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Attorneys for Appellant
Richard P. Samek
Larry L. Barnard
Miller Carson Boxberger & Murphy, L.L.P.
Fort Wayne, Indiana
Attorneys for Amicus Curiae, Indiana Defense
Lawyers Association
Norman T. Funk
Donald D. Levenhagen
Alan J. Irvin
Hill, Fulwider, McDowell, Funk & Matthews
Indianapolis, IndianaAttorneys for Appellee
John D. Ulmer
Craig M. Buche
Yoder, Ainlay, Ulmer & Buckingham
Goshen, Indiana
Attorneys for Amicus Curiae, Indiana Trial
Lawyers Association
Gregory H. Miller
Wernle, Ristine & Ayers
Crawfordsville, Indiana
IN THE
INDIANA SUPREME COURT
DARCY J. ROBINSON,
Appellant (Defendant below),
v.
ROBERT J. WROBLEWSKI and ANN
WROBLEWSKI,
Appellee (Plaintiffs below).
)
) Supreme Court No.
) 02S03-9809-CV-482
)
)
) Court of Appeals No.
) 02A03-9609-CV-341
)
)
)
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Paul D. Mathias, Judge
Cause No. 02D01-9602-CT-51
ON PETITION TO TRANSFER
December 31, 1998
SULLIVAN, Justice.
Robert and Ann Wroblewski's son was killed in an automobile accident. They seek
damages for the loss of his love and companionship measured using the time period from his
death until the death of his last surviving parent. Darcy Robinson, the defendant, argues for
a shorter measuring period. We hold that Indiana's Child Wrongful Death ActSee footnote
1
authorizes
the measuring period advocated by the Wroblewskis.
Background
On September 4, 1994, Brian Wroblewski's automobile collided with Darcy Robinson's in Monroe County. As a result of the collision, Brian Wroblewski died at the age of
twenty-two. At the time of his death, Brian was enrolled as a student at Indiana University
in Bloomington. Brian's parents, Robert and Ann Wroblewski, filed a wrongful death claim
in the Allen Superior Court seeking, in part, damages for the loss of their son's love,
comfort and companionship . . .[that they] will suffer [for] the rest of their lives.
Robinson moved to strike from the complaint the Wroblewskis' request for damages
measured using the time period from the date of Brian's death until the death of Brian's last
surviving parent. Instead, Robinson argued that the Wroblewskis should only be entitled to
recover damages measured using the time period from the date of Brian's death until the
date Brian would have reached the age of 23. This latter measuring period is the same as
that assigned by the statute for damages for the loss of a child's services.See footnote
2
The trial court
concluded that the legislature intended two specific and independent limitations on
damages and found that the recovery for the loss of a child's love and companionship began
upon the death of the child and extended until the death of the last surviving parent.
This case was brought before the Court of Appeals on interlocutory appeal on the
sole issue of whether Indiana's Child Wrongful Death Act permits the recovery of damages
for the loss of a child's love and companionship until the death of the last surviving parent.
That court answered in the affirmative. Robinson v. Wroblewski, 679 N.E.2d 1348, 1349
(Ind. Ct. App. 1997). Robinson petitioned this Court for transfer, which we granted.
Discussion
I
The statutory provisions at issue in this case were enacted by the General Assembly
in 1987 in the wake of our holding in Miller v. Mayberry, 506 N.E.2d 7 (Ind. 1987). In
Miller, parents sought damages for the loss of a child's love and affection after the death of
their seventeen year old son. We held then that the pecuniary loss rule is the law in Indiana and serves as an element of damages for a parent suing for the injury or death of a
minor child. Id. at 8. As such, damages for the loss of a minor child were limited to those
losses on which a pecuniary value could be placed. Such a value could be determined from
the assistance that the child would have provided through money, services or other material
benefits. Id. at 10 (citing Mayhew v. Burns, 103 Ind. 328, 2 N.E. 793 (1885); Louisville,
New Albany, and Chicago R.R. v. Goodykoontz, 119 Ind. 111, 21 N.E. 472 (Ind. 1889);
Louisville, New Albany, and Chicago Ry. v. Rush, 127 Ind. 545, 26 N.E. 1010 (1890)). See
also Southlake Limousine & Coach, Inc. v. Brock, 578 N.E.2d 677, 679 (Ind. Ct. App.
1991). In essence, a parent could only recover for the economic loss of a minor child. A
parent could not recover for the loss of a child's love and affection. Miller, 506 N.E.2d at
11.
