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Horejs v. Milford

Court of Appeals of Indiana

June 14, 2018

James T. Horejs, James Harris, and Robert Horejs, as Co-Administrators of the Estate of Laura A. Shaner, Deceased, Appellants-Plaintiffs,
v.
Albert Milford, D.O., St. Margaret Mercy Healthcare Centers, Inc., and TRC-Indiana, LLC d/b/a Comprehensive Renal Care-Munster d/b/a DaVita, Inc., Appellees-Defendants

          Appeal from the Lake Superior Court No. 45D11-0711-CT-195 The Honorable Diane Kavadias Schneider, Judge

          ATTORNEYS FOR APPELLANTS Timothy S. Schafer Timothy S. Schafer, II Todd S. Schafer Schafer & Schafer Merrillville, Indiana

          ATTORNEYS FOR APPELLEE: ST. MARGARET MERCY HEALTHCARE CENTERS, INC. Libby Yin Goodknight Krieg DeVault LLP Indianapolis, Indiana Julie A. Rosenwinkel Shannon L. Noder Krieg DeVault LLP Merrillville, Indiana

          ATTORNEY FOR APPELLEE: ALBERT MILFORD, D.O. Jason A. Scheele Rothberg Logan & Warsco LLP Fort Wayne, Indiana

          ATTORNEYS FOR APPELLEE: TRC-INDIANA, LLC Leslie B. Pollie Travis W. Montgomery Kopka Pinkus Dolin PC Carmel, Indiana

          VAIDIK, CHIEF JUDGE.

         [¶1] Indiana's general wrongful-death statute, Indiana Code section 34-23-1-1, 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 is survived by a spouse, dependent children, or dependent next of kin, the decedent's personal representative can recover both the final-expense damages on behalf the decedent's estate and survivor damages, including lost earnings of the decedent, on behalf of the statutory beneficiary/ies.

         [¶2] This appeal presents the issue of 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"? Our Supreme Court addressed this question in Bemenderfer v. Williams, 745 N.E.2d 212 (Ind. 2001), where a man named Hoy Sturgeon survived his wife Dorothy and filed a wrongful-death action but then died himself before the action had concluded. The question was whether Hoy's claim for survivor damages could be carried on by the elderly couple's daughter, who, as Hoy's heir, stood to ultimately recover the damages. The Court held that she could.

         [¶3] Here, as in Bemenderfer, a husband filed a wrongful-death action after the death of his wife but then died himself while the action was still pending. However, there is one key difference-the husband died without any heirs, so that any survivor damages recovered on his behalf would ultimately pass ("escheat") to the state. We must decide whether the deceased husband's/beneficiary's claim for survivor damages can be carried on under these circumstances. We hold that it cannot.

         [¶4] The alleged wrongful-death decedent in this case is Laura Shaner, who died in January 2006. In November 2007, Laura's husband David, individually and on behalf of Laura's estate ("Laura's Estate" or "the Estate"), sued Dr. Albert Milford, St. Margaret Mercy Healthcare Centers, Inc., and TRC-Indiana, LLC d/b/a Comprehensive Renal Care-Munster d/b/a DaVita ("the Providers"). David alleged that the Providers had been negligent in their care of Laura and caused her death. His complaint included a claim for the following survivor damages under the wrongful-death statute:

loss of [Laura's] earnings and wages, loss of additional employment benefits which he enjoyed as a result of said [Laura's] employment, loss of the reasonable value of [Laura's] services, and further, the loss of love, affection, companionship, society and support as well as protection provided by [Laura] to [David].

Appellants' App. Vol. II p. 53.

         [¶5] While the case was still pending, David himself died, leaving no will and no heirs (David and Laura didn't have any children, and David's mother, who would have been his only heir, died at the same time as he did). Laura's Estate continued prosecuting the lawsuit relating to Laura's death, but David's death prompted the Providers to file a motion for partial summary judgment. They asserted that because David died without heirs, any survivor damages he would have received in relation to Laura's death (had he lived) would now instead pass to the state under Indiana Code section 29-1-2-1(d)(8), "would not compensate any party who suffered a pecuniary loss due to the death of Laura Shaner as contemplated under the Wrongful Death Statute, " and "would only serve as punishment to Defendants." Id. at 32-45. The Providers argued that Laura's Estate should not be able to recover such damages and should be limited to the final-expense damages outlined in the wrongful-death statute. The trial court granted the Providers' motion, and Laura's Estate appeals. We review motions for summary judgment de novo. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

         [¶6] Laura's Estate contends that it should be able to pursue David's survivor damages under our Supreme Court's decision in Bemenderfer. The Estate correctly notes that the Bemenderfer Court's stated holding was that "the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages." 745 N.E.2d at 215. The Estate argues that because this passage says nothing about the statutory beneficiary leaving an heir who would ultimately collect the beneficiary's survivor damages, it ...


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