ATTORNEY FOR APPELLANT
Scott A. Benkie
INDIANA TRIAL LAWYERS ASSOCIATION
ATTORNEYS FOR APPELLEE
Michael C. Peek
Rodney V. Taylor
Geoffrey L. Blazi
Stephen R. Pennell
DEFENSE TRIAL COUNSEL OF INDIANA
James D. Johnson
Angela L. Freel
SUPREME COURT OF INDIANA
BARRY DURHAM and BILL WADE, )
on behalf of the ESTATE OF KATHY )
WADE, and BARRY DURHAM as )
natural guardian for AMY DURHAM )
and JASON DURHAM, and BILL )
WADE, individually, ) Indiana Supreme Court
) Cause No. 49S02-0005-CV-294
Appellants/Cross Appellees )
(Plaintiffs Below), )
) Indiana Court of Appeals
v. ) Cause No. 49A02-9811-CV-940
U-HAUL INTERNATIONAL et al., )
Appellees/Cross Appellants )
(Defendants Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard H. Huston, Judge
Cause No. 49D10-9704-CT-0504
ON PETITION FOR TRANSFER
April 10, 2001
We adhere to precedent that punitive damages are not recoverable in an action
brought under the wrongful death statute. We also hold that the wrongful
death statute provides the only remedy against a person causing the death of
a spouse and there is no independent claim against this person for loss
of consortium. Finally, we hold that loss of consortium damages against a
person causing the death of a spouse are not cut off by the
death of that spouse. Rather, they are to be measured by the
life expectancy of the deceased spouse or the surviving spouse, whichever is shorter.
Factual and Procedural Background
On June 8, 1995, Kathy Wade and Francis J. Radwan, Jr. were traveling
eastbound on I-74 in a construction zone divided by a barrier. A
U-Haul truck and trailer behind them was unable to stop in response to
the slowed traffic, swerved, and struck them in the right rear side.
Their car was sent careening across the barrier into the path of an
oncoming truck. Radwan was killed instantly and Kathy died within minutes.
A State Police report of the accident concluded the brake rotors on the
U-Haul were rusted and the truck had no brake fluid, with the result
that the U-Haul was unable to brake during or prior to the impact.
No other defects were identified.
Barry Durham is the father of Kathys two children. Bill Wade was
Kathys husband at the time of her death. Durham and Wade were
appointed co-executors of Kathys estate, and joined as plaintiffs in a wrongful death
suit against U-Haul, the State of Indiana, and various highway construction firms.
Durham sued on behalf of Kathys estate and as guardian of the children.
Wade sued on behalf of Kathys estate, and also asserted his own
claim for loss of consortium. Both plaintiffs sought punitive damages.
Several defendants moved for partial summary judgment on the issues of punitive damages
and Wades loss of consortium claim. The motions contended that no punitive
damages are recoverable under the wrongful death statute and that Wade is limited
to a wrongful death claim and may not pursue a separate loss of
consortium claim for Kathys death. The trial court held that (1) Wades
loss of consortium claim could proceed, including a claim for punitive damages; and
(2) punitive damages were not recoverable under the wrongful death statute. The
Court of Appeals affirmed the holding that a consortium claim could be asserted
but reversed the grant of summary judgment on the issue of punitive damages.
The court held that principles of statutory construction, case law, and policy
support recovery of punitive damages in a wrongful death claim.
U-Haul Intl, 722 N.E.2d 355 (Ind. Ct. App. 2000).
Three issues are presented: (1) whether Indianas wrongful death statute allows recovery
of punitive damages; (2) if not, whether this violates the federal or state
constitution; and (3) may a surviving spouse bring an independent loss of consortium
claim for punitive damages or is the surviving spouse restricted to loss of
consortium damages under the wrongful death statute.
Standard of Review
On appeal, the standard of review of a summary judgment motion is the
same as that used in the trial court: summary judgment is appropriate only
where the evidence shows that there is no genuine issue of material fact
and that the moving party is entitled to a judgment as a matter
of law. Ind.Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705
N.E.2d 981, 983-84 (Ind. 1998). All facts and reasonable inferences drawn from
those facts are construed in favor of the non-moving party. Shell Oil,
705 N.E.2d at 983-84. The review of a summary judgment motion is
limited to those materials designated to the trial court. T.R. 56(H); Rosi
v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993).
I. The Wrongful Death Statute and Punitive Damages
The plaintiffs advance a number of policy considerations supporting their claim that punitive
damages should be allowed under Indianas wrongful death statute. The defendants respond that
the issue is one of statutory interpretation and, because it is well settled
that punitive damages are not recoverable under the wrongful death statute, any change
in the law is a decision for the legislature, not this Court.
The Court of Appeals undertook a statutory analysis, examined precedent holding that punitive
damages are barred, and concluded that despite concerns as to both, public policy
advised in favor of allowing punitive damages in the wrongful death action.
At common law, a cause of action was extinguished by the death of
the plaintiff. Because the victim was viewed as the only person wronged
by a negligent killing, even a defendant whose negligence caused the plaintiffs death
was insulated from liability. This inequity gave rise to wrongful death statutes,
first in England in 1846, and soon thereafter in every United States jurisdiction.
