ATTORNEYS FOR APPELLANT
Karl L. Mulvaney
Nana Quay-Smith
Daniel R. Fagan
Candace L. Sage
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES
Scott R. Severns
Indianapolis, Indiana
Thomas R. Ruge
Brian A. Statz
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
KATHLEEN LYNN BEMENDERFER, )
M.D., )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S02-0005-CV-296
LOIS EMOGENE WILLIAMS, )
Personal Representative of the Estate of ) Indiana Court of Appeals
HOY STURGEON, Deceased, and ) Cause No. 49A02-9808-CV-63
LOIS EMOGENE WILLIAMS, )
Administratrix of the Estate of )
DOROTHY L. STURGEON, Deceased, )
)
Appellees (Plaintiffs Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Thomas J. Carroll, Judge
Cause No. 49D06-9410-CT-1776
__________________________________________________________________
ON PETITION TO TRANSFER
__________________________________________________________________
April 10, 2001
BOEHM, Justice.
We hold that the wrongful death statute does not operate to preclude
the statutory beneficiary who dies before judgment from recovering wrongful
death damages. And, as we also held today in Durham v. U-Haul
International, ___ N.E.2d ___ (Ind. 2001), under the wrongful death statute
loss of consortium damages may be recovered beyond the date of death of the
injured spouse for the life expectancy of the deceased spouse or surviving
spouse, whichever is less.
Facts and Procedural Background
In 1991, Dorothy Sturgeon shared her home with her eighty-year-old
husband, Hoy Sturgeon, who suffered from both Parkinson’s disease and
Alzheimer’s disease. In March of that year, Dorothy contacted her family
physician about postmenopausal bleeding. She was referred to Dr. Kathleen
Bemenderfer, who performed a dilation & curretage (D & C). The bleeding
did not ease, and Dorothy was again referred to Bemenderfer in December of
1992. Bemenderfer recommended another D & C, a hysterectomy, and a
laparoscopic examination.[1] A laparoscopy was performed on an outpatient
basis on December 21. Lois Emogene Williams, Dorothy’s daughter, cared for
her mother after the surgery. The day after the procedure, Williams
contacted Bemenderfer’s office to report that Dorothy was continually
vomiting and complaining of pain. She was not allowed to speak directly to
Bemenderfer, but Bemenderfer prescribed a different pain medication. The
following day, Williams called an ambulance because Dorothy’s lips and
fingernails were blue, her skin was clammy, and Williams believed she had
gone into shock. Dorothy had emergency surgery, but died early the next
morning on December 24. The surgeon determined that Bemenderfer had
punctured Dorothy’s colon during the laparoscopy, leaving a one-centimeter
hole through which feces passed into her abdominal cavity. Hoy and
Williams filed a proposed medical malpractice complaint with the Indiana
Department of Insurance on June 3, 1993, and filed this action in Marion
Superior Court on October 21, 1994.
Since Hoy’s diagnosis of Alzheimer’s in 1990, Dorothy had cared for
Hoy in their home. When she died, Hoy was admitted to a nursing home. Hoy
did not fare well at the home. He was unable to understand that his wife
had died, and spent his time wandering the halls searching for Dorothy and
calling out her name. His health steadily deteriorated, culminating in his
death on April 9, 1995. Williams was the Sturgeons’ only child and is the
personal representative of both of their estates. Williams was substituted
as the plaintiff in Hoy’s action after his death.
After Hoy died, Bemenderfer moved for partial summary judgment,
alleging that under the wrongful death statute Dorothy’s estate is entitled
only to Dorothy’s medical, hospital, funeral, and burial expenses. She
contended that all other items of damage were foreclosed by Hoy’s death
prior to the date of judgment. Bemenderfer also contended that Hoy’s
estate may recover on the loss of consortium claim only for the three days
between Dorothy’s surgery and her death because a loss of consortium claim
does not survive beyond the date of the injured spouse’s death.
