Robbie Lomax v. Jennie L. Michael

Oct 26 2015, 8:44 am

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brent Westerfeld W. Brent Threlkeld
Indianapolis, Indiana Indianapolis, Indiana

William M. Horne Kelly A. Roth
Indianapolis, Indiana Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Robbie Lomax, October 26, 2015
Appellant-Defendant, Court of Appeals Case No.
12A05-1503-CT-124
v. Appeal from the Clinton Superior
Court
Jennie L. Michael, The Honorable Justin H. Hunter,
Appellee-Plaintiff Judge
Trial Court Cause No.
12D01-1203-CT-210

Altice, Judge.

Case Summary

[1] Edward Lomax died as a result of injuries sustained after the bicycle he was

riding was struck from behind by a vehicle driven by Jennie Michael. Robbie

Lomax, individually and as Personal Representative of the Estate of Edward

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 Lomax (the Estate), filed a wrongful death action against Jennie. The trial

court granted partial summary judgment in favor of Jennie based on its

conclusion that Robbie does not qualify as a dependent next of kin to Edward

as required by Ind. Code § 34-23-1-1, otherwise known as the General

Wrongful Death Statute (GWDS). Finding no just cause for delay, the court

issued a final judgment against Robbie, individually. Robbie appeals, asserting

that the facts demonstrate he does qualify as a dependent next of kin, or, in the

alternative, that there is at least a question of fact as to whether he is a

dependent next of kin thus making summary judgment inappropriate.

[2] We reverse and remand.

Facts & Procedural History

[3] On December 24, 2010, Edward was riding his bicycle in the town of Frankfort

when he was struck from behind by a vehicle operated by Jennie. Edward died

two days later as a result of the injuries he sustained in the accident.

[4] Edward was Robbie’s uncle and Robbie’s last living relative on his Father’s side

of the family. Edward was not married and did not have any children. Edward

had lived in the same home with Robbie on and off since Robbie was a child.

Since approximately 2005 or 2006, Edward began living with Robbie and his

wife on a full-time basis. Robbie described his relationship with Edward as that

of a father and son.

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[5] While Edward lived with Robbie, Edward contributed financially to the

household. Edward received $700 each month in government assistance, of

which he regularly paid $400 to Robbie. According to Robbie, this money went

toward rent and utility bills. The rent for the home they lived in at the time was

$600 a month. During this timeframe, Robbie operated a local bar, which

eventually closed because it was not financially viable. Robbie then went to

work as an auto body repairman, but after two years, left the employment

because he was not being paid for his hours worked.

[6] In addition to the regular $400 contributions to the household, Edward would

make separate financial contributions to help cover grocery and other

miscellaneous expenses, especially during times when Robbie’s financial

situation was bleak. Edward also contributed to the household by helping to

take care of Robbie’s dogs and with household chores such as vacuuming and

dishes. Edward and Robbie would go on bike rides together and hang out in

the evenings.

[7] On December 2, 2011, Robbie was appointed to be the Personal Representative

of the Estate for the sole purpose of pursuing a wrongful death action.

Thereafter, Robbie filed a wrongful death action in both an individual capacity

and on behalf of the Estate on March 8, 2012. In the complaint, Robbie sought

damages “for hospital and medical expenses, funeral and burial expenses, lost

earnings, costs and expenses incurred in the administration of the estate and

prosecuting this complaint, including attorney fees, for pain and suffering, as

well as the loss and enjoyment of life, and for the loss of financial support, love,

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 and companionship he provided to his next of kin . . . .” Appellant’s Appendix at

11. Robbie alleged therein that he was Edward’s dependent next of kin.

[8] Jennie filed an Answer to the Complaint and subsequently filed a motion for

summary judgment on December 27, 2013, which the trial court denied. Jennie

filed a second motion for summary judgment on October 2, 2014, to which

Robbie responded. The trial court heard arguments from both parties and, on

February 25, 2015, issued its order granting partial summary judgment in favor

of Jennie. The court concluded that the evidence did not establish Robbie was

a dependent next of kin for purposes of the GWDS, and thus, dismissed Robbie

in his individual capacity from the action. Finding there was no just reason for

delay, the court entered final judgment against Robbie in his individual

capacity. See Ind. Appellate Rule 54(B). This appeal ensued. Additional facts

will be provided as necessary.