Durham, 722 N.E.2d at 357-58; accord In re Estate of Pickens v.
Pickens, 255 Ind. 119, 125-26, 263 N.E.2d 151, 155 (1970). The wrongful
death action is entirely a creature of statute. Northern Indiana Power Co.
v. West, 218 Ind. 321, 329, 32 N.E.2d 713, 716-17 (1941), overruled on
other grounds by State v. Larues, Inc., 239 Ind. 56, 154 N.E.2d 708
(1958). Indianas statute was first adopted in 1852, 2 G. & H.
330, sections 782-84 (1870), then again in 1881, Laws of the State of
Indiana, ch. 38, sections 6-29 (1881). It has since been amended on
nine different occasions, most recently in 1998. Ind.Code § 34-23-1-1 (1998).
In all of its different versions, the general wrongful death statute has never
specifically addressed punitive damages. In contrast, the 1999 statute dealing with the
wrongful death of unmarried adults with no dependents explicitly bars punitive damages.
Id. § 34-23-1-2 (Supp. 2000). A third statutory treatment of this issue
is found in the 1987 child wrongful death statute, which provides a list
of recoverable damages that does not include punitive damages. Id. § 34-23-2-1
Plaintiffs contend that, although the wrongful death action is a creature of statute,
the disallowance of punitive damages is a judicially engrafted rule that can be
judicially removed. They cite to Chief Justice Shepards concurrence in
Mayberry, 506 N.E.2d 7, 12 (Ind. 1987) (Shepard, C.J., concurring in result), superseded
by Ind.Code § 34-1-1-8 (1987), in which he disagreed with the majoritys view
that separation of powers concerns prohibit the judiciary from changing its interpretation of
a statute. Plaintiffs also insist that Lindley v. Sink, 218 Ind. 1,
30 N.E.2d 456 (1940), has been mistakenly cited for the proposition that punitive
damages are prohibited under the wrongful death statute. They point out that
Lindley turned on the unrelated issue of whether the contributory negligence of one
beneficiary precludes recovery by all of the beneficiaries. 218 Ind. at 11-12,
30 N.E.2d at 460. Plaintiffs contend that reliance of subsequent cases on
Lindley is also misplaced.
The goal of statutory construction is to determine and give effect to the
intent of the legislature.
Sales v. State, 723 N.E.2d 416, 419-20 (Ind.
2000); accord Collier v. Collier, 702 N.E.2d 351, 354 (Ind. 1998); Sullivan v.
Day, 681 N.E.2d 713, 717 (Ind. 1997). We agree that there is
no constitutional bar to revisiting judicial authority interpreting a statute. But if
a line of decisions of this Court has given a statute the same
construction and the legislature has not sought to change the relevant parts of
the legislation, the usual reasons supporting adherence to precedent are reinforced by the
strong probability that the courts have correctly interpreted the will of the legislature.
Heffner v. White, 221 Ind. 315, 318-19, 47 N.E.2d 964, 965 (1943)
([S]uch construction should not then be disregarded or lightly treated.); accord Loeb v.
Mathis, 37 Ind. 306, 312 (1872). Finally, because the wrongful death statute
is in derogation of the common law, it is to be construed strictly
against the expansion of liability. Ed Wiersma Trucking Co. v. Pfaff, 643
N.E.2d 909, 911 (Ind. Ct. App. 1994).
Plaintiffs argue, and the Court of Appeals agreed, that it is significant that
the legislature, in all its amendments to the general wrongful death statute, has
never explicitly excluded punitive damages, even though it has expressly provided that punitive
damages are not recoverable under the unmarried adult with no dependents statute and
provided a list of recoverable elements of damages under the child wrongful death
statute. I.C. §§ 34-23-1-2, -2-1. Plaintiffs also note the language of
the statute itself, which leaves open-ended what damages are recoverable under the statute:
[D]amages shall be in such an amount as may be determined by the
court or jury, including, but not limited to, reasonable medical, hospital, funeral and
burial expenses, and lost earnings of such deceased person resulting from said wrongful
act or omission.
Id. § 34-23-1-1 (1998). This language, according to
plaintiffs, leaves this Court free to allow punitive damages.
Although the general wrongful death statute does not mention punitive damages, the legislature
has made some changes to the wrongful death legislation that are noteworthy.
As the Court of Appeals pointed out, in 1987, the legislature changed the
child wrongful death statute to explicitly allow recovery for loss of services and
loss of companionship and affection. At the same time, the legislature added
a list of recoverable elements that does not include punitive damages.
722 N.E.2d at 358, 363. This was done only a few months
after this Courts decision in Mayberry, which held that a damage award for
loss of love and affection in a child wrongful death action violated the
pecuniary damage rule, 506 N.E.2d at 11. This change was also close
on the heels of the Court of Appeals holding that neither punitive damages
nor recovery for love and affection for the death of a child was
a compensable element of recovery under the statute. Andis v. Hawkins, 489
N.E.2d 78 (Ind. Ct. App. 1986), trans. denied. Although, as the dissent
points out, this was not a decision of the Supreme Court, that decision
preceded the 1988 constitutional amendment that substantially freed this Court to address civil
law issues. By the end of World War II, and continuing through
1988, this Court had been virtually precluded from entertaining civil litigation. At
that time, the Court of Appeals sat in fixed panels of three judges
for each of three geographical districts. As a practical matter, Court of
Appeals decisions were regarded as likely to be the last word on the
subject, at least for the district.
