ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
MICHAEL D. CORTSON ROBERT J. PALMER
Mishawaka, Indiana BRAD VARNER
May, Oberfell & Lorber
South Bend, Indiana
The ESTATE OF EVAN SEARS by and through ) his administratrix, Marci Sears and ELIZABETH ) SEARS by and through her next best friend, Marci ) Sears, ) No. 71S05-0207-CV-402 ) in the Supreme Court Appellant (Plaintiff ), ) ) v. ) No. 71A05-0012-CV-550 ) in the Court of Appeals PATRICIA GRIFFIN, ) ) Appellee (Defendant ). )
Motorist Patricia Griffin struck and killed eighteen-year-old Evan Sears as he was doing
road work for the City of South Bend. Griffin entered into a
settlement agreement with Evans parents for the limits of her insurance in return
for a release from further liability. Evans mother Marci then sued Griffin
as administratrix of Evans estate and as next friend of her daughter, Evans
younger sister. This effort to obtain further damages notwithstanding a settlement will
fail unless Marci Griffin can prove on remand that her daughter qualified as
her sons legal dependent.
On May 8, 2000, Marci Sears sued Griffin as administratrix of Evans estate,
seeking survival and wrongful death damages. She also sought wrongful death damages
as next friend of her daughter Elizabeth, who was twelve when Marci signed
the release. Griffin moved for dismissal of the claims, arguing that the
Sears were entitled to only one remedy, which they had received, and that
Elizabeth could only make a claim through Evans estate.
The trial court granted Griffins motion to dismiss all the claims. The
Indiana Court of Appeals treated the ruling as a grant of summary judgment,
and reversed on the wrongful death claims. Estate of Sears v. Griffin,
752 N.E.2d 210, 217 (Ind. Ct. App. 2001). Judge Baker concluded that
he would affirm the trial court on all claims. Id. at 218-20
(Baker, J., concurring in part and dissenting in part).
Indianas general wrongful death statute (WDS) allows personal representatives of decedents estates to
recover damages on behalf of surviving spouses, dependent children or next of kin,
and service providers such as funeral homes. Ind. Code Ann. § 34-23-1-1
(West 1999). Our child wrongful death statute (CWDS) allows parents or
guardians to obtain damages for the wrongful death of unmarried children who had
no legal dependents and were under twenty years of age (or under twenty-three
and still in school).
Ind. Code Ann. § 34-23-2-1 (West 1999).
The CWDS therefore allows recovery without proof of dependency or the necessity of
opening an estate.
Both statutes allow damages for loss of services; loss of love, care, and
affection; and expenses such as medical, funeral and burial expenses.
Code §§ 34-23-1-1, 2-1; Ed Wiersma Trucking Co., 643 N.E.2d at 913.
The two statutes are disjunctive, so if the decedent fits the CWDS description
(unmarried, under age twenty, no dependents), that statute provides the exclusive remedy for
the wrongful death. Ed Wiersma Trucking Co., 643 N.E.2d at 912; City
of Indianapolis v. Taylor, 707 N.E.2d 1047, 1060 (Ind. Ct. App. 1999)
(quoting Vera Cruz v. Chesapeake & Ohio Ry. Co., 192 F. Supp. 958,
958 (N.D. Ind. 1961)) (The Indiana Wrongful Death Act and the Indiana statute
allowing recovery by a parent for the loss of services of a child
create independent and mutually exclusive actions. They neither afford optionally alternative remedies
nor are they actions that can be pursued together.).
Judge Baker correctly observed that only a personal representative may bring an action
under the WDS.
Estate of Spears, 707 N.E.2d at 219 (Baker, J.,
concurring in part and dissenting in part); Ind. Code § 34-23-1-1. Therefore,
Marci as next friend of Elizabeth lacked standing to bring such a claim,
and the trial court correctly rejected it.
Nonetheless, the question whether Elizabeth qualified as a dependent is important in evaluating
the estates wrongful death claim because the determination of which statute applies (WDS
or CWDS) turns on whether Evan died without dependents. Ind. Code §
A decedent need not have been legally obligated to support an individual for
that person to qualify as a dependent next of kin under the WDS.
N.Y. Cent. R. Co. v. Johnson, 234 Ind. 457, 464, 127 N.E.2d
603, 606-07 (1955). Neither is total dependence required. 234 Ind. at
464-65, 127 N.E.2d at 607.
The person claiming dependence must, however, show a need or necessity for support
. . . coupled with the contribution to such support by the deceased.
234 Ind. at 465, 127 N.E.2d at 607. As explained in
Luider v. Skaggs, 693 N.E.2d 593, 596-97 (Ind. Ct. App. 1998) (citation omitted),
Pecuniary loss is the foundation of the wrongful death action. This loss
can be determined in part from the assistance that the decedent would have
provided through money, services or other material benefits.
Evidence such as a legal obligation to support and claiming dependency for tax
purposes may be considered, although they are not dispositive.
See N.Y. Cent.
R. Co., 234 Ind. at 464, 127 N.E.2d at 606-07 (citation omitted) (It
is not necessary for the decedent to have been under a legal obligation
to support the next of kin, but it may be of weight in
determining the amount of pecuniary loss.); see also Koger v. Reid, 417
N.E.2d 1142, 1143, 1145 (Ind. Ct. App. 1981) (rejecting claim that father and
younger brothers were dependent next of kin of seventeen-year-old decedent who took over
household maintenance chores after her mother died and chauffered brothers to school activities
and church; no necessitous want where father paid all household expenses including daughters
maintenance and his attitude regarding dependency status was indicated on his income tax
Although Elizabeth undoubtedly depended on her older brother in the everyday sense of
the word, the legal definition is what matters here. The complaint alleged
that Elizabeth was dependent on Evan for love, affection, support, transportation, comfort, counseling,
and guidance. (R. at 6.)
Although the record is not yet developed, it would be quite unusual for a twelve-year-old with both parents living to be dependent on her teen-age sibling for services and/or financial support that the parents could not or would not provide in that siblings absence.
Services must go beyond merely helping other family members, even those who have relied on that assistance. In Chamberlain v. Parks, 692 N.E.2d 1380, 1381, 1384-85 (Ind. Ct. App. 1998), a twenty-five-year-old helped his retired mother in and out of chairs, drove her to doctor appointments, carried groceries, helped his father with lawn care and snow removal, and performed other household tasks. The court found these services not sufficiently tangible and material to establish the parents dependence; they amounted to no more than gifts, donations and acts of generosity expected of a son to whom free housing, most of his board, gasoline money and automobile insurance was provided. Id. at 1384.
The support must also be more than just a service or benefit to which the claimed dependent had become accustomed. In Wolf v. Boren, 685 N.E.2d 86, 87 (Ind. Ct. App. 1997), a father and three adult siblings of a forty-four-year-old decedent claimed dependent next of kin status because the decedent maintained a Lake Monroe vacation home which he had allowed the family to use. Although [i]n a general sense, [decedents] family was depending on [decedent] to provide his vacation home as a family retreat, the court declined to extend coverage of the WDS that far. Id. at 88. See footnote
We find no cases establishing dependency for purposes of the WDS based on purely emotional support, or on financial support and/or services that parents were capable of providing and would be obligated to provide in the absence of a deceased sibling. Unless more than this is proven on remand, Evan died without legal dependents and recovery for his wrongful death lies under the CWDS, not the WDS. See footnote
DICKSON, SULLIVAN, and RUCKER, JJ., concur.
BOEHM, J., dissents with separate opinion.