ATTORNEY FOR APPELLANT
Scott A. Benkie
Indianapolis, Indiana
AMICUS CURIAE
INDIANA TRIAL LAWYERS ASSOCIATION
Jerry Garau
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Michael C. Peek
Rodney V. Taylor
Indianapolis, Indiana
Geoffrey L. Blazi
Stephen R. Pennell
Lafayette, Indiana
AMICUS CURIAE
DEFENSE TRIAL COUNSEL OF INDIANA
James D. Johnson
Angela L. Freel
Evansville, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
BARRY DURHAM and BILL WADE, )
on behalf of the ESTATE OF KATHY )
WADE, and BARRY DURHAM as )
natural guardian for AMY DURHAM )
and JASON DURHAM, and BILL )
WADE, individually, ) Indiana Supreme Court
) Cause No. 49S02-0005-CV-294
Appellants/Cross Appellees )
(Plaintiffs Below), )
) Indiana Court of Appeals
v. ) Cause No. 49A02-9811-CV-940
)
U-HAUL INTERNATIONAL et al., )
)
Appellees/Cross Appellants )
(Defendants Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard H. Huston, Judge
Cause No. 49D10-9704-CT-0504
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
April 10, 2001
BOEHM, Justice.
We adhere to precedent that punitive damages are not recoverable in
an action brought under the wrongful death statute. We also hold that the
wrongful death statute provides the only remedy against a person causing
the death of a spouse and there is no independent claim against this person
for loss of consortium. Finally, we hold that loss of consortium damages
against a person causing the death of a spouse are not cut off by the death
of that spouse. Rather, they are to be measured by the life expectancy of
the deceased spouse or the surviving spouse, whichever is shorter.
Factual and Procedural Background
On June 8, 1995, Kathy Wade and Francis J. Radwan, Jr. were traveling
eastbound on I-74 in a construction zone divided by a barrier. A U-Haul
truck and trailer behind them was unable to stop in response to the slowed
traffic, swerved, and struck them in the right rear side. Their car was
sent careening across the barrier into the path of an oncoming truck.
Radwan was killed instantly and Kathy died within minutes. A State Police
report of the accident concluded the brake rotors on the U-Haul were rusted
and the truck had no brake fluid, with the result that the U-Haul was
unable to brake “during or prior to the impact.” No other defects were
identified.
Barry Durham is the father of Kathy’s two children. Bill Wade was
Kathy’s husband at the time of her death. Durham and Wade were appointed
co-executors of Kathy’s estate, and joined as plaintiffs in a wrongful
death suit against U-Haul, the State of Indiana, and various highway
construction firms. Durham sued on behalf of Kathy’s estate and as
guardian of the children. Wade sued on behalf of Kathy’s estate, and also
asserted his own claim for loss of consortium. Both plaintiffs sought
punitive damages.
Several defendants moved for partial summary judgment on the issues of
punitive damages and Wade’s loss of consortium claim. The motions
contended that no punitive damages are recoverable under the wrongful death
statute and that Wade is limited to a wrongful death claim and may not
pursue a separate loss of consortium claim for Kathy’s death. The trial
court held that (1) Wade’s loss of consortium claim could proceed,
including a claim for punitive damages; and (2) punitive damages were not
recoverable under the wrongful death statute. The Court of Appeals
affirmed the holding that a consortium claim could be asserted but reversed
the grant of summary judgment on the issue of punitive damages. The court
held that principles of statutory construction, case law, and policy
support recovery of punitive damages in a wrongful death claim. Durham v.
U-Haul Int’l, 722 N.E.2d 355 (Ind. Ct. App. 2000).
Three issues are presented: (1) whether Indiana’s wrongful death
statute allows recovery of punitive damages; (2) if not, whether this
violates the federal or state constitution; and (3) may a surviving spouse
bring an independent loss of consortium claim for punitive damages or is
the surviving spouse restricted to loss of consortium damages under the
wrongful death statute.
Standard of Review
On appeal, the standard of review of a summary judgment motion is the
same as that used in the trial court: 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 Co. 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 non-moving party. Shell Oil, 705 N.E.2d at
983-84. The review of a summary judgment motion is limited to those
materials designated to the trial court. T.R. 56(H); Rosi v. Business
Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993).
I. The Wrongful Death Statute and Punitive Damages
The plaintiffs advance a number of policy considerations supporting
their claim that punitive damages should be allowed under Indiana’s
wrongful death statute. The defendants respond that the issue is one of
statutory interpretation and, because it is well settled that punitive
damages are not recoverable under the wrongful death statute, any change in
the law is a decision for the legislature, not this Court. The Court of
Appeals undertook a statutory analysis, examined precedent holding that
punitive damages are barred, and concluded that despite concerns as to
both, public policy advised in favor of allowing punitive damages in the
wrongful death action.
At common law, a cause of action was extinguished by the death of the
plaintiff. Because the victim was viewed as the only person wronged by a
negligent killing, even a defendant whose negligence caused the plaintiff’s
death was insulated from liability. This inequity gave rise to wrongful
death statutes, first in England in 1846, and soon thereafter in every
United States jurisdiction. Durham, 722 N.E.2d at 357-58; accord In re
Estate of Pickens v. Pickens, 255 Ind. 119, 125-26, 263 N.E.2d 151, 155
(1970). The wrongful death action is entirely a creature of statute.