We do not think it likely
that the 1987 legislature was unaware of the Court of Appeals ruling, or
regarded it as insignificant.
The Court of Appeals opinion in this case
cites the 1987 amendment to
the wrongful death statute as support for the proposition that the legislature has
rejected the pecuniary damage rule, that is, the notion that only strictly pecuniary
losses are recoverable under the wrongful death statute. We think the lesson
of the 1987 legislation is rather that the legislature can act swiftly if
our interpretation of its statute is incorrect. In contrast to its elimination
of the prohibition against recovery for a childs love and companionship, the legislature
has never responded to the courts pronouncements on the punitive damages issue.
This legislative silence is in the face of a number of decisions that
have construed the general wrongful death statute to preclude punitive damages. See
Kuba v. Ristow Trucking Co., 508 N.E.2d 1, 2-3 (Ind. 1987) (The confines
and limitations inherent in a statutorily based wrongful death action do not permit
a claim for treble damages.); Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d
1045, 1056-57 (Ind. Ct. App. 1990) (punitive damages are not recoverable in wrongful
death action) (citing Andis, 489 N.E.2d at 82-83); accord Huff v. White Motor
Corp., 609 F.2d 286, 297 (7th Cir. 1979) (punitive damages are not allowed
where purpose of statute remains compensatory).
When it disagrees with judicial rulings, the legislature can act. It amended
the statute to allow the loss of love and companionship of a child
to be a compensable element of damages under the child wrongful death statute.
This is consistent with Indianas longstanding pecuniary loss rule. In
v. Conrail, Inc., 887 F. Supp. 1148, 1154-55 (N.D. Ind. 1995), the court
interpreted Indiana case law since the 1987 amendment and concluded that Indiana continues
to adhere to the pecuniary loss rule, despite inclusion of loss of services
and loss of love and companionship. Loss of love and companionship are
often included among pecuniary damages, even if they are not pecuniary in the
strict sense of the word. 22A Am. Jur. 2d Death § 225
(1988) (where damages are limited to pecuniary losses, recovery for loss of comfort
and society are not prevented). As discussed later, in Indiana the pecuniary
damage rule has also not precluded recovery of intangible loss of consortium damages
under the wrongful death statute.
Failure to address punitive damages cannot be attributed to legislative indifference to the
wrongful death statute. The legislature has amended the wrongful death statute approximately
once a decade since the 1930s.
But despite these many other changes
to the Act, the legislature has never amended it to address explicitly the
availability of punitive damages. We can only conclude that the legislature is
content with the consistent line of cases finding punitive damages unavailable. Finally,
where the legislature has explicitly spoken to this issue in other contexts, its
attitude is hostile to punitive damages, either prohibiting them or setting forth an
exhaustive list of recoverable items that does not include punitive damages.
The net effect of the Court of Appeals decision is to disregard a
long line of case law finding the purpose of the wrongful death statute
to be compensatory, and concluding that punitive damages are therefore not recoverable.
This doctrine is first found in
Louisville, New Albany, & Chicago Railway Co.
v. Goodykoontz, 119 Ind. 111, 113 (1888), where this Court stated that the
wrongful death action is intended to afford compensation for those who have sustained
pecuniary loss by the death, and not for the benefit of the decedents
estate. Id.; accord Pickens, 255 Ind. at 126, 263 N.E.2d at 155
(The purpose of the statute then is to create a cause of action
to provide a means by which those who have sustained a loss by
reason of the death may be compensated.). At the time these cases
were decided, punitive damages were rarely sought. These early statements may therefore
not reflect considered rejection of the availability of noncompensatory damages under the wrongful
death act. However, the reaffirmation of that notion in more recent cases,
coupled with the legislative history already described, is persuasive that the issue has
been considered in modern times and resolved against the plaintiffs position.
The Court of Appeals examined Indianas view of punitive damages and concluded that
Indiana is increasingly receptive to imposing exemplary damages and that Indiana no longer
uses exemplary damages solely for punishment or retribution.
Durham, 722 N.E.2d at
362. Rather, Indiana has come to realize that exemplary damages also serve
a deterrent effect. In support of the courts first proposition, it noted
that the legislature has expanded the treble damages statute to cover an increasing
number of contexts. In support of the latter proposition, the court cited
a recent Court of Appeals opinion that was adopted on transfer. Bell
v. Clark, 653 N.E.2d 483, 490-91 (Ind. Ct. App. 1995), adopted on transfer
by 670 N.E.2d 1290 (Ind. 1996).
We disagree with the Court of Appeals that there is an identifiable trend
in Indiana law in favor of expanding access to punitive damages. The
legislature has the power to enlarge the scope of punitive damages, including under
the wrongful death statute, but has seen fit to reduce the incentive to
seek punitive damages.
See I.C. §§ 34-23-1-1 to -1-2 & -2-1.
