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Indiana Wrongful Death Statutes: What are the Remedies?

      When a loved one is killed as a result of the negligence of another, Indiana law provides remedies to the survivors. In handling wrongful death claims, it is important to understand that the appropriate remedy and the recoverable damages in each case are dependent upon the status of the victim as well as the relationship to the persons he or she leaves behind.

        Indiana’s General Wrongful Death Act (GWDA) is found at Ind. Code 34-23-1-1. This statute was originally enacted in 1881 and has been revised on several occasions until it reached its current form in 1998. The GWDA provides in relevant part that “When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefore against the latter, if the former might have maintained an action had he or she...lived.” The recoverable damages under the GWDA include “reasonable medical, hospital, funeral and burial expenses and lost earnings of such deceased person resulting from said wrongful act or omission.” Ind. Code 34-23-1-1. In addition to the specific damages provided under the statute, Indiana courts have held that the surviving spouse, dependent children, and dependent next of kin may recover for the loss of love and affection of the decedent. Richmond Gas Corp. v. Reeves, 302 N.E.2d 795 (Ind. Ct. App. 1973).

               Damages for the medical, funeral and burial expenses inure to the exclusive benefit of the estate. However, the remainder of the damages inure to the surviving dependents only, to be distributed not by their individual loss of love and affection, but in the same manner as the personal property of the decedent. Attorney fees are not recoverable under the GWDA when the decedent dies with dependents. SCI Propane, LLC v. Frederick, 39 N.E.3d 675 (Ind. 2015).

         While the GWDA statute allows dependent family members of wrongful death victims to seek damages for loss of love and affection, the same could not always be said for non-dependent children and parents of those lost to the negligence of another. For years, Indiana law provided that the only damages recoverable for the death of unmarried adults with no dependents were for funeral, burial and medical expenses, and attorney fees for the administration of the Estate. However, in 1999, the legislature decided that family members of an adult with no dependents who dies as a result of another’s negligence should also receive damages for loss of love and companionship.

         Specifically, the Indiana Adult Wrongful Death Act (AWDA), Indiana Code 34-23-1-2 provides that “[I]f the death of an (unmarried) adult person is caused by the wrongful act or omission of another...the personal representative may maintain an action against” the negligent party. In doing so, the Estate may seek damages for “reasonable medical, hospital, funeral, and burial expenses” and for the “(l)oss of the adult person’s love and companionship” suffered by the non-dependent parent and children of the decedent.1 Further, the Estate may recover for attorney fees and expenses under the AWDA. McCabe v. Commissioner of Indiana Dept. of Insurance, 949 N.E.2d 816 (Ind. 2011).

         Just as in the GWDA, damages under the AWDA for medical, funeral, and burial expenses inure to the exclusive benefit of the estate. However, under the AWDA, damages for loss of love and companionship are determined by each survivor’s particular loss and distributed accordingly, rather than in the manner of personal property distribution as in the GWDA.

         While the legislature provided a remedy for the family members of those who die without dependents, it did so with limitations on the recoveries. Specifically, damages for the lost earnings of the deceased are not recoverable. Further, in order to recover for loss of love and companionship, a non-dependent adult or child must establish a “genuine, substantial, and ongoing relationship” with the deceased, and the total cumulative damage for collective loss of love and companionship is capped at $300,000.00.2         

         While claims for the wrongful death of adults must be pursued by the estate of the deceased, the same is not true for the death of a child. In fact, under the Indiana Child Wrongful Death Act (“CWDA”) Indiana Code 34-23-2-1, when an unmarried child less than twenty years of age or less than twenty- three years of age and enrolled in technical school or college dies, the action must be maintained by the parents, not by the child’s estate. For this reason, under most circumstances, the claim must be pursued by the parents jointly, or by either of them personally and by naming the other parent as a defendant to answer as to his or her interest.

         In claims involving the death of a child, parents may seek recovery for loss of the child’s services, love and companionship, health care expenses, funeral and burial expenses, uninsured debts of the child and the reasonable expense of counseling services required by the parents or minor siblings caused by the death of the child. Attorney fees are also recoverable under the CWDA. Angel Shores Mobile Home Park, Inc. v. Crays, 78 N.E.3d 718 (Ind.App. 2017). With regard to allocation of the recovery for loss of love and affection, the damages inure to the parents jointly if both parents had custody of the child. If the parents did not have joint custody of the child, the damages are apportioned to the parents according to their respective losses.

 

1Only parents and non-dependent children of the deceased may recover for loss of love and companionship under the AWDA.

2There is no corresponding cap on damages for loss of love and affection under the GWDA.  


BY:   TONY W. PATTERSON


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