In addition, under the pecuniary loss rule in Indiana, recoverable damages in an
action for the wrongful death of a minor child for loss of services were measured using the
time period from the date of the child's death to the date the child would have reached the
age of majority. Thompson v. Town of Fort Branch, 204 Ind. 152, 157, 178 N.E. 440, 444
(1931) (citations omitted); Boland v. Greer, 409 N.E.2d 1116, 1119 (Ind. Ct. App. 1980)
(quoting Wallace v. Woods, 149 Ind. App. 257, 262-68, 271 N.E.2d 487, 490-93 (1971));
Hahn v. Moore, 127 Ind. App. 149, 158, 133 N.E.2d 900, 904 (1956).
It is well settled that, in an action by a parent for the death of his child, he is
entitled to recover only for the pecuniary injury he has sustained, and that the
proper measure of damages is the value of the child's services from the time
of the injury until he would have attained his majority, taken in connection
with his prospects in life, less his support and maintenance. To this may be
added, in proper cases, the expenses of care and attention to the child, made
necessary by the injury, funeral expenses and medical services.
Pennsylvania Co. v. Lilly, 73 Ind. 252, 254 (1881)(citations omitted; emphasis added). See
also Wallace, 149 Ind. App. at 263-64, 271 N.E.2d at 491(citations omitted).
In summary, Miller reiterated that there were two characteristics of the pecuniary loss
rule as it applied to an action for the wrongful death of a minor child: (1) the amount of
damages recoverable was limited to the economic loss sustained by the parents; and (2) the
time period over which the economic loss was calculated terminated at the age of majority.
We declined the invitation to change either of these characteristics of the pecuniary loss
rule. Miller, 506 N.E.2d at 11.
The Legislature has not changed its position on the pecuniary loss rule, even
though it had full knowledge of this Court's interpretations of its enactments
and in spite of the fact that efforts have been made to provide for a change in
the measure of damages awarded to parents for the loss of a minor child.
Id. at 9. Instead, we noted the power of the legislature to change the rule if it disagree[d]
with the Court's constructions of its legislative enactments or fe[lt] that there [was] a need
to change [the pecuniary loss rule] based on the needs or requirements of society. Id. at 11.
One month after our decision in Miller, the General Assembly amended the Child
Wrongful Death Act, explicitly authorizing parents to recover damages for the loss of a
child's love and companionship. The Act as amended provides in pertinent part as follows:
(e) In an action to recover for the death of a child, the plaintiff may recover damages:
(1) for the loss of the child's services;
(2) for the loss of the child's 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 child's death;
(B) the child's 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 child's estate, including reasonable attorney's fees.
(f) Damages may be awarded under this section only with respect to the
period of time from the death of the child until:
(1) the date that the child would have reached:
(A) twenty (20) years of age; or
(B) twenty-three (23) years of age if the child was enrolled in an
institution of higher education or in a vocational school or
program; or
(2) the date of the child's last surviving parent's death;
whichever first occurs.
(g) Damages may be awarded under subsection (e)(2) only with respect to
the period of time from the death of the child until the date of the
child's last surviving parent's death.
Ind. Code § 34-23-2-1 (1998)(emphasis added).
The measuring period used to calculate damages under the Child Wrongful Death Act
are described in subsections (f) and (g). Through the use of the phrase this section,
subsection (f) appears to limit the measuring periods for calculating each of the three types
of damages specified in subsections (e)(1), (e)(2) and (e)(3) to the date that the child would
have reached the relevant age, or until the death of the child's last surviving parent, whichever first occurs. However, the language in subsection (g), through specific reference to
subsection (e)(2), appears to provide for a different measuring period to calculate damages
for the loss of a child's love and companionship: from the death of the child until the death
of the child's last surviving parent. Therefore, the issue before this Court is to determine
whether the reference to this section in subsection (f) pertains to all recoverable damages
delineated in the Act, or whether, in the face of the language in subsection (g), damages for
the loss of a child's love and companionship are to be measured using the time period from
the death of the child to the death of the child's last surviving parent.
Each of these two different interpretations has been utilized by one or more courts.