And in several instances the legislature has explicitly curtailed their availability altogether.
Id. § 25-6.1-8-4 (1998) (recovery from auctioneer fund may not include punitive damages
award); § 34-13-3-4 (Tort Claims Act bars punitive damages); § 34-23-1-2 (barring punitive
damages under unmarried adult with no dependent wrongful death statute). Nor is
the deterrent potential of punitive damages a novel consideration. To the contrary,
this Courts rationale for the imposition of punitive damages has long included deterrence
as a valid consideration. Indeed, over one hundred years ago, we observed
that: Exemplary or punitive damages, the terms exemplary and punitive being synonymous,
are damages allowed as a punishment, or by way of example, to deter
others from the like offences, for torts committed with accompanying fraud, malice, or
oppression. State ex. rel. Scobey v. Stevens, 103 Ind. 55, 59, 2
N.E. 214, 216 (1885); accord Husted v. McCloud, 450 N.E.2d 491, 495 (Ind.
1983); Art Hill Ford, Inc. v. Callender, 423 N.E.2d 601, 602 (Ind. 1981);
Indiana & Michigan Elec. Co. v. Stevenson, 173 Ind. App. 329, 341, 363
N.E.2d 1254, 1262 (1977).
The Court of Appeals took the view that its opinion in
be reexamined in light of a developing trend in other jurisdictions in favor
of allowing punitive damages in wrongful death actions. In Andis, the Court
of Appeals referred to the general rule that, in most states, punitive damages
are prohibited under the applicable wrongful death statute. 489 N.E.2d at 79-80.
The plaintiffs note that twenty-seven states now allow punitive damages in wrongful
death cases. However, in eleven of these states the wrongful death statute
expressly permits punitive damages. Thus, the majority of states in which the
statute is silent as to punitive damages (twenty-two out of thirty-eight) continue to
bar punitive damages. 1 Stuart M. Speiser et al., Recovery for Wrongful
Death and Injury § 3A:4 (3d ed. 1992). Finally, and most persuasively,
the plaintiffs argue that it runs contrary to public policy to allow punitive
damages in the ordinary personal injury case but not in the wrongful death
action. As plaintiffs put it, we cannot have a legal regime in
which it is cheaper to kill than to maim. It is obviously
correct that legal rules should not encourage or fail to deter fatalities.
But it is difficult if not impossible for a defendant to calculate what
the measure of damages will be in any given personal injury or wrongful
death case. Whether or not punitive damages are recoverable, injuring or causing
anothers death is no inexpensive matter and will result in very different damage
awards depending on variables over which a defendant has little or no control.
Finally, the plaintiffs argue that the statutory language leaves open the possibility of
punitive damages. As noted earlier, in 1965, the legislature amended the wrongful
death statute to include a list of recoverable damages, explicitly providing that its
list was nonexhaustive. The significance of this provision has been addressed and
resolved in prior cases.
Kuba, 508 N.E.2d at 2 (construing but not
limited to language as limited to damages evolv[ing] from a deprivation to a
survivor as a result of the death); accord Huff, 609 F.2d at 297.
Kuba thus took the view that although the legislature left open the
statute to allow for other damages, these damages must be compensatory. Huff
pointed out the unlikelihood that in 1965 the legislature intended to alter the
statute to provide for the possibility of punitive damages. Id.
We have no quarrel with the result reached by the Court of Appeals
as a matter of policy. If we were writing on a clean
slate we would find the Court of Appeals analysis persuasive. However, where
the legislature has spoken, we believe policy setting on an issue such as
this is for the elected branch of government. If the legislature disagrees
with this longstanding interpretation of the statute, it can correct it. In
the meantime, despite any resulting unfairness, punitive damages are not recoverable under the
wrongful death statute.
II. Equal Protection
Plaintiffs assert that allowing punitive damages to personal injury plaintiffs but not to
wrongful death plaintiffs violates the equal protection clauses of the United States and
Indiana Constitutions. They do not identify the source of equal protection under
the Indiana Constitution, nor do they identify any case law in support of
this proposition. Specifically, they advance no argument based on Collins v. Day,
644 N.E.2d 72 (Ind. 1994), and its progeny addressing Article I, section 23
of the Indiana Constitution. Rather, they merely contend that prohibiting their recovery
of punitive damages is not rationally related to a legitimate state objective.
Because they do not present independent analysis of the Indiana Constitution, their equal
protection argument is governed by federal law. Because no suspect class is
involved here, the Fourteenth Amendment requires only that the legislative classification be rationally
related to a legitimate government interest. See Clark v. Jeter, 486 U.S.
456, 461 (1988).
This Court has long considered the wrongful death statute to exist for the
primary purpose of compensating those harmed by the wrongful death of another.