The trial court initially granted Bemenderfer’s motion. Upon
reconsideration, however, the trial court vacated its ruling. The Court of
Appeals affirmed the denial of partial summary judgment, concluding that:
(1) the death of a surviving beneficiary during the pendency of a lawsuit
does not limit wrongful death damages to medical, hospital, funeral,
burial, and administrative expenses; and (2) loss of consortium damages are
recoverable beyond the date of the injured spouse’s death when death is the
result of the tortfeasor’s negligence. Bemenderfer v. Williams, 720 N.E.2d
400, 407-08 (Ind. Ct. App. 1999). [2]
Standard of Review
On appeal, the standard of review of a denial of a motion for partial
summary judgment is the same as that used in the trial court. Premier
Invs. v. Suites of America, Inc., 644 N.E.2d 124, 127 (Ind. 1994). Summary
judgment is appropriate only where the evidence shows that there is no
genuine issue of material fact and that the moving party is entitled to a
judgment as a matter of law. Ind.Trial Rule 56(C); Shell Oil v. Lovold
Co., 705 N.E.2d 981, 983-84 (Ind. 1998). All facts and reasonable
inferences drawn from those facts are construed in favor of the nonmoving
party. T.R. 56(H); Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434
(Ind. 1993).
I. Beneficiaries Under the Wrongful Death Statute
Williams argues that the plain language of the wrongful death statute
requires only that the statutory beneficiary survive the wrongful death
victim in order to recover for wrongful death. Bemenderfer counters with
case law stating that a beneficiary must survive until judgment in order to
recover under the statute if damages are not to be limited to reasonable
medical, hospital, funeral, and burial expenses.
In 1904, the Court of Appeals addressed the same issue under the
general wrongful death statute in force at that time and held:
Unless at the commencement of the action, and also at the time of
awarding the damages, there be living some person or persons of whom
it can be said that the law implies damage from the death of the
plaintiff’s decedent, or who, being next of kin to him, may be said to
have suffered pecuniary loss through his death, there can be no
recovery under the statute.
Dillier v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 34 Ind. App.
52, 57, 72 N.E. 271, 273 (1904). In Dillier, the deceased’s wife survived
him and commenced a wrongful death action, but died before verdict.
Although the wife had three surviving brothers, a jury concluded that his
wife was the only one dependent on him for support. The court concluded
that the wife was the only person statutorily entitled to recovery.
Because she was no longer living at judgment, there were no beneficiaries
for whom the wrongful death action could be maintained. Id. at 57, 72 N.E.
at 273-74.
Several cases have since cited Dillier for the proposition that the
surviving beneficiary’s right to wrongful death damages abates if the
beneficiary dies before verdict. Wabash R.R. Co. v. Gretzinger, 182 Ind.
155, 169, 104 N.E. 69, 75 (1914) (“[A] cause of action under the statute .
. . in favor of a sole beneficiary would not survive the death of such
person.”); Thomas v. Eads, 400 N.E.2d 778, 781 (Ind. Ct. App. 1980);
Shipley v. Daly, 106 Ind. App. 443, 447-48, 20 N.E.2d 653, 655-56 (1939);
Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Reed, 44 Ind. App.
635, 643-45, 88 N.E. 1080, 1082 (1909). Only one of these cases, Shipley,
addressed the precise issue presented by this case and Dillier. In
Shipley, as in Dillier, the Court of Appeals denied recovery on behalf of a
surviving spouse who died before trial. 106 Ind. App. at 447-48, 20 N.E.2d
at 655. The disposition of the other three cases did not turn on an
analysis of Dillier’s holding that a beneficiary must survive until
judgment.[3]
In 1891, the Court of Appeals held that under the survival statute the
action of a father for the wrongful death of a child does not abate upon
his death. Pennsylvania Co. v. Davis, 4 Ind. App. 51, 54-55 (1891). Davis
dealt with the same sections of the survival statute that Dillier
addressed, but nevertheless concluded that the executrix could continue the
action. There is no significant distinction between the child wrongful
death statute and the general wrongful death statute for these purposes.
In Jeffersonville, Madison & Indianapolis Railroad Co. v. Hendricks, 41
Ind. 48, 75-76 (1872), this Court approved a jury instruction that
provided: “[T]he death of one or more of [the victim’s] children occurring
after suit is brought, although such deceased children may have left
children of their own, does not abate the suit . . . .” The Court went on
to explain that the action would abate if there were no surviving spouse,
children, or next of kin, but that the shares of any deceased daughters
would simply pass to their off-spring. Id. at 77. Thus, this Court
appears to have assumed that the only requirement to take under the
wrongful death statute is that the beneficiary survive the wrongful death.
Given this conflict, we do not find a consistent body of decisional law
that suggests legislative satisfaction with Dillier. In this respect, the
courts’ handling of this issue is unlike the consistent judicial
interpretation we found present in Durham v. U-Haul International, ___
N.E.2d ___, ___ (Ind. 2001).