In Herriman v. Conrail, Inc., the parents of a nineteen (19) year old who died in a railroad
grade crossing collision sought damages from the railroad. Herriman v. Conrail, Inc., 887
F. Supp. 1148, 1150 (N.D. Ind. 1995). After a review of Indiana case law, the federal
district court concluded that Indiana had not abandoned the pecuniary loss rule, but merely
amended it to permit recovery of an additional type of damages _ loss of a child's love and
companionship. Id. at 1154. The court further reasoned that the pecuniary loss rule in
Indiana continues to contain the temporal limitations previously engrafted upon it by case
law. Id. at 1156. Consequently, damages for the loss of a child's love and companionship
were held to be measured using the same period as that for damages for the loss of a child's
services. Id.
Two years later, in the case before us today, the Indiana Court of Appeals declined
to follow Herriman. Instead, the court held that a parent was entitled to recover damages for
the loss of a child's love and companionship until the death of the last surviving parent.
Robinson, 679 N.E.2d at 1354. The Court of Appeals determined that the legislature
intended to create two distinct recoveries for the wrongful death of a child: (1) damages
recoverable for the loss of a child's services (pecuniary losses), and (2) damages recoverable
for the lost love and companionship of a deceased minor child (non-pecuniary losses). Id.
After considering the legislative history, the Court of Appeals concluded that the legislature
only intended to limit the recovery for pecuniary losses to the period equivalent to the
child's minority whereas the recovery for the loss of a child's love and companionship (a
non-pecuniary loss) was intended to be awarded solely to a period of time from the death
of a child until the date of the child's last surviving parent's death. Id. Accord Carper v.
Tuning, No. EV 96-19-C-D/H, 1997 WL 580693 at *1 (S.D. Ind. Jan. 28, 1997).
II
In 1987, the legislature responded to Miller by enacting Senate Bill 2 _ an amendment to the Child Wrongful Death Act _ which included the recovery of damages for the
loss of a child's love and companionship. Pub. L. No. 306 (1987) (now codified at Ind.
Code § 34-23-2-1). We have reviewed the history of the movement of the Child Wrongful
Death Act amendment through the General Assembly in 1987 and believe that history
dictates certain conclusions helpful to our inquiry. We begin with a general overview of the
problem and then turn to a more specific review of the legislative history.
A
As introduced and throughout the bill's movement through the 1987 legislature,
SECTION 1 of Senate Bill 2 provided, inter alia, that three new subsections would be added
to section 1 of Ind.Code § 34-23-2. As introduced, those subsections contained the following provisions:
_ The first, subsection (d) (changed to (e) in the final version of the bill), provided
that the plaintiff in a child wrongful death action could recover damages:
(1) for the loss of the child's services;
(2) for the loss of the child's love and companionship;
(3) to pay certain expenses specified in the bill.
_ The second, subsection (e) (changed to (f) in the final version of the bill), provided that the period for measuring damages under subsection (d)(1) would run
from the time of the child's death until the child would have reached a specified
age.
_ The third, subsection (f) (changed to (g) in the final version of the bill), provided
that the period for measuring damages under subsection (d)(2) would run from
the time of the child's death until the death of the child's last surviving parent.
Senate Bill No. 2, 105th Ind. General Assembly (1987) (Nov. 18, 1986 printing).
While important changes were made to the details of these and other provisions of the
bill as it progressed through the General Assembly, the structure of these three subsections
remained the same until the final version of the bill emerged. As noted, the subsections
were re-lettered. And, as mentioned supra, the second subsection was changed to provide
that the period for measuring damages under this section would run from the time of the
child's death until the child would have reached a specified age. However, the third
subsection remained unchanged. As such, the change in the language of the second subsection provided a different measuring period for calculating damages for loss of love and
companionship than the language of the third subsection.
Our inquiry, then, is whether the change in the final version of the bill inserting the
this section language was an expression of legislative intent that the measuring period for
calculating damages for loss of love and companionship runs from the time of the child's
death until the child would have reached a specified age rather than from the time of the
child's death until the death of the child's last surviving parent. To pursue this inquiry, we
turn to a more detailed examination of the bill's legislative history.
At various stages during the legislative process, provisions concerning the following
aspects of the child wrongful death statute were included in, deleted from, or amended to the
legislation.See footnote
3
1. The maximum age of a child whose death would trigger the recovery provisions
of the statute.See footnote
4
The bill as introduced provided that damages were recoverable for the
wrongful death of a child under age 18. The Senate Judiciary Committee amended the bill
to increase the maximum age of covered children from 18 to 21; the full Senate reduced the
maximum age back to 18; the House Judiciary Committee set the maximum age at 18 or, for
children in college or vocational school, 23; and the full House set the maximum age at 20
or, for children in college or vocational school, 23. The bill as passed adopted the full
House's approach, i.e., setting the maximum age of covered children at 20 or, for children
in college or vocational school, 23.