E.g., In re Estate of Pickens v. Pickens, 255 Ind. 119, 125-26, 263
N.E.2d 151, 156 (1970). Barring punitive damages in the case of a
wrongful death is consistent with the goal of the wrongful death statute, which
is to compensate survivors of the wrongful death victim rather than to punish
defendants. Punitive damages are simply one element of damages, little of which
ends up in the hands of the plaintiff. See Ind.Code §§
34-51-3-1 to -6 (1998) (requiring, among other things, that seventy-five percent of punitive
damages awards be placed in the victims compensation fund). Moreover, there is
no entitlement to punitive damages. Travelers Indem. Co. v. Armstrong, 442 N.E.2d
349, 362-63 (Ind. 1982) (It has never been implied that a plaintiff has
any entitlement to [punitive] damages. Rather, he is merely the fortunate recipient
of the windfall.). The wrongful death statute also reflects the reality
that the injuries to victims and beneficiaries are qualitatively different. In short,
we agree with the Seventh Circuit that the statute does not fail federal
equal protection analysis. Huff, 609 F.2d at 298 (Plaintiff has not persuaded
us that the adoption of [the wrongful death statute] without a provision authorizing
awards of punitive damages was irrational.).
III. Loss of Consortium
Wade urges that he should be able to pursue a loss of consortium
claim independently of the wrongful death action, even though his wifes death occurred
within a few minutes of the accident. Wade relies on Rogers v.
R.J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1057 (Ind. Ct. App. 1990), in
which the Court of Appeals concluded that a widow was entitled to recover
punitive damages on her separate loss of consortium claim. Wade urges that
a loss of consortium claim should be allowed irrespective of whether a spouse
is injured or dies instantaneously as a result of the defendants negligence because
to conclude otherwise creates an anomaly in the law. Wade also contends
that the independent common law loss of consortium claim permits elements of damages
different from those that may be awarded under the wrongful death statute.
The loss of consortium is seen as a route to avoid the bar
on punitive damages.
As already noted, at common law any cause of action a plaintiff had
against a defendant was extinguished by the plaintiffs death, even if the death
was caused by the defendant. In response, the wrongful death statute was
passed in 1852 and has since provided the sole remedy for the estate
and beneficiaries of a deceased plaintiff whose death was caused by the act
or omission of the defendant.
The loss of consortium claim has been described as a claim derivative of
the injured spouses personal injury claim.
Wine-Settergren v. Lamey, 716 N.E.2d 381,
390-91 (Ind. 1999); Mayhue v. Sparkman, 653 N.E.2d 1384, 1386-87 (Ind. 1995).
By this we mean that if the spouses cause of action for personal
injury fails, the loss of consortium claim falls with it. Wine-Settergren, 716
N.E.2d at 390-91 (spouse may not bring loss of consortium claim where injured
spouses claim is barred by Workers Compensation Statute). The reason for this
requirement is rarely stated, but we think it sound. See W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 125,
at 938-39 (5th ed. 1984) (Courts have commonly said that the consortium action
is derivative and must fall with the main claim, but as they could
as well have said that it was independent, this sounds more like a
conclusion than a reason . . . .). If a spouses case
survived in a claim that would be barred if brought by the injured
person, a number of legislative policy calls would be circumvented. A claim
covered by workers compensation would still be brought as a personal injury claim
by the workers spouse despite the policy of the statute to foreclose litigation
over fault in accidents in the workplace. Cf. Wine-Settergren, 716 N.E.2d at
390-91. Similarly, the wrongful death statutes limitation on punitive damages would be
circumvented. Both of these issues are fairly debatable, but because we believe
the legislature has resolved the policy calls on these points we adhere to
Most states continue to adhere to the rule that common law recovery for
loss of consortium damages is limited to the period between the spouses injury
and the spouses death.
T & M Investments, Inc. v. Jackson, 425
S.E.2d 300, 304 (Ga. Ct. App. 1992); Clark v. Hauck Mfg. Co., 910
S.W.2d 247, 252 (Ky. 1995); Archie v. Hampton, 287 A.2d 622, 625 (N.H.
1972); Liff v. Schildkrout, 404 N.E.2d 1288, 1291-92 (N.Y. 1980); Rinke v. Johns-Manville
Corp., 734 P.2d 533, 535 n.1 (Wash. Ct. App. 1987); Restatement (Second) of
Torts § 693 cmt. f (1977). This is not to say, however,
that because a surviving spouse may not maintain an independent claim for loss
of post-death consortium, the spouse cannot recover for loss of consortium damages.
In many states, wrongful death statutes explicitly provide for loss of consortium damages.
E.g., Iowa Code § 613.15 (1999); Mo. Rev. Stat. § 537.090 (2000).
We agree that loss of consortium is a proper element of damages in
a wrongful death action for the death of a spouse. To the
extent that our prior case law, most notably
Burk v. Anderson, 232 Ind.
77, 81, 109 N.E.2d 407, 408-09 (1952), holds that no loss of consortium
damages are recoverable in a wrongful death action for periods after the spouses
death, it is overruled. Although Indiana has no explicit provision in the
general wrongful death statute allowing loss of consortium damages, that item of damages
has long been recoverable under the wrongful death statute. Dearborn Fabricating &
Engg Corp. v. Wickham, 551 N.E.2d 1135, 1138 (Ind. 1990) (noting that under
general wrongful death statute recovery is allowed for loss of care, love, and
affection sustained by a decedents spouse); Andis v. Hawkins, 489 N.E.2d 78, 82
(Ind. Ct. App. 1986), trans. denied (pecuniary loss includes the reasonable expectation of
pecuniary benefit from the continued life of the deceased, to be inferred from
proof of assistance by way of money, services, or other material benefits rendered
by the deceased prior to his death) (citing Lustick v. Hall, 403 N.E.2d
1128, 1131 (Ind. Ct. App. 1980), trans. denied); Dunkelbarger Const. Co. v. Watts,
488 N.E.2d 355, 359 (Ind. Ct. App. 1986) (loss of care, love, and
affection are compensable as pecuniary damages); Richmond Gas Corp. v. Reeves, 158 Ind.
