FOR PUBLICATION

ATTORNEYS FOR APPELLANTS:    ATTORNEYS FOR APPELLEES:

SCOTT A. BENKIE     PATRICIA POLIS MCCRORY
DOUGLAS A. CRAWFORD     SANDRA S. CARR
Benkie & Crawford    Harrison & Moberly
Indianapolis, Indiana    Indianapolis, Indiana

JENNIPHER FORTE, individually and on behalf    )
of the ESTATE OF JEFFREY BARCUS,                )
                                                )
    Appellants-Plaintiffs,                      )
                                                )
        vs.                                     )    No. 49A02-9807-CV-561
                                                )
CONNERWOOD HEALTHCARE, INC., et al.,            )
                                                )
    Appellees-Defendants.                       )

                                            

BAILEY, Judge

death statute); Andis, 489 N.E.2d at 83 (child wrongful death statute).See footnote 3

injury until his death, and may also recover any incidental damages the child may have suffered, such as medical attendance, care, and nursing up to that time. Jackson v. Pittsburgh, C., C. & St. L. Ry. Co., 140 Ind. 241, 39 N.E. 663 (1895). At common law, “[a] parent might, and still may, without any [wrongful death] statute, recover for loss of services resulting from a wrongful injury to his child, during the period of disability occasioned by such injury, and, if death resulted, for the loss of services during the time intermediate the injury and death.” Mayhew v. Burns, 103 Ind. 328, 2 N.E. 793, 794 (1885). In the case where death resulted from the wrongful act, the parent “could recover for loss of services from the date of the commission of the injury only to the date of the death of the son; but by [the wrongful death] statute we have 'added to the common-law remedy of a parent the right to recover all the probable pecuniary loss resulting from the death of a child.'” Thompson v. Town of Fort Branch, 204 Ind. 152, 178 N.E. 440, 442 (1931) (internal quotation from Louisville, N.A. & C. Ry. Co. v. Goodykoontz, 119 Ind. 111, 21 N.E. 472 (1889)).See footnote 4
    Thus, the common law cause of action has survived and continues to provide a remedy for parents for the loss of their child's services up until the child's death. See Jackson, 39

N.E. at 663; Thompson, 178 N.E. at 472; Mayhew, 2 N.E. at 794. And, as the common law right of recovery ends at the child's death, the child wrongful death statute provides a parent with an additional remedy to recover damages, including the damages related to the loss of the child's services, which pertain to a period of time after a child's death. See Ind. Code § 34-1-1-8(f) (now Ind. Code § 34-23-2-1(f)) (the child wrongful death statute provides that “[damages may be awarded . . . only with respect to the period of time from the death of the child until [one of three later dates].” (emphasis added).See footnote 5
    In the present case, Mother, having brought her lawsuit in her individual capacity as well as on the behalf of her son's estate, has stated a redressable common law claim for the loss of her son's services from the date of Nursing Home's first negligent act or omission until the time of his death. As noted above, this common law remedy preceded, and survived

the additional remedy provided by the wrongful death statute.See footnote 6 See Mayhew, 2 N.E. at 794; Thompson, 178 N.E. at 442.
    Thus, based on Rogers, 557 N.E.2d 1056-57, we hold that Mother has appropriately stated a redressable claim for punitive damages in her individual capacity under the present circumstances. Our decision aligns with Rogers in militating against the anomalous state of the law under the wrongful death statutes which allow death to insulate a defendant from liability for punitive damages. See footnote 7 See id.

Automobile Insurance Company, 667 N.E.2d 802, 805. (Ind. Ct. App. 1996), trans. denied. Punitive damages may be awarded only if there is clear and convincing evidence that the tortfeasor acted with malice, fraud, gross negligence, or oppressiveness which was not the result of mistake or other human failing. Id. The sole issue in determining whether an award of punitive damages is appropriate is whether the defendant's conduct was so obdurate that he should be punished for the benefit of the general public. Orkin, 486 N.E.2d at 1022.

damages associated with her common-law claim for the loss of her child's services. See Rogers, 557 N.E.2d at 1057.
Reversed.
DARDEN, J., concurs.
BAKER, J., dissents with separate opinion.

JENNIPHER FORTE, individually, and on    )
behalf of the ESTATE OF JEFFREY BARCUS,    )
            )
    Appellant-Plaintiff,    )
            )
        vs.    )    No. 49A02-9807-CV-561
            )
CONNERWOOD HEALTHCARE, INC., et al.,    )     
            )
    Appellees-Defendants,    )
            
     ______________________________________________________________________________

BAKER, Judge, dissenting.

     As the trial judge so aptly noted in his order granting Connerwood Healthcare's motion for judgment on the pleadings, the legislature's amendment to IND. CODE § 34-1-1-8,See footnote 9 the Child Wrongful Death Act (the Act), neither changed nor modified the pecuniary loss rule with respect to wrongful death actions.

childbearing opportunity, which does not exist as an element of damages in the child's action.