2. The expenses which a parent is entitled to recover as damages under the statute.See footnote
5
The bill as introduced provided that damages were recoverable to pay (a) health care and
hospitalization expenses necessitated by the wrongful act or omission that caused the death
and (b) funeral and burial expenses. The full Senate amended the bill to add to the list of
damages recoverable to pay expenses (a) reasonable family psychiatric and psychological
counseling expenses attributable to the child's death, (b) uninsured and unsecured debts of
the child, and (c) costs of administration of the child's estate. The House Judiciary Committee amended the bill to delete from the list of damages recoverable to pay expenses the word
"unsecured See footnote
6
and the full House added language to include within the meaning of "debts of
the child," those debts for which a parent was obligated on behalf of the child. The bill as
passed adopted the full House approach, i.e., damages are recoverable to pay the expenses
of (a) health care and hospitalization necessitated by the wrongful act or omission that
caused the death, (b) the funeral and burial, (c) reasonable family psychiatric and psychological counseling expenses attributable to the child's death, (d) uninsured debts of the
child, including the debts for which a parent is obligated on behalf of the child, and (e) costs
of administration of the child's estate.
3. The measuring period for calculating damages for (a) loss of a child's services, (b)
loss of a child's love and companionship, and (c) expenses.See footnote
7
The bill as introduced provided
that the measuring period for calculating damages was set for the period from the date of the
child's death (a) until, for loss of a child's services, the first to occur of the child's 18th
birthday or the death of the child's last surviving parent; and (b) until, for loss of a child's
love and companionship, the death of the child's last surviving parent. No measuring period
for calculating damages for expenses would be inserted until the final version of the bill.
The Senate Judiciary Committee amended the bill to set the measuring period for calculating
damages for loss of a child's services from the date of the child's death until the child's 21st
birthday and to delete altogether the measuring period for calculating damages for loss of a
child's love and companionship. The effect of this latter deletion is not clear. However, the
language of the bill as introduced was restored by the full Senate and remained unchanged
until conference committee.See footnote
8
In conference committee, the conflicting language that is the
subject of our inquiry was inserted, providing both (a) that the measuring period for calculating damages for all of (i) loss of services, (ii) loss of love and companionship, and (iii)
expenses would run from the date of the child's death until the first to occur of the child's
20th or 23rd birthday or the death of the child's last surviving parent; and (b) that the
measuring period for calculating damages for only loss of love and companionship would
run from the date of the child's death until the death of the child's last surviving parent.
4. An offset for the damages recoverable for loss of a child's services for the parents'
reasonable expenses that would have been incurred in rearing the child.See footnote
9
The bill as introduced provided that damages recoverable for loss of a child's services would be reduced by
the parents' reasonable expenses that would have been incurred in rearing the child. The
Senate Judiciary Committee deleted this offset for child rearing expenses; the full Senate
restored this offset; the House Judiciary Committee made the offset for child-rearing
expenses permissive rather than mandatory; and the bill passed the full House in this
fashion. The bill as passed contained no offset for child-rearing expenses.
5. A dollar limitation on the damages recoverable for loss of a child's love and
companionship.See footnote
10
The bill as introduced provided that damages recoverable for loss of a
child's love and companionship could not exceed $35,000. The Senate Judiciary Committee
deleted altogether any limitation on damages recoverable for loss of a child's love and
companionship. The full Senate amended the bill to provide that damages recoverable for
loss of a child's love and companionship could not exceed $100,000.See footnote
11
The House Judiciary
Committee deleted altogether any limitation on damages. The full House amended the bill
to provide that, for the period May 7, 1987, to May 1, 1990, damages recoverable for loss
of a child's love and companionship could not exceed $100,000, with no limitation thereafter.See footnote
12
The bill as passed provided that through October 31, 1990, damages recoverable for
loss of a child's love and companionship could not exceed $100,000, with no limitation
thereafter.
From the foregoing history, we believe that it is clear that the bill, as introduced, set
forth a different measuring period for calculating damages for loss of a child's services than
that for loss of the child's love and companionship. This helps us focus our inquiry on
whether, as the bill proceeded through the legislative process, there is evidence that the
General Assembly meant to change the measuring period provisions of the bill as introduced. We conclude that there is not.
