ATTORNEYS FOR APPELLANT
Karl L. Mulvaney
Daniel R. Fagan
Candace L. Sage
ATTORNEYS FOR APPELLEES
Scott R. Severns
Thomas R. Ruge
Brian A. Statz
Dillier v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 34 Ind. App.
52, 57, 72 N.E. 271, 273 (1904). In Dillier, the deceaseds wife
survived him and commenced a wrongful death action, but died before verdict.
Although the wife had three surviving brothers, a jury concluded that his wife
was the only one dependent on him for support. The court concluded
that the wife was the only person statutorily entitled to recovery. Because
she was no longer living at judgment, there were no beneficiaries for whom
the wrongful death action could be maintained. Id. at 57, 72 N.E.
Several cases have since cited Dillier for the proposition that the surviving beneficiarys right to wrongful death damages abates if the beneficiary dies before verdict. Wabash R.R. Co. v. Gretzinger, 182 Ind. 155, 169, 104 N.E. 69, 75 (1914) ([A] cause of action under the statute . . . in favor of a sole beneficiary would not survive the death of such person.); Thomas v. Eads, 400 N.E.2d 778, 781 (Ind. Ct. App. 1980); Shipley v. Daly, 106 Ind. App. 443, 447-48, 20 N.E.2d 653, 655-56 (1939); Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Reed, 44 Ind. App. 635, 643-45, 88 N.E. 1080, 1082 (1909). Only one of these cases, Shipley, addressed the precise issue presented by this case and Dillier. In Shipley, as in Dillier, the Court of Appeals denied recovery on behalf of a surviving spouse who died before trial. 106 Ind. App. at 447-48, 20 N.E.2d at 655. The disposition of the other three cases did not turn on an analysis of Dilliers holding that a beneficiary must survive until judgment. See footnote
In 1891, the Court of Appeals held that under the survival statute the action of a father for the wrongful death of a child does not abate upon his death. Pennsylvania Co. v. Davis, 4 Ind. App. 51, 54-55 (1891). Davis dealt with the same sections of the survival statute that Dillier addressed, but nevertheless concluded that the executrix could continue the action. There is no significant distinction between the child wrongful death statute and the general wrongful death statute for these purposes. In Jeffersonville, Madison & Indianapolis Railroad Co. v. Hendricks, 41 Ind. 48, 75-76 (1872), this Court approved a jury instruction that provided: [T]he death of one or more of [the victims] children occurring after suit is brought, although such deceased children may have left children of their own, does not abate the suit . . . . The Court went on to explain that the action would abate if there were no surviving spouse, children, or next of kin, but that the shares of any deceased daughters would simply pass to their off-spring. Id. at 77. Thus, this Court appears to have assumed that the only requirement to take under the wrongful death statute is that the beneficiary survive the wrongful death. Given this conflict, we do not find a consistent body of decisional law that suggests legislative satisfaction with Dillier. In this respect, the courts handling of this issue is unlike the consistent judicial interpretation we found present in Durham v. U-Haul International, ___ N.E.2d ___, ___ (Ind. 2001).
The statute has been amended since Dillier. The wrongful death statute now reads in relevant part:
That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedents estate for the payment thereof. The remainder of the damages, if any, shall . . . inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased. If such decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him, the damages inure to the exclusive benefit of the person or persons furnishing necessary and reasonable hospitalization or hospital services . . . .
Ind.Code § 34-23-1-1 (1998).
These changes also suggest that Dillier rests on reasoning that is not persuasive under the current statutory scheme. First, the phrase if such decedent depart this life [without statutory beneficiaries] was added in 1933 as a proviso dealing with the disposition of a decedents assets in the absence of survivors. Ind.Code Ann. § 34-1-1-2 (West 1983), Historical Note, superseded by § 34-23-1-1. It applies only if the decedent leaves no spouse or dependent beneficiaries. If there is a surviving spouse or dependent, the remainder of the damages after expenses inures to the benefit of the surviving spouse or dependent beneficiary. Since 1852, it has been the general rule in Indiana that the wrongful death action may be brought by the personal representative and that damages inure to the benefit of the widow and children, if any. 2 G. & H. 330, § 784 (1870). There is no suggestion in this version of the statute that the cause of action expires if the surviving spouse or beneficiary dies before the wrongful death action is prosecuted to its conclusion.