Discussion & Decision

[9] On appeal, Robbie does not challenge the court’s dismissal of him from the

action in his individual capacity, but rather challenges only the court’s

determination that he does not qualify as a dependent next of kin. This

determination is relevant because the wrongful death claim as between the

Estate and Jennie is still pending and if Robbie is found to be a dependent next

of kin, he could recover pecuniary damages related to Edward’s death.

[10] When reviewing a trial court’s ruling on summary judgment, we apply the same

standard as the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013).

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 Summary judgment is appropriate where there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Ind. Trial

Rule 56(C). Our review is limited to facts designated to the trial court. Meredith

v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013). All factual inferences are made in

favor of the non-moving party, and we resolve all doubts as to the existence of

an issue of material fact against the moving party. Manley, 992 N.E.2d at 673.

The appellant has the burden of demonstrating that the summary judgment

ruling was erroneous. Amaya v. Brater, 981 N.E.2d 1235, 1239 (Ind. Ct. App.

2013), trans. denied.

[11] The GWDS provides, in pertinent part:

When the death of one is caused by the wrongful act or omission
of another, the personal representative of the former may
maintain an action therefor against the latter . . . and the
damages shall be in such an amount as may be determined by the
court or jury, including, but not limited to, reasonable medical,
hospital, funeral and burial expenses, and lost earnings of such
deceased person resulting from said wrongful act or
omission. That part of the damages which is recovered for
reasonable medical, hospital, funeral and burial expense shall
inure to the exclusive benefit of the decedent’s estate for the
payment thereof. The remainder of the damages, if any, shall,
subject to the provisions of this article, 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. . . . [W]hen such decedent leaves no such widow,
widower, or dependent children, or dependent next of kin,
surviving him or her, the measure of damages to be recovered
shall be the total of the necessary and reasonable value of such
hospitalization or hospital service, medical and surgical services,
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 such funeral expenses, and such costs and expenses of
administration, including attorney fees.

I.C. § 34-3-1-1. Here, it is undisputed that Edward left no widow or dependent

children. In order for Robbie to recover under the GWDS, Robbie must

establish he is Edward’s dependent next of kin.

[12] We begin by noting that the purpose of the GWDS is to benefit survivors by

providing compensation for the loss of the decedent’s life. Luider v. Skaggs, 693

N.E.2d 593, 596 (Ind. Ct. App. 1998), trans. denied. Pecuniary loss is the

foundation of a wrongful death action. Id. This loss can be determined in part

from the assistance the decedent would have provided through money, services,

and other material benefits. Southlake Limousine & Coach, Inc. v. Brock, 578

N.E2d 677, 679 (Ind. Ct. App. 1991), trans. denied.

[13] Our Supreme Court has set a standard for dependency in the context of

wrongful death actions. The Court has stated that “proof of dependency must

show a need or necessity of support on the person alleged to be dependent . . .

coupled with the contribution to such support by the deceased.” New York Cent.

R.R. Co. v. Johnson, 127 N.E.2d 603, 607 (Ind. 1955); see also Deaconess Hosp., Inc.

v. Gruber, 791 N.E.2d 841, 845 (Ind. Ct. App. 2003) (describing the two-part test

to prove dependency as (1) a need or necessity of support on the part of the

alleged dependent; and (2) actual contribution to such support by the deceased).

