Simultaneous Death and the Indiana Wrongful Death Statute: Resolving the Ambiguities of the Statute when the Order of Death is Ambiguous

by Jon Noyes (Attorney Profile)
Wilson Kehoe Winingham LLC
2859 N. Meridian St.
Indianapolis, IN 46208
(317) 920-6400
wkw.com

[Editor’s Note: This is the second article Jon Noyes has written for the Indiana Law Review Blog. You can find his first article here.]


Indiana’s adult wrongful death statutes group individuals into two categories:  (1) adults who were married, or possessed dependent next of kin, or both; [1] and (2) adults who were not married and possessed no dependent next of kin. [2].  Which category the decedent falls into determines the measure of damages available. [3].

Under normal circumstances, this does not present a substantial obstacle.  It is usually easy to determine whether or not the decedent was married or possessed dependent next of kin.  This can be as simple as looking at the decedent’s death certificate.  However, what if it is impossible to determine whether the decedent possessed a spouse or dependents at the time of his or her death?  For example, how would a married couple be categorized if they had no dependents and died in a manner that left it impossible to determine who predeceased who?  Can the plaintiff show that the decedent meets the requirement of either?

The answer is no.  As discussed below, if two individuals that would normally be considered adults that were married expire simultaneously or in a manner that makes it impossible to determine who predeceased who, the plain language of the Wrongful Death Statute seems to indicate that it would be impossible to determine which measure of damages apply.  However, under principles of equity, the personal representatives of the decedents should be able to recover damages as if both individuals left surviving spouses.

I.     THE INDIANA CODE PROVIDES NO GUIDANCE AS TO WHICH MEASURE OF DAMAGES APPLIES IN AN ACTION INVOLVING ADULT VICTIMS OF SIMULTANEOUS DEATH

As noted, Indiana possesses statutes measuring damages for adult victims of wrongful death. [4].  These statutes are mutually exclusive, meaning that under no circumstances can a person fall under more than one. [5].  Without these statutes, there is no cause of action for wrongful death available in Indiana. [6].  Neither statute acts as a “catch all;” rather, each has its own requirements that a decedent must meet in order to fall into a category. [7].

Like other states, Indiana recognizes a cause of action “[w]hen the death of one is caused by the wrongful act or omission of another.” [8].  The personal representative of the decedent may “maintain an action [] against the [tortfeasor], if the [decedent] might have maintained an action had he or she, as the case may be, lived, against the [tortfeasor] for an injury for the same act or omission.” [9].  If the decedent was married or possessed dependents at the time of death, the personal representative may recover compensation for the decedent’s medical bills, funeral expenses, estate and attorney fees, lost wages, and damages for guidance, training, consortium, loss, care, and affection. [10].  Damages not awarded for medical bills, expenses, or funeral costs inure directly to the decedent’s spouse and/or dependents. [11].  There is no statutory cap on these damages. [12].

On the other hand, if the decedent possessed no spouse or dependents and is not a child, then he or she is considered an “adult person.” [13].  Under those circumstances, the personal representative can recover for damages relating to medical bills, funeral expenses, estate and attorney fees, lost wages, and loss of love and companionship. [14].  Damages for lost wages and loss of love, care, and affection inure directly to non-dependent parents or children. [15].  However, damages for loss of love and companionship are capped at $300,000. [16].

As a result, the category the decedent is placed into is important to measuring the damages available in a wrongful death suit.  At first glance, this seems to be a simple issue of statutory construction.  The court gives meaning to the plain language of the statute unless doing so would lead to an absurd conclusion. [17].  The problem is that the statutes anticipate that the decedent’s status will be settled. [18].  It contemplates that the decedent was either married or had dependents or he or she did not. [19].

However, in cases of simultaneous death or where the order of death cannot be determined, it is impossible to place the decedents into a specific category.  If the order in which the decedents expired cannot be determined, then it cannot be said that they possessed a spouse at the time of their death.  It also cannot be said otherwise.  Thus, the statute is ambiguous as to which measure of damages apply in these situations.

II.     APPLICABLE PRINCIPLES OF EQUITY REQUIRE THAT PERSONAL REPRESENTATIVES BE ENTITLED TO RECOVER DAMAGES AS IF THE VICTIMS OF SIMULTANEOUS DEATH BOTH POSSESSED DEPENDENTS OR SPOUSES

There are three possible solutions to the problem of simultaneous death.  First, the court could hold that each party must be considered an “adult person” under the statute and have their damages capped.  Second, the court could hold that one decedent should be considered an “adult person” and one should not.  Third, the court could find that neither decedent should be considered an “adult person.”  The third solution makes the most sense and is likely best supported by the case law.