There was extensive give-and-take between the supporters and opponents of expanded recovery for the wrongful death of a child: the age of covered children, the expenses
recoverable as damages, the offset for child-rearing expenses, and, most of all, the cap on
damages for loss of love and companionship _ all were in play. This give-and-take
resulted in the compromise that was the final bill. Our legislative intent question, then,
reduces itself to whether the conference committee language (replacing the cross-reference
subsection (d)(1) (now (e)(1)) with this section) that arguably shortened the measuring
period for calculating damages for loss of a child's love and companionship was part of the
same or similar legislative compromise or was an inadvertent drafting error.
We conclude that it was an inadvertent drafting error; that the legislature did not
intend to change this aspect of the bill, as introduced. We reach this conclusion for several
reasons.
First, as a general matter, although the bill was amended substantively in Senate
Committee, on the Senate floor, in House Committee, and on the House floor, none of the
amendments (with the exception of the one in Senate Committee discussed supra) changed
the provisions providing separate measuring periods for damages for loss of services and for
loss of love and companionship. Because there were no such changes, the language does
not seem to have been a likely candidate for compromise in conference committee.
Second, and more specifically, despite all of the skirmishing over a limitation on the
amount of damages for loss of love and companionship, there was no attempt in any of those
amendments to limit the measuring period for calculating those damages. This bolsters our
conclusion that the subject does not seem to have been a likely candidate for compromise.See footnote
13
Third, as a technical drafting matter, if the language change to this section was
intended, the drafter would also have had both to delete the immediately following subsection and redesignate the next following subsection.See footnote
14
But neither of those changes were
made. Thus, if the change was intended, there would be two inadvertent drafting errors
here, i.e., the failures to delete the immediately following subsection and to redesignate the
next following subsection. By finding the language change to this section to be the error,
we minimize the total number of errors.
We note a possible explanation for the error. The bill as introduced provided
recovery for damages for the child's health care and hospitalization prior to death and for
funeral and burial expenses. No measuring period was required to calculate these damages.
But later versions of the bill added additional expense elements, at least one of which _
reasonable family psychiatric and psychological counseling expenses attributable to the
child's death _ could logically require a measuring period for calculation. It may have
been that the change in the measuring period language in the final version of the bill was
meant to cover the damages recoverable for expenses as well as for loss of services. Under
this theory, it could have been that the drafters either did not realize that they were also
including damages recoverable for loss of love and companionship or thought that the more
specific language of the following subsection would be sufficient.
B
Our conclusion is consistent with two canons of statutory construction.
Where statutory provisions are in conflict, no part of a statute should be rendered
meaningless but should be reconciled with the rest of the statute. Garvin v. Chadwick
Realty Corp., 212 Ind. 499, 512-13, 9 N.E.2d 268, 273-74 (Ind. 1937); Chamness v. Carter,
575 N.E.2d 317, 319 (Ind. Ct. App. 1991).
In construing a statutory provision, we must consider the statute as an entirety,
with each part being viewed not as an isolated fragment but with reference to
all the other companion provisions. To effect the legislature's intent, this
Court will construe an ambiguous statute in a manner consistent with other
sections of the enactment.
Hinshaw v. Bd. of Comm'rs of Jay County, 611 N.E.2d 637, 639 (Ind. 1993) (internal
citations omitted). We examine the statute as a whole and give common and ordinary
meaning to the words employed. Matter of Lawrance, 579 N.E.2d 32, 38 (Ind. 1991) (citing
Foremost Life Ins. v. Department of Ins., 274 Ind. 181, 409 N.E.2d 1092 (1980)).
If the legislature intended the cross-reference this section in subsection (f) to apply
to all three types of damages identified in subsection (e), it would have imposed a measuring
period for calculating damages for loss of a child's love and companionship (one which
would terminate at the date the child would have reached age 20 or 23) that cannot be
harmonized with subsection (g), a more expansive measuring period that does not terminate
until the death of the child's last surviving parent.
Magistrate Judge Cosbey in Herriman recognized this problem when he asked,
[W]hat is one to make of the language of subsection (g) of the Act? Herriman, 887 F.