Northern Indiana Power Co. v. West, 218 Ind. 321, 329, 32 N.E.2d 713, 716-
17 (1941), overruled on other grounds by State v. Larue’s, Inc., 239 Ind.
56, 154 N.E.2d 708 (1958). Indiana’s statute was first adopted in 1852, 2
G. & H. 330, sections 782-84 (1870), then again in 1881, Laws of the State
of Indiana, ch. 38, sections 6-29 (1881). It has since been amended on
nine different occasions, most recently in 1998. Ind.Code § 34-23-1-1
(1998). In all of its different versions, the general wrongful death
statute has never specifically addressed punitive damages. In contrast,
the 1999 statute dealing with the wrongful death of unmarried adults with
no dependents explicitly bars punitive damages. Id. § 34-23-1-2 (Supp.
2000). A third statutory treatment of this issue is found in the 1987
child wrongful death statute, which provides a list of recoverable damages
that does not include punitive damages. Id. § 34-23-2-1 (1998).
Plaintiffs contend that, although the wrongful death action is a
creature of statute, the disallowance of punitive damages is a “judicially
engrafted” rule that can be judicially removed. They cite to Chief Justice
Shepard’s concurrence in Miller v. Mayberry, 506 N.E.2d 7, 12 (Ind. 1987)
(Shepard, C.J., concurring in result), superseded by Ind.Code § 34-1-1-8
(1987), in which he disagreed with the majority’s view that separation of
powers concerns prohibit the judiciary from changing its interpretation of
a statute. Plaintiffs also insist that Lindley v. Sink, 218 Ind. 1, 30
N.E.2d 456 (1940), has been mistakenly cited for the proposition that
punitive damages are prohibited under the wrongful death statute. They
point out that Lindley turned on the unrelated issue of whether the
contributory negligence of one beneficiary precludes recovery by all of the
beneficiaries. 218 Ind. at 11-12, 30 N.E.2d at 460. Plaintiffs contend
that reliance of subsequent cases on Lindley is also misplaced.
The goal of statutory construction is to determine and give effect to
the intent of the legislature. Sales v. State, 723 N.E.2d 416, 419-20
(Ind. 2000); accord Collier v. Collier, 702 N.E.2d 351, 354 (Ind. 1998);
Sullivan v. Day, 681 N.E.2d 713, 717 (Ind. 1997). We agree that there is
no constitutional bar to revisiting judicial authority interpreting a
statute. But if a line of decisions of this Court has given a statute the
same construction and the legislature has not sought to change the relevant
parts of the legislation, the usual reasons supporting adherence to
precedent are reinforced by the strong probability that the courts have
correctly interpreted the will of the legislature. Heffner v. White, 221
Ind. 315, 318-19, 47 N.E.2d 964, 965 (1943) (“[S]uch construction should
not then be disregarded or lightly treated.”); accord Loeb v. Mathis, 37
Ind. 306, 312 (1872). Finally, because the wrongful death statute is in
derogation of the common law, it is to be construed strictly against the
expansion of liability. Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909,
911 (Ind. Ct. App. 1994).
Plaintiffs argue, and the Court of Appeals agreed, that it is
significant that the legislature, in all its amendments to the general
wrongful death statute, has never explicitly excluded punitive damages,
even though it has expressly provided that punitive damages are not
recoverable under the unmarried adult with no dependents statute and
provided a list of recoverable elements of damages under the child wrongful
death statute. I.C. §§ 34-23-1-2, -2-1. Plaintiffs also note the language
of the statute itself, which leaves open-ended what damages are recoverable
under the statute: “[D]amages 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.” Id. § 34-23-
1-1 (1998). This language, according to plaintiffs, leaves this Court free
to allow punitive damages.
Although the general wrongful death statute does not mention punitive
damages, the legislature has made some changes to the wrongful death
legislation that are noteworthy. As the Court of Appeals pointed out, in
1987, the legislature changed the child wrongful death statute to
explicitly allow recovery for “loss of services” and “loss of companionship
and affection.” At the same time, the legislature added a list of
recoverable elements that does not include punitive damages.[1] Durham,
722 N.E.2d at 358, 363. This was done only a few months after this Court’s
decision in Mayberry, which held that a damage award for loss of love and
affection in a child wrongful death action violated the “pecuniary damage
rule,” 506 N.E.2d at 11. This change was also close on the heels of the
Court of Appeals’ holding that neither punitive damages nor recovery for
love and affection for the death of a child was a compensable element of
recovery under the statute. Andis v. Hawkins, 489 N.E.2d 78 (Ind. Ct. App.
1986), trans. denied. Although, as the dissent points out, this was not a
decision of the Supreme Court, that decision preceded the 1988
constitutional amendment that substantially freed this Court to address
civil law issues. By the end of World War II, and continuing through 1988,
this Court had been virtually precluded from entertaining civil litigation.