Dearborn, 551 N.E.2d at 1137. In light of the above, it is apparent to me that Indiana does not recognize an independent loss of consortium claim based on the death of a child.
    Moreover, the Act enumerates specific items of recoverable damages in an action for the death of a child. In particular, claims for the “loss of the child's services, love and companionship” are included. I.C. § 34-1-1-8(e)(1) and (2). I would note that the amendment to the Act allowing for the recovery of a child's love and affection came in apparent response to Andis and Miller v. Mayberry, 506 N.E.2d 7 (Ind. 1987), which specifically precluded the recovery of such damages because they were “not proper elements of damage in an action for the death of a minor child.” Andis, 489 N.E.2d at 83. While the majority correctly points out that the common law authorizes recovery for the loss of a child's services in some circumstances, slip op. at 4-5, this particular claim is now specifically encompassed within the Act.
    The item of punitive damages remains conspicuously absent from the Act. As our supreme court observed in McKnight v. State, 658 N.E.2d 559, 562 (Ind. 1995), “when the legislature enacts a statute in derogation of the common law, [courts] presume that the legislature is aware of the common law and does not intend to make any change therein beyond what it declares either in express terms or by unmistakable implication.” Inasmuch as our legislature has had ample opportunity to include punitive damages in the Act since Andis and Rogers, and has not, it is apparent to me that the legislature has acquiesced in previous judicial interpretations denying recovery of punitive damages in actions for the

death of a child. See Miller, 506 N.E.2d at 11 (legislature's failure to change a statute in light of judicial interpretation amounted to acquiescence in the construction given by the court). As a result, asserting a separate claim for these same damages under the guise of a common law cause of action is unnecessary.
    I would also note that the viability of any independent common law claim seeking damages for the loss of a child's services is questionable and speculative at best in today's society. Gone are the days of the “family farm” or the “mom and pop” grocery where parents routinely depended upon their children to render the services necessarily required to economically sustain the familial unit. Moreover, in the particularly unfortunate circumstances presented here, it is virtually inconceivable to me that Forte might advance a successful claim for the loss of her child's services.See footnote 2     
    There is yet another string to this bow in that unlike a common law claim for the loss of a child's services which are incorporated into the Act, a common law claim for spousal loss of consortium is not included in the Adult Wrongful Death Act. Therefore, it is my view that the Rogers court simply extended the pecuniary loss rule to recognize a claim for the recovery of punitive damages in that circumstance because the common law claim for loss of consortium is unique to the spousal relationship and was not included in the Adult Wrongful Death Act. In circumstances such as these which involve an injury and subsequent resulting death to a child, there is no allowance for the recovery of punitive damages by the

parent in his or her own right. Rather, the right to recover such damages, until our legislature provides otherwise, inures only to the party directly injured. Thus, a parent's right to recovery is confined to pecuniary loss as dictated by the rationales espoused in Andis and Miller. It rests with the legislature “to change the rule if it disagrees with the Court's constructions of its legislative enactments or feels that there is a need to change that rule based on the needs or requirements of society.” Miller, 506 N.E2d at 11. I fully acknowledge Chief Justice Shepard's concurring opinion in Miller where he makes the point that courts of review are not foreclosed from altering their views with respect to certain issues if such action is warranted. By the same token, however, neither this court nor our supreme court will simply “cast away” long-standing precedent. In Marsillett v. State, 495 N.E.2d 699, 704 (Ind. 1986), Chief Justice Shepard in writing for the majority observed as follows:
    Under the doctrine of stare decisis, this Court adheres to a principle of law which has been firmly established. Important policy considerations militate in favor of continuity and predictability in the law. Therefore, we are reluctant to disturb long-standing precedent which involves salient issues. [Citation omitted]. Precedent operates as a maxim for judicial restraint to prevent the unjustified reversal of a series of decisions merely because the composition of the Court has changed. . . [Citation omitted].

    Finally, I would note that the majority has tacitly acknowledged that punitive damages are not recoverable in actions involving the death of a child. See slip op. at 2, n. 1. To me, its effort in attempting to explain away such a firmly-established rule of law in a hair- splitting fashion may be likened to William Shakespeare's oft-quoted line from Hamlet: “The lady doth protest too much, methinks.”

Services, Inc., 314 So.2d 765, 771 (Fla. 1975) (difficult to accept the proposition that the legislature intended a tortfeasor to be punished for his malicious and reckless acts when they maim another but not for those same acts when they kill the victim); State, ex rel. Smith v. Green, 494 S.W.2d 55, 60 (Mo. 1973) (punitive damages are appropriate under a wrongful death statute [similar to Indiana's] which permits recovery for such damages as deceased himself might have recovered had he survived the injury and brought the action himself).

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