App. 338, 369-70, 302 N.E.2d 795, 815-16 (1973) (concluding in wrongful death case
that jury may consider intangible losses such as love and affection).
As these cases suggest, consortium has been defined to include both tangible and
intangible elements. In addition to the provision of material services, consortium includes
both conjugal and other elements of companionship. Various terms have been
employed to describe the elements of companionship, including service, aid, fellowship, companionship, company,
cooperation, and comfort. 41 Am. Jur. 2d
Husband and Wife § 7
(1995). Indiana courts have likewise defined consortium to include both material services,
i.e., calculable and monetary damages, as well as love, care, and affection.
Troue v. Marker, 252 N.E.2d 800, 804-05 (Ind. 1969) (spouse is entitled to
recover intangible losses and monetary losses, including for transportation formerly provided by deceased
spouse); Planned Parenthood, Inc. v. Vines, 543 N.E.2d 654, 657 (Ind. Ct. App.
1989) (consortium includes services, society, and sexual relationsthe rights and benefits one expects
upon entry into the marriage relationship); Gregg v. Gregg, 37 Ind. App. 210,
216-17, 75 N.E. 674, 675-76 (1905) (holding, in alienation of affections case, that
pecuniary loss is not a prerequisite for recovery on a consortium claim); Adam
v. Main, 3 Ind. App. 232, 234-35, 29 N.E. 792, 793-94 (1892) (same).
Wade has urged that traditional loss of consortium damages vary from loss of
consortium damages under the wrongful death statute, but points to no significant distinction
between the two. On the contrary, these cases illustrate that both material
services as well as loss of love, care, and affection are recoverable elements
under the wrongful death statute. Wade cites to cases in support of
the proposition that loss of consortium damages continue independently of a wrongful death
action upon the death of a spouse. However, in all of these
cases, the spouse was incapacitated or ill for a significant period of time
Cahoon v. Cummings, 734 N.E.2d 535, 538 (Ind. 2000); Mayhue,
653 N.E.2d at 1385-86; R.J. Reynolds, 557 N.E.2d at 1045. Thus, this
Court has never directly considered the issue presented by this case. Wade
also cites Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 972 (7th Cir.
1983), in which Judge Posner stated in a parenthetical: You cannot claim
loss of consortium for a period after your spouses death unless the defendants
culpable acts accelerated his death, and there is no suggestion that the accident
reduced [plaintiffs] life expectancy. This observation is consistent with our understanding of
loss of consortium damages in Indiana. Loss of consortium damages do not
continue beyond the death of the spouse unless the defendant is responsible for
the death. The derivative loss of consortium claim is extinguished with the
death of the spouses personal injury claim against the person causing the death.
However, loss of consortium damages may be recovered under the wrongful death
statute, if the defendants negligence caused or accelerated the death of the other
Wade seeks to bring a separate loss of consortium claim in order to
recover punitive damages.
See, e.g., R.J. Reynolds, 557 N.E.2d at 1057.
However, as we reaffirm today, punitive damages are not recoverable in a wrongful
death action. Here, because the deceased spouses claim is governed by the
wrongful death statute and is barred as a common law claim, the wrongful
death statute also governs the surviving spouses claim. Thus, even though Wade
may recover loss of consortium damages for his life-expectancy or Kathys, whichever is
shorter, he is restricted to compensation under the wrongful death act and is
not independently entitled to punitive damages based upon a loss of consortium claim.
We reverse in part, affirm in part, and remand for proceedings consistent with
SHEPARD, C.J., and SULLIVAN, J., concur.
RUCKER, J., dissents with separate opinion in which DICKSON, J. concurs.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SCOTT A. BENKIE MICHAEL C. PEEK
Indianapolis, Indiana RODNEY V. TAYLOR
AMICUS CURIAE INDIANA TRIAL
LAWYERS ASSOCIATION: GEOFFREY L. BLAZI
STEPHEN R. PENNELL
JERRY GARAU Lafayette, Indiana
AMICUS CURIAE DEFENSE TRIAL
COUNSEL OF INDIANA:
JAMES D. JOHNSON
ANGELA L. FREEL
SUPREME COURT OF INDIANA
BARRY DURHAM and BILL WADE, on )
behalf of the ESTATE OF KATHY WADE, )
and BARRY DURHAM as natural guardian )
for AMY DURHAM and JASON DURHAM, ) Supreme Court Cause Number
and BILL WADE, Individually, ) 49S02-0005-CV-294
v. ) Court of Appeals Cause Number
U-HAUL INTERNATIONAL et al., )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard H. Huston, Judge
Cause No. 49D10-9704-CT-504
ON PETITION TO TRANSFER
April 10, 2001
RUCKER, Justice, dissenting
In a well-reasoned and persuasive opinion the Court of Appeals concluded that the
general wrongful death statute could reasonably be interpreted as allowing punitive damages. I
agree and therefore respectfully dissent from the majoritys opinion in this case.