Supp. at 1157. He offered two possible explanations. In the first possibility, subsection (g)
underscores the Legislature's view that damages pursuant to subsection (e)(2) [loss of a
child's love and companionship] must cease with the death of the parents no matter who
asserts the loss. Id. In this view, subsection (g) serves to express legislative intent that
there is no special measuring period for calculating damages in cases where the child was
in the custody of a non-parent guardian.See footnote
15
However, the same conclusion is reached applying subsection (f) alone. The legislature outlined two mutually exclusive measurable periods in subsection (f): (1) the date the
child would have reached age 20 or 23; or (2) the date of the child's last surviving parent's
death; whichever first occurs. There is no way that subsection (f) can be read to provide a
special measuring period in non-parental guardianship situations. Subsection (g) adds
nothing in this regard.
Second, the court suggested that the language in subsection (g) could emphasize
merely that damages for the loss of a child's love and companionship were limited only
to child death cases _ not child injury cases. Id. However, the introductory sentence to
subsection (e) clearly indicates that the identified recoverable damages are for child death
cases only. See Ind. Code § 34-23-2-1(e)(In an action to recover for the death of a child,
. . .)(emphasis added). The notion that recoverable damages apply only to child death
cases is made clear in subsection (e); again, employing this rationale would render subsection (g) superfluous.
In construing a statute, this Court will presume that the legislature did not enact a
useless provision. Hinshaw, 611 N.E.2d at 638 (citing State ex rel. Hatcher v. Lake Superior Court, 500 N.E.2d 737, 739 (Ind. 1986)). The illustrations offered by the court in
Herriman would contradict this canon of statutory construction.
The other established rule of statutory construction that supports our conclusion
holds that where provisions of a statute conflict, the specific provision takes priority over the
general provision. Houtchens v. Lane, 246 Ind. 540, 545-46, 206 N.E.2d 131, 134 (Ind.
1965) (citations omitted); Ezzell v. State, 246 Ind. 268, 271, 205 N.E.2d 145, 146 (Ind.
1965). The provisions in Ind. Code § 34-23-2-1(f) and (g) can be categorized as general and
specific.
The measuring period for calculating damages in subsection (f) is more general
(cross-referencing this section) than subsection (g), which cross-references subsection
(e)(2). As the latter is the more specific provision, that provision controls.
C
As noted several times supra, Herriman concluded that the legislature intended to
limit recoverable damages for the loss of a child's love and companionship to the age of
majority. In support of this conclusion, the court relied on Ed Wiersma Trucking Co. v.
Pfaff, 643 N.E.2d 909 (Ind. Ct. App. 1994) , affirmed and adopted, 678 N.E.2d 110 (Ind.
1997), and King v. King, 610 N.E.2d 259 (Ind. Ct. App. 1993).See footnote
16
We believe the reliance
on Wiersma merits discussion.
In Wiersma, the Indiana Court of Appeals determined that the pecuniary loss rule
included the recovery for the loss of love, care and affection under the Indiana Wrongful
Death Act by a dependent next of kin. Wiersma, 643 N.E.2d at 913. See also Ind. Code §
34-23-1-1 (Death from wrongful act or omission). Pecuniary loss is the foundation of a
wrongful death action, and the damages are limited to the pecuniary loss suffered by those
for whose benefit the action may be maintained. Wiersma, 643 N.E.2d at 911 (citations
omitted). Consequently, Wiersma stands for the proposition that the pecuniary loss rule has
been expanded in Indiana to include the recovery for loss of love and companionship in
wrongful death actions involving deceased adults. Id. at 913; Herriman, 887 F. Supp. at
1155; Necessary v. Inter-State Towing, 697 N.E.2d 73, 76 (Ind. Ct. App. 1998); Luider v.
Skaggs, 693 N.E.2d 593, 597 (Ind. Ct. App. 1998), trans. denied; Chamberlain v. Parks, 692
N.E.2d 1380, 1383 (Ind. Ct. App. 1998), reh'g denied, trans. denied.
The court in Herriman, however, relies on Wiersma to conclude that in an action
under the Child Wrongful Death Act, the proper measure of damages [is] the value of the
child's services from the time of injury until the child would have attained majority.
Wiersma, 643 N.E.2d at 912 (citations omitted) (emphasis added). This reliance is misplaced. The court in Wiersma was not presented with any question under the Child Wrongful Death Act. The court's sole issue in Wiersma was whether a dependent next of kin
could recover damages for loss of love, care and affection in a wrongful death action
involving a deceased adult. Wiersma, and our affirmation and adoption of it, does not stand
as any sort of precedent on the question of the measuring period for calculating damages in
child wrongful death cases.
