James T. Horejs, James Harris, and Robert Horejs, as Co-Administrators of the Estate of Laura A. Shaner v. Albert Milford, D.O., St. Margaret Mercy Healthcare Centers, Inc.

FILED
Jun 14 2018, 5:41 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE:
ST. MARGARET MERCY
Timothy S. Schafer
HEALTHCARE CENTERS, INC.
Timothy S. Schafer, II
Todd S. Schafer Libby Yin Goodknight
Krieg DeVault LLP
Schafer & Schafer
Indianapolis, Indiana
Merrillville, Indiana
Julie A. Rosenwinkel
Shannon L. Noder
Krieg DeVault LLP
Merrillville, Indiana

ATTORNEY FOR APPELLEE:
ALBERT MILFORD, D.O.
Jason A. Scheele
Rothberg Logan & Warsco LLP
Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE:
TRC-INDIANA, LLC
Leslie B. Pollie
Travis W. Montgomery
Kopka Pinkus Dolin PC
Carmel, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Court of Appeals of Indiana | Opinion 45A03-1709-CT-2173 | June 14, 2018 Page 1 of 8
 James T. Horejs, James Harris, June 14, 2018
and Robert Horejs, as Co- Court of Appeals Case No.
Administrators of the Estate of 45A03-1709-CT-2173
Laura A. Shaner, Deceased, Appeal from the Lake Superior
Appellants-Plaintiffs, Court
The Honorable Diane Kavadias
v. Schneider, Judge
Trial Court Cause No.
Albert Milford, D.O., St. 45D11-0711-CT-195
Margaret Mercy Healthcare
Centers, Inc., and TRC-Indiana,
LLC d/b/a Comprehensive
Renal Care-Munster d/b/a
DaVita, Inc.,
Appellees-Defendants

Vaidik, Chief Judge.

[1] Indiana’s general wrongful-death statute, Indiana Code section 34-23-1-1,

establishes two categories of damages—what we will call “final-expense

damages” and “survivor damages.” The statute provides that if the decedent is

not survived by a spouse, dependent children, or dependent next of kin, the

decedent’s personal representative can recover, on behalf of the decedent’s

estate, only final-expense damages: medical expenses related to the decedent’s

last illness or injury; funeral and burial expenses; and expenses of administering

the estate and pursuing the wrongful-death action, including a reasonable

attorney’s fee. If the decedent is survived by a spouse, dependent children, or

dependent next of kin, the decedent’s personal representative can recover both

the final-expense damages on behalf the decedent’s estate and survivor
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 damages, including lost earnings of the decedent, on behalf of the statutory

beneficiary/ies.

[2] This appeal presents the issue of what happens when one of the statutory

beneficiaries enumerated in the statute (in this case, a spouse) survives the

wrongful-death decedent but then dies himself while the wrongful-death action

is still pending—that is, what happens when the survivor who would have

collected the survivor damages has ceased being a “survivor”? Our Supreme

Court addressed this question in Bemenderfer v. Williams, 745 N.E.2d 212 (Ind.

2001), where a man named Hoy Sturgeon survived his wife Dorothy and filed a

wrongful-death action but then died himself before the action had concluded.

The question was whether Hoy’s claim for survivor damages could be carried

on by the elderly couple’s daughter, who, as Hoy’s heir, stood to ultimately

recover the damages. The Court held that she could.

[3] Here, as in Bemenderfer, a husband filed a wrongful-death action after the death

of his wife but then died himself while the action was still pending. However,

there is one key difference—the husband died without any heirs, so that any

survivor damages recovered on his behalf would ultimately pass (“escheat”) to

the state. We must decide whether the deceased husband’s/beneficiary’s claim

for survivor damages can be carried on under these circumstances. We hold

that it cannot.

[4] The alleged wrongful-death decedent in this case is Laura Shaner, who died in

January 2006. In November 2007, Laura’s husband David, individually and on

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 behalf of Laura’s estate (“Laura’s Estate” or “the Estate”), sued Dr. Albert

Milford, St. Margaret Mercy Healthcare Centers, Inc., and TRC-Indiana, LLC

d/b/a Comprehensive Renal Care-Munster d/b/a DaVita (“the Providers”).

David alleged that the Providers had been negligent in their care of Laura and

caused her death. His complaint included a claim for the following survivor

damages under the wrongful-death statute:

loss of [Laura’s] earnings and wages, loss of additional
employment benefits which he enjoyed as a result of said
[Laura’s] employment, loss of the reasonable value of [Laura’s]
services, and further, the loss of love, affection, companionship,
society and support as well as protection provided by [Laura] to
[David].

Appellants’ App. Vol. II p. 53.