The statute has been amended since Dillier. The wrongful death
statute now reads in relevant part:
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 . . . 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. If such decedent depart this life leaving no such widow or
widower, or dependent children or dependent next of kin, surviving her
or him, the damages inure to the exclusive benefit of the person or
persons furnishing necessary and reasonable hospitalization or
hospital services . . . .
Ind.Code § 34-23-1-1 (1998).
These changes also suggest that Dillier rests on reasoning that is not
persuasive under the current statutory scheme. First, the phrase “if such
decedent depart this life [without statutory beneficiaries]” was added in
1933 as a proviso dealing with the disposition of a decedent’s assets in
the absence of survivors. Ind.Code Ann. § 34-1-1-2 (West 1983), Historical
Note, superseded by § 34-23-1-1. It applies only if the decedent leaves no
spouse or dependent beneficiaries. If there is a surviving spouse or
dependent, “the remainder of the damages” after expenses inures to the
benefit of the surviving spouse or dependent beneficiary. Since 1852, it
has been the general rule in Indiana that the wrongful death action may be
brought by the personal representative and that damages “inure to the
benefit of the widow and children, if any.” 2 G. & H. 330, § 784 (1870).
There is no suggestion in this version of the statute that the cause of
action expires if the surviving spouse or beneficiary dies before the
wrongful death action is prosecuted to its conclusion.
The wrongful death statute addressed by the Dillier court did not
contain that provision. The court concluded that, because the statute was
in derogation of the common law, the statute could not be extended beyond
“the legitimate meaning of the words employed,” and that if the right of
the beneficiary to bring the action were to continue, this right would have
to be expressly provided by statute. Dillier, 34 Ind. App. at 58-59, 72
N.E.2d at 273-74. The language of the statute now expressly suggests that
survival of the statutory beneficiary to the wrongful death victim’s death,
and not until judgment, is a prerequisite to recovering damages under the
statute.
Second, Dillier relied on the fact that under the survival statute at
that time, a cause of action for personal injury did not survive beyond the
death of the wrongdoer. Thus, the court reasoned, it would not make sense
for a cause of action to survive beyond the death of the beneficiary
either. Id. at 58-59, 72 N.E. at 273-74. Whatever the merits of this
logic, its premise is no longer valid. Under the current survival statute,
defendant’s death ordinarily has no effect on the plaintiff’s right to
maintain the action. See Ind.Code § 34-9-3-1 (1998) (actions for libel and
slander, among others, are exceptions to the rule that a cause of action
accruing before the death of the plaintiff or defendant survives). Dillier
relies on reasoning no longer persuasive in view of subsequent legislative
amendments to the Wrongful Death Act.
Bemenderfer argues that, because the purpose of the wrongful death
statute is to compensate those who have suffered pecuniary loss rather than
to punish wrongdoers, policy dictates that there should be no recovery
where there is no remaining spouse or dependent beneficiary. Dillier
shared this concern, concluding that allowing recovery after the death of
the beneficiary would mean that damages would inure to the benefit of
someone not contemplated by the statute. 34 Ind. App. at 57, 72 N.E. at
273. Williams responds that it would run counter to public policy to allow
an elderly or infirm person’s short life-expectancy to inure to the benefit
of a tortfeasor. Williams also points out that permitting the death of the
plaintiff to terminate the claim creates an incentive for tortfeasors and
their insurers to stall litigation in the hopes that the beneficiary will
die before judgment.
We agree with Williams that the policy concerns cited by the parties
are at least in equipoise, and perhaps favor Williams. The circumstances
of this case illustrate that point. 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. The wrongful death defendant should not be allowed
to avoid compensation to a beneficiary merely because the beneficiary, as
an elderly person profoundly affected by the death of a spouse, is more
vulnerable than the average person. It is a staple of tort law that the
tortfeasor takes her victim as she finds him. E.g., Botek v. Mine Safety
Appliance Corp., 611 A.2d 1174, 1177 (Pa. 1992).
Requiring that the beneficiary survive to the date of judgment would
also create a cut-off that is arbitrary and unsupported by statute. The
survivor statute was enacted in the same law that contained the wrongful
death statute. It provides: “[I]f an individual who is entitled or liable
in a cause of action dies, the cause of action survives and may be brought
by or against the representative of the deceased party . . . .” Ind.Code §
34-9-3-1 (1998). Thus, the plain language of the survival statute tells us
that a cause of action, once accrued, does not abate. The survival statute
and the wrongful death statute must be construed together. There is
nothing in the wrongful death statute that contravenes the direction of the
survival statute that Hoy’s claim, once accrued, survived. Nor does
Bemenderfer point to anything in either the wrongful death statute or
survival statute that suggests that survival to verdict is a prerequisite
to recovery contemplated by the legislature. As with statutes of
limitations, it is uniquely within the legislature’s power to establish a
cut-off if it determines that a cut-off is reasonable. Because the plain
language of the statute requires only that the beneficiary survive the
wrongful death victim and because in our view policy concerns advise in
favor of allowing Hoy’s estate to prosecute his claim, we hold that the
statutory beneficiary’s claim does not abate if death ensues prior to
verdict.