Conclusion
Having previously granted transfer, we now summarily affirm the opinion of the
Court of Appeals pursuant to Ind. Appellate Rule 11(B)(3) and find that the Indiana Child
Wrongful Death Act, specifically Ind. Code § 34-23-2-1 (f) and (g), permits the recovery of
damages for the loss of a child's love and companionship with respect to the time from the
death of the child until the death of the child's last surviving parent.
The trial court and Court of Appeals are affirmed and this cause is remanded for
further proceedings.
SHEPARD, C.J., and DICKSON, and SELBY, J.J., concur. BOEHM, J. dissents with
opinion.
ATTORNEYS FOR APPELLANT
Richard P. Samek
Larry L. Barnard
Fort Wayne, Indiana
ATTORNEYS FOR AMICUS CURIAE
INDIANA DEFENSE LAWYERS ASSOCIATION
Norman T. Funk
Donald D. Levenhagen
Alan J. Irvin
Indianapolis, IndianaATTORNEYS FOR APPELLEE
John D. Ulmer
Craig M. Buche
Goshen, Indiana
ATTORNEY FOR AMICUS CURIAE
INDIANA TRIAL LAWYERS ASSOCIATION
Gregory H. Miller
Crawfordsville, Indiana
IN THE
SUPREME COURT OF INDIANA
DARCY J. ROBINSON, )
)
Appellant (Defendant below), ) Indiana Supreme Court
) Cause No. 02S03-9809-CV-482
v. )
)
ROBERT J. WROBLEWSKI and ANN ) Indiana Court of Appeals
WROBLEWSKI, ) Cause No. 29A03-9609-CV-341
)
Appellees (Plaintiffs below). )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Paul D. Mathias, Judge
Cause No. 02D01-9602-CT-51
ON PETITION TO TRANSFER
December 31, 1998
BOEHM, Justice, dissenting
The majority's careful analysis of the language of the statute and its legislative history leads
inescapably to the conclusion that the statute is internally inconsistent, and somebody failed at the
drafting stage to consider all of the implications of subsection (f) for other provisions of the statute.
The rest is guesswork. The majority offers one plausible explanation -- that the addition of psychiatric costs, etc., to the recoverable items was accompanied by a desire to limit these items to age
twenty-three as a political compromise, and the draftsperson simply overlooked the apparent
inconsistency with subsection (g). I find it equally plausible that some late night drafter intended to
embody a compromise that left in the new items of recoverable damage, but limited all items to age
twenty-three.
I cannot find anything in the statute that resolves this inconsistency or that points in the
direction of resolving this dispute in favor of either party. However, it seems to me that the
internal logic of the statute is more offended by the majority's result than by a literal reading of
subsection (f) to limit all damages under this section to age twenty-three for students and age
twenty for others. I reach this conclusion, fortified by some legal maxims, including strict construction of the statute in derogation of the common law, but in the face of those cited by the majority,
including the specific governs over the general. The result of the majority's view, however is that the
legislature intended the following results:
1) Economic loss from the loss of the child's services and out of pocket expenses for the
survivors' psychiatric care are not recoverable after age twenty three, but loss of love and
affection is recoverable beyond that time; and
2) A child who is killed at age 23 and one day is wholly not compensable, but loss of love
and affection from the death of that child's twin that occurs two days earlier is compensable
for the life of the parents.
It seems to me that these results are sufficiently bizarre that it is unlikely that the legislature would
have approved them. I would conclude that subsection (g) was inadvertently left in the statute when
subsection (f) was expanded to cover all damages recoverable under this section. The issue is
purely a matter of legislative policy, and the majority may well be correct in divining the legislature's
intentions. If so, this decision will stand. If not, the General Assembly can fix it.
Footnote: 1
Ind. Code § 34-23-2-1 (1998). At the time relevant to this case, this statute was found at
Ind. Code § 34-1-1-8. The language of the statute remains unchanged. For convenience, we will use
the current code location in this opinion.
Footnote: 2
For purposes of the Child Wrongful Death Act, a child is defined as an unmarried
individual without dependents who is less than twenty years of age; or, less than twenty-three years
of age and is enrolled in an institution of higher education or in a vocational school or program. Ind.
Code § 34-23-2-1(a) (1998).
Footnote: 3
The bill was also amended on several occasions to refine the entitlement to damages where
the deceased child's parents both did not have joint custody at the time of death. We omit discussion
of these changes as they do not appear to have any relationship to our inquiry.