This court has further explained:

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 Dependency is based on a condition and not a promise, and such
dependency must be actual, amounting to a necessitous want on
the part of the beneficiary and a recognition of that necessity on
the part of decedent, an actual dependence coupled with a
reasonable expectation of support or with some reasonable claim
to support from decedent. The mere fact that deceased
occasionally contributed to the support of the beneficiary in an
irregular way, is not sufficient to support the action . . . .

Wolf v. Boren, 685 N.E.2d 86, 88 (Ind. Ct. App. 1997) (quoting Kirkpatrick v.

Bowyer, 169 N.E.2d 409, 412 (Ind. App. 1960)), trans. denied. Total dependency

is not required. Deaconess Hosp., 791 N.E.2d at 846. In fact, a “plaintiff may be

partially dependent even though he could survive without the contribution

made by the deceased.” Id. (citing Lustick v. Hall, 403 N.E.2d 1128, 1131-32

(Ind. Ct. App. 1980)).

[14] In New York Central, a mother sought to recover pecuniary damages for the loss

of her adult daughter who lived with her for twenty-seven out of the twenty-

nine years of her life, although she was not living with the mother at the time of

her death. 127 N.E.2d at 605. The decedent, on either a weekly or bi-monthly

basis, gave her mother different amounts of money, depending upon the

decedent’s income, to pay for groceries, fuel, clothes, insurance, utilities,

medical bills, and to make part of a down payment on a home because the

decedent’s stepfather was not making enough to support himself and her

mother. Id. The Supreme Court held that the GWDS does not require that the

next of kin be totally dependent, and that the decedent need not have been

under a legal obligation to support the next of kin. Id. at 606-07. The Court

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 further held that the mother had sustained a pecuniary loss and that the

evidence of damages was of sufficient weight to justify the jury’s finding that the

decedent was under a legal civil duty to contribute to the support of her mother.

Id. at 607.

[15] In Necessary v. Inter-State Towing, 697 N.E.2d 73 (Ind. Ct. App. 1998), trans.

denied, decedent’s son filed a wrongful death action after his mother was killed

in an automobile accident. Decedent resided with her son and grandson for

several years preceding her death and they shared household expenses.

Decedent made regular financial and non-financial contributions to the

household. Even though the evidence also established that decedent’s son and

grandson could survive without the decedent’s contributions, the court held a

jury could have reasonably concluded that the familial and financial

relationship gave rise to a “partial and mutual dependency” between decedent

and her son and grandson. Id. at 78. The court therefore concluded that

summary judgment was improper.

[16] The same result follows here. We note that Edward regularly contributed a

significant portion of his monthly government benefits to help cover household

expenses. Edward was also helpful with household chores and on occasion

would make additional financial contributions to pay for other types of

expenses. And, even though Robbie never asked Edward to contribute, it

remains that Edward’s contribution was significant in terms of the costs

associated with maintaining Robbie’s household. Moreover, during the time

Edward lived with Robbie and his wife, Robbie and his wife struggled

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 financially in that they were dealing with a failing business and then a period of

non-payment of earned wages. Given the facts as designated to the court, a

reasonable trier of fact could conclude that Robbie was dependent on Edward,

at least in part, or that Robbie was not, in fact, a dependent next of kin to

Edward. A determination in this regard is a matter appropriately reserved for

the finder of fact. See id.; cf. Longest ex. rel Longest v. Sledge, 992 N.E.2d 221, 230

(Ind. Ct. App. 2013) (affirming the grant of summary judgment on ground that

parents of adult decedent were not dependent next of kin where decedent

contributed $50 to $100 per week to offset expenses of him living with his

parents because such contributions were not regular and amounted to “no more

than the sort of gifts, acts of generosity, and kindness to be expected of a son

still living under his parents’ roof”), trans. denied. Having concluded that

questions of fact exist as to whether Robbie is a dependent next of kin to

Edward, we reverse the trial court’s grant of partial summary judgment in favor

of Jennie and remand this matter to the trial court for further proceedings.

[17] Judgment reversed and remanded.

Riley, J., and Brown, J., concur.

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