One of the more difficult challenges of a reviewing court is discerning legislative
intent when examining a statute. We have said that when examining a
statute it is not our prerogative to engraft upon it a meaning the
court determines to be wise or desirable. Walton v. State, 272 Ind.
398, 402, 398 N.E.2d 667, 670 (1980). Rather, we must attempt to
determine what the legislative body intended when the statute was enacted. To
facilitate this obligation courts have developed a number of rules on statutory construction,
all of which are designed to give deference to the intent of the
legislature. Concluding the legislature did not intend the general wrongful death statute
to permit punitive damages, the majority has seized on two such constructions:
(1) strict construction of statutes in derogation of the common law; and (2)
legislative acquiescence. In my view the majoritys conclusion cannot be sustained on
The rule of strict construction requires the court to presume that the legislature
did not intend to make any change in the common law beyond those
declared either in express terms or by unmistakable implication. South Bend Comm.
Schs. Corp. v. Widawski, 622 N.E.2d 160, 162 (Ind. 1993). Because actions
for wrongful death did not exist at common law, it has been held
that the wrongful death statute should be construed strictly against the expansion of
liability. Thomas v. Eads, 400 N.E.2d 778, 780 (Ind. Ct. App. 1980).
I have no quarrel with this general proposition. In my view,
however, its application by the majority is misplaced here. That is so
because for over a century the allowance of punitive damages has been a
part of the common law of this State. See, e.g., Citizens St.
R.R. Co. of Indianapolis v. Willoeby, 134 Ind. 563, 33 N.E. 627 (1893);
Louisville, New Albany & Chi. Ry. Co. v. Wolfe, 128 Ind. 347, 27
N.E. 606 (1890); Humphries v. Johnson, 20 Ind. 190 (1863). We must
therefore presume that by enacting the wrongful death statute, the legislature did not
intend to make any change in the common law with respect to punitive
damages beyond those declared either in express terms or by unmistakable implication.
South Bend, 622 N.E.2d at 162.
In this case, not only does the statute exclude any reference to punitive
damages, but also it declares damages shall be in such an amount as
may be determined by the court or jury,
including, but not limited to,
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
(1998) (emphasis added). This language simply does not support the notion that
through express terms or unmistakable implication the legislature intended to wipe away an
element of damage that has been in existence for a hundred plus years.
I find support for this conclusion by comparing Indianas two other wrongful death
statutes. The statute governing the wrongful death of children contains an exclusive
list of damages recoverable by the childs parents or guardians. Ind. Code
§ 34-23-2-1(e). Because punitive damages are not a part of that list,
it is clear by unmistakable implication that they are not recoverable. Nor
are punitive damages recoverable under Indianas newest wrongful death statute that allows death
actions on behalf of non-dependent survivors of unmarried adults. Ind. Code §
34-23-1-2(c)(2)(B). Under this statute punitive damages are precluded in express terms.
Id. As with the other two statutes, when enacting the 1998 version
of Indiana Code § 34-23-1-1, the legislature could very easily have revised it
to exclude punitive damages either by express terms or unmistakable implication. It
declined to do so. I am convinced therefore that the legislature
did not intend to make any change in the common law where punitive
damages are concerned. Indeed the argument that the legislature and not the
courts should allow punitive damages in wrongful death cases is answered by the
fact that courts, as a part of the common law, created the rule
that punitive damages are not allowed in wrongful death cases. The authority
to change the common law rests squarely with the courts.
As for legislative acquiescence, the doctrine provides that the failure of the legislature
to change a statute after
a line of decisions of a court of
last resort giving the statute a certain construction amounts to an acquiescence by
the legislature in the construction of the court and that such construction should
not then be disregarded or lightly treated. Heffner v. White, 221 Ind.
315, 318-19, 47 N.E.2d 964, 965 (1943) (emphasis added). See also Miller
v. Mayberry, 506 N.E.2d 7, 11 (Ind. 1987); Foster v. Evergreen Healthcare, Inc.,
716 N.E.2d 19, 28 (Ind. Ct. App. 1999), trans. denied. There has
not been a line of decisions by this Courta court of last resortconstruing
the question of whether punitive damages are recoverable under the general wrongful death
statute. Rather, there has been only a single case before this Court
that arguably touches on the subject, namely: Estate of Kuba v. Ristow
Trucking Co., Inc., 508 N.E.2d 1 (Ind. 1987). However, in that case
the issue presented was whether a plaintiff in a wrongful death action could
recover treble damages under the statute that authorized victims of certain crimes to
bring a civil action seeking treble damages. Id. Nonetheless, even assuming
Kuba unequivocally stands for the proposition that punitive damages are not recoverable in
an action for wrongful death, it is still but a single decision from
this Court on the subject.
