary/ies.
The Court of Appeals framed the question as: “what happens when one of the statutory beneficiaries enumerated in the statute (in this case, a spouse) survives the wrongful-death decedent but then dies himself while the wrongful-death action is still pending-that is, what happens when the survivor who would have collected the survivor damages has ceased being a ‘survivor’?” As you may have guessed, Horeis is not a case of first impression. The Indiana Supreme tackled the question in Bemenderfer v. Williams.
In Bemenderfer, an elderly man brought a claim for the loss of his wife. While the case was pending, he passed away, leaving behind a daughter. Quoting the Bemenderfer decision, the Court of Appeals emphasized the following passage:
Hoy was eighty-two and suffering from Alzheimer’s and Parkinson’s when his wife died. He lost his life-long companion and caregiver. When Dorothy died, Hoy was placed in a nursing home and soon deteriorated to the point that he could not comprehend his wife’s death and lost all will to live. This human tragedy was compounded by its financial effect. Hoy’s estate was depleted by the additional expenses, and this loss was ultimately visited on his heirs.The wrongful death defendant should not benefit from the early death of a beneficiary, and certainly not from a death that was likely accelerated by a defendant’s own wrongdoing. At least under these circumstances, the very purpose of the law invoked by Bemenderfer—compensation of pecuniary loss—is furthered by allowing recovery.
So you might be thinking that the question is resolved with the answer being that the claim passes on to the heirs of now-deceased survivor. While you’d be correct in that answer, you’d be incorrect in thinking it was the end of the Horeis case. For, you see, there was one meaningful difference: there was no heir for the deceased survivor in Horeis. (I acknowledge that there may actually have been an heir, but the evidentiary submission as to that issue was ruled untimely by the trial court and not raised in the appeal.)
Now we have a more nuanced question: what happens when there is no heir? The answer to that is the case dies with the survivor. Based on the bolded language in the excerpt above, the Court of Appeals concluded that the Indiana Supreme Court’s ruling “turned on Hoy having an heir who would suffer a pecuniary loss if she couldn’t recover the survivor damages Hoy himself would have recovered if he had lived until the wrongful-death case was wrapped up. That is, the holding turned on the fact that an heir of the deceased statutory beneficiary would receive a smaller inheritance absent an award of survivor damages.” Without such an heir, “there is no one left who can say that they will receive a smaller inheritance—that they would suffer a ‘pecuniary loss’—if [the] claim for survivor damages is terminated.”
What an incredibly harsh result, right? Indeed, wouldn’t this result just lead defendants to drag out some litigation in the hopes that the survivor(s) might pass away before the case ends? The court of appeals didn’t think so, at least not exactly:
[The] Estate also asserts that our holding will give wrongful-death defendants an incentive to “continue and delay cases as long as possible with the hopes that the statutory beneficiary will die.” But that is true only if the statutory beneficiary has no heirs—as established in Bemenderfer, an heir of a statutory beneficiary can pursue that beneficiary's claim for survivor damages even if the beneficiary dies while the claim is still pending. Moreover, a statutory beneficiary can usually avoid having no heirs. Here, David could have created heirs-and kept the Providers on the hook for survivor damages-simply by executing a will. He didn’t, so he has no heirs, and any survivor damages would pass to the state. That would be contrary to the compensatory purpose of the wrongful-death statute. Therefore, we affirm the trial court’s grant of the Providers’ motion for partial summary judgment.
There you have it. If you have a client who has no natural heirs under intestate succession, make sure that client has a will naming an heir. Otherwise, the hopefully rare circumstance of Horeis may play out again.
Join us again next time for further discussion of developments in the law.
- Horejs v. Milford, ---N.E.3d---, No. 45A03-1709-CT-2173, 2018 Ind. App. LEXIS 208 (Ind. Ct. App. June 14, 2018) (Vaidik, C.J.).
- Bemenderfer v. Williams, 745 N.E.2d 212 (Ind. 2001) (Boehm, J.).
- Indiana General Wrongful Death Statute, codified at Ind. Code § 34–23–1–1.
- Indiana Adult Wrongful Death Statute, codified at Ind. Code § 34–23–1–2.
- Indiana Child Wrongful Death Statute, codified at Ind. Code §§ 34–23–2–1.
- Court of Appeals Holds Indiana Child Wrongful Death Statute Permits Award of Attorney Fees and Costs, Hoosier Litig. Blog(June 23, 2017).
*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.