The wrongful death statute addressed by the Dillier court did not contain that provision. The court concluded that, because the statute was in derogation of the common law, the statute could not be extended beyond the legitimate meaning of the words employed, and that if the right of the beneficiary to bring the action were to continue, this right would have to be expressly provided by statute. Dillier, 34 Ind. App. at 58-59, 72 N.E.2d at 273-74. The language of the statute now expressly suggests that survival of the statutory beneficiary to the wrongful death victims death, and not until judgment, is a prerequisite to recovering damages under the statute.
Second, Dillier relied on the fact that under the survival statute at that time, a cause of action for personal injury did not survive beyond the death of the wrongdoer. Thus, the court reasoned, it would not make sense for a cause of action to survive beyond the death of the beneficiary either. Id. at 58-59, 72 N.E. at 273-74. Whatever the merits of this logic, its premise is no longer valid. Under the current survival statute, defendants death ordinarily has no effect on the plaintiffs right to maintain the action. See Ind.Code § 34-9-3-1 (1998) (actions for libel and slander, among others, are exceptions to the rule that a cause of action accruing before the death of the plaintiff or defendant survives). Dillier relies on reasoning no longer persuasive in view of subsequent legislative amendments to the Wrongful Death Act.
Bemenderfer argues that, because the purpose of the wrongful death statute is to compensate those who have suffered pecuniary loss rather than to punish wrongdoers, policy dictates that there should be no recovery where there is no remaining spouse or dependent beneficiary. Dillier shared this concern, concluding that allowing recovery after the death of the beneficiary would mean that damages would inure to the benefit of someone not contemplated by the statute. 34 Ind. App. at 57, 72 N.E. at 273. Williams responds that it would run counter to public policy to allow an elderly or infirm persons short life-expectancy to inure to the benefit of a tortfeasor. Williams also points out that permitting the death of the plaintiff to terminate the claim creates an incentive for tortfeasors and their insurers to stall litigation in the hopes that the beneficiary will die before judgment.
We agree with Williams that the policy concerns cited by the parties are at least in equipoise, and perhaps favor Williams. The circumstances of this case illustrate that point. Hoy was eighty-two and suffering from Alzheimers and Parkinsons 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 wifes death and lost all will to live. This human tragedy was compounded by its financial effect. Hoys 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 defendants own wrongdoing. At least under these circumstances, the very purpose of the law invoked by Bemenderfercompensation of pecuniary lossis furthered by allowing recovery. The wrongful death defendant should not be allowed to avoid compensation to a beneficiary merely because the beneficiary, as an elderly person profoundly affected by the death of a spouse, is more vulnerable than the average person. It is a staple of tort law that the tortfeasor takes her victim as she finds him. E.g., Botek v. Mine Safety Appliance Corp., 611 A.2d 1174, 1177 (Pa. 1992).
Requiring that the beneficiary survive to the date of judgment would also create a cut-off that is arbitrary and unsupported by statute. The survivor statute was enacted in the same law that contained the wrongful death statute. It provides: [I]f an individual who is entitled or liable in a cause of action dies, the cause of action survives and may be brought by or against the representative of the deceased party . . . . Ind.Code § 34-9-3-1 (1998). Thus, the plain language of the survival statute tells us that a cause of action, once accrued, does not abate. The survival statute and the wrongful death statute must be construed together. There is nothing in the wrongful death statute that contravenes the direction of the survival statute that Hoys claim, once accrued, survived. Nor does Bemenderfer point to anything in either the wrongful death statute or survival statute that suggests that survival to verdict is a prerequisite to recovery contemplated by the legislature. As with statutes of limitations, it is uniquely within the legislatures power to establish a cut-off if it determines that a cut-off is reasonable. Because the plain language of the statute requires only that the beneficiary survive the wrongful death victim and because in our view policy concerns advise in favor of allowing Hoys estate to prosecute his claim, we hold that the statutory beneficiarys claim does not abate if death ensues prior to verdict.
In sum, the legislature is of course free to limit recovery to statutory beneficiaries who survive until judgment, as Bemenderfer urges. But we conclude that it has not done so. Because we conclude that Hoys damages did not abate upon his death, and because, as an heir, Williams stands to recover those damages, we do not address the Court of Appeals conclusion that Dillier establishes that Williams may bring a separate action to recover her pecuniary losses. Bemenderfer, 720 N.E.2d at 405. It is also unnecessary to address the Court of Appeals conclusion that because Hoy could have proceeded directly under the Medical Malpractice Act, his claim survives his death under the survival statute. Id. at 407.