Footnote: 4
The following legislative materials reflect the changes discussed here: Senate Bill No. 2,
105th Ind. Gen. Assembly (1987) (as introduced); Indiana Senate Journal, at 61, 399, 872 (1987);
Indiana House Journal, at 711, 799, 975, 1010 (1987).
Footnote: 5
The following legislative materials reflect the changes discussed here: Senate Bill No. 2,
105th Ind. Gen. Assembly (1987) (as introduced); Indiana Senate Journal, at 399, 872 (1987); Indiana
House Journal, at 711, 799, 975, 1010 (1987).
Footnote: 6
We read this as having the effect of making clear that all uninsured debts _ secured and
unsecured _ are recoverable.
Footnote: 7
The following legislative materials reflect the changes discussed here: Senate Bill No. 2,
105th Ind. Gen. Assembly (1987) (as introduced); Indiana Senate Journal, at 61, 399, 872 (1987);
Indiana House Journal, at 711, 975, 1010 (1987).
Footnote: 8
After the full House amended the bill, the Senate dissented and a conference committee was
appointed. Indiana Senate Journal, at 742, 750, 761 (1987)
Footnote: 9
The following legislative materials reflect the changes discussed here: Senate Bill No. 2,
105th Ind. Gen. Assembly (1987) (as introduced); Indiana Senate Journal, at 61, 399, 872 (1987);
Indiana House Journal, at 711, 975, 1010 (1987).
Footnote: 10
The following legislative materials reflect the changes discussed here: Senate Bill No. 2,
105th Ind. Gen. Assembly (1987) (as introduced); Indiana Senate Journal, at 61, 399, 872 (1987);
Indiana House Journal, at 711-12, 799, 975-76, 1010 (1987).
Footnote: 11
An amendment containing all of these provisions offered by Sen. Costas was adopted by
a vote of 25 yeas to 23 nays. Earlier, the Senate rejected by a vote of 33 nays and 15 yeas another
amendment by Sen. Costas that was identical in all respects except that the limitation on damages for
loss of love and companionship was capped at $50,000.
Footnote: 12
The House amendment contains the following language explaining the purpose of the
limitation on damages provision:
It is the purpose of this chapter to establish a public policy for the recognition
of the value of a child who has been wrongfully killed. The temporary limit
established by this chapter for the loss of love and companionship of a child is to
enable insurers of wrongdoers to phase in their experience tables and is for no other
stated purpose.
Indiana House Journal, at 799 (1987). This language was not retained in the final version of the bill.
Footnote: 13
While it could be argued that the measuring period only really became an issue after it
became clear that the damages cap would expire after several years, the risk of there being no damage
cap at all became clear early in the process _ in the Senate Judiciary Committee.
Footnote: 14
To make this point in more detail, if the change in the language of SECTION 1 of the bill
from subsection (d)(1) (now (e)(1)) to this section was intended, the drafter also would have had
not only to delete newly redesignated subsection (g) (containing the measuring period of damages
from loss of love and companionship) but also redesignate the following subsection (h) as subsection
(i).
Footnote: 15
[O]ne basis upon which subsection (g) can be explained is the situation where the child has
been placed with a custodian (perhaps a grandparent or adult sibling) with the child then predeceasing
the parents who subsequently die before the child would have attained twenty years of age. Despite
the fact that the guardian or custodian may have developed an affectionate bond with the minor child,
resulting in having sustained the lost love and companionship of the child, those damages cease with
the death of the last surviving parent. Thus, subsection (g) underscores the Legislature's view that
damages pursuant to subsection (e)(2) must cease with the death of the parents no matter who asserts
the loss. Herriman, 887 F. Supp. at 1157.
Footnote: 16
Robinson also relies on King for the proposition that the recovery for loss of a child's love
and companionship should be limited to the age of majority. King, 610 N.E.2d at 264 n.6. See also
Brief of Appellant at 18-19. However, as Robinson points out, the conclusions reached in King are
dicta and not binding. Koske v. Townsend Eng'g Co., 551 N.E.2d 437, 443 (Ind. 1990) (citing
Szilagyi v. State ex re. La Porte Community Sch. Corp., 249 Ind. 400, 410, 233 N.E.2d 181, 183
(Ind. 1968)) (In appellate opinions, statements not necessary in the determination of the issues
presented are obiter dictum. They are not binding and do not become the law.)
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