In sum, the majoritys opinion today cannot be sustained on the grounds it
asserts, namely: strict construction and legislative acquiescence. Rather, it can best be
understood as an application of the doctrine of
stare decisis. Under this
doctrine the court adheres to a principle of law that has been firmly
established. This is so because important policy considerations weigh in favor of
continuity and predictability in the law. In re Sandy Ridge Oil Co.,
Inc., 510 N.E.2d 667, 670 (Ind. 1987). Precedent serves as a maxim
for judicial restraint to prevent unjustified reversal of a series of decisions merely
because the composition of the court has changed. Id. However, the
common law of today is not a frozen mold of ancient ideas, but
such law is active and dynamic and thus changes with the times and
growth of society to meet its needs. Perkins v. State, 252 Ind.
549, 554, 251 N.E.2d 30, 33 (1969), overruled on other grounds by State
v. Rendleman, 603 N.E.2d 1333 (Ind. 1992). It has never been the
policy of this Court to close its eyes to change or to disregard
reality. When this Court has recognized that the legal and social underpinnings
of a common law rule have evaporated, we have not refused to abolish
or alter the rule. Boland v. Greer, 422 N.E.2d 1236, 1239 (Ind.
1981) (Hunter, J., dissenting to denial of transfer) (citing Brooks v. Robinson, 259
Ind. 16, 284 N.E.2d 794 (1972) (doctrine of interspousal immunity abolished as based
on outmoded legal theories); Troue v. Marker, 253 Ind. 284, 252 N.E.2d 800
(1969) (prohibition of wifes recovery for loss of consortium abrogated on basis of
changes in the legal and social status of women); Perkins, 252 Ind. at
557-58, 251 N.E.2d at 35 (sovereign immunity abolished in face of changing role
of government and development of insurance)). As this Court has done on
other appropriate occasions, this too is an appropriate occasion to depart from the
doctrine of stare decisis. As the Court of Appeals observed in this
[I]t is illogical to allow punitive damages in personal injury actions but not
in wrongful death actions. We cannot perpetuate the adage that it is
cheaper to kill than to maim with regard to general wrongful death actions.
Durham v. U-Haul Intl, 722 N.E.2d 355, 363 (Ind. Ct. App. 2000).
In conclusion, a fair reading of the general wrongful death statute supports an
interpretation that would allow punitive damages to the same extent that punitive damages
are recoverable in personal injury actions. To the extent prior case authority
holds otherwise, it should be overruled. I therefore respectfully dissent.
DICKSON, J., concurs.
The child wrongful death statute provides:
(e) In an action to recover for the death of a child, the
plaintiff may recover damages:
(1) for the loss of the childs services;
(2) for the loss of the childs love and companionship; and
(3) to pay the expenses of:
(A) health care and hospitalization necessitated by the wrongful act or omission that
caused the childs death;
(B) the childs funeral and burial;
(C) the reasonable expense of psychiatric and psychological counseling incurred by a surviving
parent or minor sibling of the child that is required because of the
death of the child;
(D) uninsured debts of the child, including debts for which a parent is
obligated on behalf of the child; and
(E) the administration of the childs estate, including reasonable attorneys fees.
I.C. § 34-23-2-1.
The 1851 Constitution created the Supreme Court, circuit courts, and gave the
legislature the power to create other inferior courts. Ind. Const. art. VII,
§ 1 (1851). The legislature created the Court of Appeals in 1891,
1891 Ind. Acts ch. 37, § 1, but this Court continued to exercise
exclusive jurisdiction over non-misdemeanor criminal cases until 1970. In that year, the
constitution was amended to require all criminal appeals of convictions carrying a penalty
of more than ten-years imprisonment to be appealed directly to this Court.
All others could be reviewed by the Court of Appeals. Ind. Const.
art. VII, § 4, § 6 (1970). This amendment does not appear
to have eased the criminal caseload of the Court greatly, if at all.
In 1968, the Courts docket was nearly two-thirds criminal, compared to nearly
three-quarters criminal in 1972. The Courts civil docket from 1968 and 1972
consisted of an array of civil direct appeals, including appeals from interlocutory orders,
grants or denials of preliminary injunctive relief, and condemnation proceedings, just to name
a few. In 1968, only eighteen of the Courts 239 opinions were
civil transfer cases. Similarly, in 1972, only thirteen of the 218 written
opinions arrived at this Court by way of the Court of Appeals.
The situation was further exacerbated in 1976, when the legislature amended the criminal
code and increased the number of crimes for which the penalty exceeded ten
years imprisonment. In 1988, a constitutional amendment permitted all criminal appeals involving
a penalty of less than fifty years to go to the Court of
Appeals. Finally, in 2000, a constitutional amendment restricted the mandatory direct appeal
jurisdiction of this Court to death penalty cases. The rule implementing the
2000 amendment also provides for direct review by this Court of all life
without parole cases. For a review of this Courts increasing criminal docket
leading up to the 1988 amendment, see Randall T. Shepard, Changing the Constitutional
Jurisdiction of the Indiana Supreme Court: Letting a Court of Last Resort Act
Like One, 63 Ind. L.J. 669 (1987-88).
The general wrongful death statute, enacted in 1852 and again in 1881,
has been amended in 1899, 1933, 1937, 1949, 1951, 1957, 1965, 1982, and