[5] While the case was still pending, David himself died, leaving no will and no

heirs (David and Laura didn’t have any children, and David’s mother, who

would have been his only heir, died at the same time as he did). Laura’s Estate

continued prosecuting the lawsuit relating to Laura’s death, but David’s death

prompted the Providers to file a motion for partial summary judgment. They

asserted that because David died without heirs, any survivor damages he would

have received in relation to Laura’s death (had he lived) would now instead

pass to the state under Indiana Code section 29-1-2-1(d)(8), “would not

compensate any party who suffered a pecuniary loss due to the death of Laura

Shaner as contemplated under the Wrongful Death Statute,” and “would only

serve as punishment to Defendants.” Id. at 32-45. The Providers argued that

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 Laura’s Estate should not be able to recover such damages and should be

limited to the final-expense damages outlined in the wrongful-death statute.

The trial court granted the Providers’ motion, and Laura’s Estate appeals. We

review motions for summary judgment de novo. Hughley v. State, 15 N.E.3d

1000, 1003 (Ind. 2014).

[6] Laura’s Estate contends that it should be able to pursue David’s survivor

damages under our Supreme Court’s decision in Bemenderfer. The Estate

correctly notes that the Bemenderfer Court’s stated holding was that “the

wrongful death statute does not operate to preclude the statutory beneficiary

who dies before judgment from recovering wrongful death damages.” 745

N.E.2d at 215. The Estate argues that because this passage says nothing about

the statutory beneficiary leaving an heir who would ultimately collect the

beneficiary’s survivor damages, it can continue David’s claim for such damages

even though he had no heirs and those damages would eventually pass to the

state. We disagree.1

[7] As we noted at the outset, the statutory beneficiary who died in Bemenderfer,

Hoy Sturgeon, did have an heir, and that fact was central to the Supreme

Court’s decision. In holding that Hoy’s daughter, as his heir, could continue

1
Laura’s Estate also asserts that David did, in fact, have an heir: a Pennsylvania woman named Aileen
Waltman. However, the first mention of Ms. Waltman was in an affidavit attached to a motion to reconsider
filed by Laura’s Estate a month after the trial court’s summary-judgment order. The trial court rejected that
affidavit as untimely, and Laura’s Estate doesn’t challenge that ruling on appeal, so we must proceed as
though David died without heirs.

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 Hoy’s quest for survivor damages arising from the death of his wife Dorothy,

the Court explained:

Hoy was eighty-two and suffering from Alzheimer’s and
Parkinson’s when his wife died. He lost his life-long companion
and caregiver. When Dorothy died, Hoy was placed in a nursing
home and soon deteriorated to the point that he could not
comprehend his wife’s death and lost all will to live. This human
tragedy was compounded by its financial effect. Hoy’s estate
was depleted by the additional expenses, and this loss was
ultimately visited on his heirs. The 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. At least under these
circumstances, the very purpose of the law invoked by
Bemenderfer—compensation of pecuniary loss—is furthered by
allowing recovery.

Bemenderfer, 745 N.E.2d at 218 (emphasis added). The emphasized language

(which Laura’s Estate was careful to exclude from its brief) shows that the

Court’s holding turned on Hoy having an heir who would suffer a pecuniary

loss if she couldn’t recover the survivor damages Hoy himself would have

recovered if he had lived until the wrongful-death case was wrapped up. That

is, the holding turned on the fact that an heir of the deceased statutory

beneficiary would receive a smaller inheritance absent an award of survivor

damages.

[8] Here, because David left no heirs, there is no one left who can say that they will

receive a smaller inheritance—that they would suffer a “pecuniary loss”—if

David’s claim for survivor damages is terminated. In another case decided the

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 same day as Bemenderfer, the Supreme Court reaffirmed that the purpose of the

wrongful-death statute is to compensate for pecuniary loss caused by the death

of the decedent, not to punish the defendant. Durham ex rel. Estate of Wade v. U-

Haul Int’l, 745 N.E.2d 755, 763-64 (Ind. 2001). Requiring the Providers to pay

survivor damages in this case—damages that would simply pass to the state—

would serve only to punish the Providers.

[9] Laura’s Estate maintains that the Providers will “avoid accountability” if they

don’t have to pay survivor damages. Appellants’ Rev. Br. p. 14. That may be

true, but it is consistent with the wrongful-death statute, which specifically

contemplates that some fortunate defendants will not have to pay survivor

damages. The legislature could change the statute so that all defendants are

treated the same, but it has so far chosen not to do so.

[10] Laura’s Estate also asserts that our holding will give wrongful-death defendants

an incentive to “continue and delay cases as long as possible with the hopes that

the statutory beneficiary will die.” Id. But that is true only if the statutory

beneficiary has no heirs—as established in Bemenderfer, an heir of a statutory

beneficiary can pursue that beneficiary’s claim for survivor damages even if the

beneficiary dies while the claim is still pending. Moreover, a statutory

beneficiary can usually avoid having no heirs. Here, David could have created

heirs—and kept the Providers on the hook for survivor damages—simply by

executing a will. He didn’t, so he has no heirs, and any survivor damages

would pass to the state. That would be contrary to the compensatory purpose

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 of the wrongful-death statute. Therefore, we affirm the trial court’s grant of the

Providers’ motion for partial summary judgment.

[11] Affirmed.

Barnes, J., and Pyle, J., concur.

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