Holding that each decedent should be considered an “adult person” would be factually incorrect and patently unfair.  In situations where order of death simply cannot be determined, then it should be undisputed that one married decedent predeceased the other.  Conversely, where both married decedents expire at the same time, both of them technically had a spouse at the moment of death as well.  It, therefore, would be factually incorrect to hold that they both were “adult persons.”

Moreover, in both situations, holding that they were both “adult persons” would serve to reward the tortfeasor for killing both decedents instead of just one.  Indeed, if the tortfeasor killed one of the spouses, but not the other, then the surviving spouse could bring suit against the tortfeasor and recover unlimited damages for guidance, training, consortium, loss, care, and affection. [20].  However, if the tortfeasor kills both spouses at the same time, then the personal representative of both estates can collectively recover no more than a $600,000 for the same element of damages. [21].  Thus, it would be financially advantageous to the tortfeasor to cause the death of two individuals instead of just one if the individuals will both be considered “adult persons.”  This offends notions of fairness and justice.

Categorizing one married decedent as an “adult person” and the spouse as not an “adult person” under the statute would not work in practice.  Who would determine which decedent should be considered an “adult person” when the potential damage recovery for one decedent is higher than the other?  What would be the criteria?  Because the determinative fact – the order of death – cannot be discovered, the decision would have to rest on something arbitrary.    This, again, offends notions of fairness and justice.

Categorizing neither as “adult persons” makes the most sense and is supported by the case law.  In real situations of simultaneous death, it is the factually correct option.  It also avoids the problem of arbitrarily limiting the recovery of one married decedent, but not the other.  Most importantly, it would not allow a party to profit from his or her own negligence.  This, in particular, is something that the Supreme Court of Indiana seemed to put significant weight on in a similar case:  Bemenderfer v. Williams[22].

In that case, the decedent died as a result of medical malpractice. [23].  Her husband served as the personal representative in the wrongful death case that followed. [24].  During litigation, the decedent’s husband died. [25].  Afterwards, the defendant health care provider filed for partial summary judgment arguing that the decedent should be considered an “adult person” because her husband did not survive until judgment. [26].  On appeal, the court held that it would be improper to consider the decedent an “adult person.” [27].  It based its holding largely on the idea that “[t]he 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 defendant’s own wrongdoing.” [28].  The same equitable principles apply in simultaneous death situations.

In sum, simultaneous death presents a rare, but interesting problem for wrongful death plaintiffs.  The plain language of the statutes do not provide any guidance as to the measure of damages that applies. [29].  Thus, a court encountering this issue should apply relevant principles of equity and case law.  In doing so, it should find that both decedents are entitled to the full, uncapped measure of damages available under the Indiana Wrongful Death Act.


 

[1].  IND. CODE § 34-23-1-1 (2015).

[2].  Id. § 34-23-1-2.

[3].  See id. §§ 34-23-1-1, 34-23-1-2 (damages available under section 2 are more limited than section 1).

[4].  See id.

[5].  See McCabe v. Comm’r, Indiana Dept. of Ins., 949 N.E.2d 816, 820-21 (Ind. 2011).

[6].  Forte v. Connerwood Healthcare, Inc., 745 N.E.2d 796, 800 (Ind. 2001).

[7].  See IND. CODE §§ 34-23-1-1, 34-23-1-2 (2015).

[8].  Id. § 34-23-1-1.

[9].  Id.

[10].  Id.

[11].  Id.

[12].  Id.

[13].  Id. § 34-23-1-2(a).

[14].  Id. § 34-23-1-2(c)(3).

[15].  Id. § 34-23-1-2(d).

[16].  Id. § 34-23-1-2(e).

[17].  Thompson v. Ferdinand Sesquicentennial Comm., Inc., 637 N.E.2d 178, 180 (Ind. Ct. App. 1994).

[18].  See IND. CODE §§ 34-23-1-1, 34-23-1-2 (2015).

[19].  See id.

[20].  See id. § 34-23-1-1.

[21].  See id. § 34-23-1-2.

[22].  Bemenderfer v. Williams, 745 N.E.2d 212 (Ind. 2001).

[23].  Id. at 214.

[24].  Id. at 215.

[25].  Id.

[26].  Id.

[27].  Id. at 218.

[28].  Id.

[29].  See IND. CODE §§ 34-23-1-1, 34-23-1-2 (2015).

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