In sum, the legislature is of course free to limit recovery to
statutory beneficiaries who survive until judgment, as Bemenderfer urges.
But we conclude that it has not done so. Because we conclude that Hoy’s
damages did not abate upon his death, and because, as an heir, Williams
stands to recover those damages, we do not address the Court of Appeals’
conclusion that Dillier establishes that Williams may bring a separate
action to recover her pecuniary losses. Bemenderfer, 720 N.E.2d at 405.
It is also unnecessary to address the Court of Appeals conclusion that
because Hoy could have proceeded directly under the Medical Malpractice
Act, his claim survives his death under the survival statute. Id. at 407.
II. Loss of Consortium
Williams maintains that loss of consortium damages should be assessed
for the period of time between Dorothy’s death and Hoy’s death.
Bemenderfer claims that to the extent loss of consortium damages are
appropriate, they may be recovered only for the three days between
Dorothy’s surgery and her death because a loss of consortium claim does not
continue beyond the date of the injured spouse’s death.
As we explained today in Durham v. U-Haul International, although the
common law rule may have been that loss of consortium damages are not
recoverable after the date of the injured spouse’s death, loss of
consortium damages have long been recoverable beyond this date under the
wrongful death statute. ___ N.E.2d ___, ___ (Ind. 2001). As a matter of
common law, the loss of consortium claim is extinguished upon Dorothy’s
death because the wrongful death statute provides the sole basis for
recovery for a death caused by the defendant. But under the wrongful death
statute, a surviving spouse may recover damages beyond the date of the
death if caused by the tortfeasor. Thus, Hoy or his successor in interest
is entitled to recover loss of consortium damages as a common law claim for
December 21, 1992 to December 24, 1992 and under the wrongful death statute
for the period from December 24, 1992 to the end of his life expectancy as
of that date.
Conclusion
We affirm the trial court and remand for proceedings consistent with
this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] A laparoscopic examination is a procedure by which a fiber-optic
instrument is inserted through an incision in the abdominal wall in order
to examine the interior of the peritoneal cavity.
[2] We note that the proper procedure to arrive at this Court was not
followed here. The trial court denied Bemenderfer’s motion for partial
summary judgment. In order to appeal from a denial of a motion for partial
summary judgment, the trial court is required to certify its order for
interlocutory review and the Court of Appeals must accept jurisdiction
pursuant to Appellate Rule 4(B) (now App. R. 5). Here, the parties
provided and the trial court signed an “Agreed Final Judgment and Agreement
Preserving the Issue of the Appropriate Measure of Damages” in an attempt
to create a final appealable judgment pursuant to 54(B). An “Agreed
Judgment” represents an agreement of the parties, not a judgment of the
court. Thus, absent fraud, it is not appealable. See, e.g., State v.
Huebner, 230 Ind. 461, 467-68, 104 N.E.2d 385, 387-88 (1952). But because
it is clear that the trial court intended for its order to be appealable
and the Court of Appeals, by issuing an opinion, has accepted appellate
review of the trial court’s order, we exercise our discretion to ignore
this procedural irregularity because only further delay in the disposition
of this matter would be generated by sending it back to the trial court for
proper certification. Cf. Polk v. State, 683 N.E.2d 567, 569 n.3 (Ind.
1997) (exercising inherent authority and addressing merits of case even
though jurisdiction as direct appeal was lacking because sentence was not
greater than fifty years).
[3] In Gretzinger, this Court held that the wrongful death action did not
abate as a result of the widow’s remarriage. 182 Ind. at 169-70, 104 N.E.
at 75. Reed is a case in which the wrongful death victim was survived by
children, but not a spouse and deals with the propriety of certain jury
instructions. 44 Ind. App. at 635, 88 N.E. at 1080. Thomas, the only case
citing Dillier since 1939, does not persuade us otherwise. In Thomas, both
the wrongful death victim and the beneficiary died as a result of the same
car accident, but the beneficiary “survived” the wrongful death victim by
one half hour. 400 N.E.2d at 779.