At that time, the Court of Appeals sat in fixed panels of three judges for
each of three geographical districts. As a practical matter, Court of
Appeals decisions were regarded as likely to be the last word on the
subject, at least for the district.[2] We do not think it likely that the
1987 legislature was unaware of the Court of Appeals ruling, or regarded it
as insignificant.
The Court of Appeals opinion in this case cites the 1987 amendment to
the wrongful death statute as support for the proposition that the
legislature has rejected the “pecuniary damage rule,” that is, the notion
that only strictly pecuniary losses are recoverable under the wrongful
death statute. We think the lesson of the 1987 legislation is rather that
the legislature can act swiftly if our interpretation of its statute is
incorrect. In contrast to its elimination of the prohibition against
recovery for a child’s love and companionship, the legislature has never
responded to the courts’ pronouncements on the punitive damages issue.
This legislative silence is in the face of a number of decisions that have
construed the general wrongful death statute to preclude punitive damages.
See Kuba v. Ristow Trucking Co., 508 N.E.2d 1, 2-3 (Ind. 1987) (“The
confines and limitations inherent in a statutorily based wrongful death
action do not permit a claim for treble damages.”); Rogers v. R.J. Reynolds
Tobacco Co., 557 N.E.2d 1045, 1056-57 (Ind. Ct. App. 1990) (punitive
damages are not recoverable in wrongful death action) (citing Andis, 489
N.E.2d at 82-83); accord Huff v. White Motor Corp., 609 F.2d 286, 297 (7th
Cir. 1979) (punitive damages are not allowed where purpose of statute
remains compensatory).
When it disagrees with judicial rulings, the legislature can act. It
amended the statute to allow the loss of love and companionship of a child
to be a compensable element of damages under the child wrongful death
statute. This is consistent with Indiana’s longstanding pecuniary loss
rule. In Herriman v. Conrail, Inc., 887 F. Supp. 1148, 1154-55 (N.D. Ind.
1995), the court interpreted Indiana case law since the 1987 amendment and
concluded that Indiana continues to adhere to the pecuniary loss rule,
despite inclusion of loss of services and loss of love and companionship.
Loss of love and companionship are often included among pecuniary damages,
even if they are not pecuniary in the strict sense of the word. 22A Am.
Jur. 2d Death § 225 (1988) (where damages are limited to pecuniary losses,
recovery for loss of comfort and society are not prevented). As discussed
later, in Indiana the pecuniary damage rule has also not precluded recovery
of “intangible” loss of consortium damages under the wrongful death
statute.
Failure to address punitive damages cannot be attributed to
legislative indifference to the wrongful death statute. The legislature
has amended the wrongful death statute approximately once a decade since
the 1930s.[3] But despite these many other changes to the Act, the
legislature has never amended it to address explicitly the availability of
punitive damages. We can only conclude that the legislature is content
with the consistent line of cases finding punitive damages unavailable.
Finally, where the legislature has explicitly spoken to this issue in other
contexts, its attitude is hostile to punitive damages, either prohibiting
them or setting forth an exhaustive list of recoverable items that does not
include punitive damages.
The net effect of the Court of Appeals’ decision is to disregard a
long line of case law finding the purpose of the wrongful death statute to
be compensatory, and concluding that punitive damages are therefore not
recoverable. This doctrine is first found in Louisville, New Albany, &
Chicago Railway Co. v. Goodykoontz, 119 Ind. 111, 113 (1888), where this
Court stated that the wrongful death action is intended to “afford
compensation for those who have sustained pecuniary loss by the death, and
not for the benefit of the decedent’s estate.” Id.; accord Pickens, 255
Ind. at 126, 263 N.E.2d at 155 (“The purpose of the statute then is to
create a cause of action to provide a means by which those who have
sustained a loss by reason of the death may be compensated.”). At the time
these cases were decided, punitive damages were rarely sought. These early
statements may therefore not reflect considered rejection of the
availability of noncompensatory damages under the wrongful death act.
However, the reaffirmation of that notion in more recent cases, coupled
with the legislative history already described, is persuasive that the
issue has been considered in modern times and resolved against the
plaintiffs’ position.
The Court of Appeals examined Indiana’s view of punitive damages and
concluded that “Indiana is increasingly receptive to imposing exemplary
damages” and that “Indiana no longer uses exemplary damages solely for
punishment or retribution.” Durham, 722 N.E.2d at 362. Rather, Indiana
has come to realize that exemplary damages also serve a deterrent effect.
In support of the court’s first proposition, it noted that the legislature
has expanded the treble damages statute to cover an increasing number of
contexts. In support of the latter proposition, the court cited a recent
Court of Appeals opinion that was adopted on transfer. Bell v. Clark, 653
N.E.2d 483, 490-91 (Ind. Ct. App. 1995), adopted on transfer by 670 N.E.2d
1290 (Ind. 1996).
We disagree with the Court of Appeals that there is an identifiable
trend in Indiana law in favor of expanding access to punitive damages. The
legislature has the power to enlarge the scope of punitive damages,
including under the wrongful death statute, but has seen fit to reduce the
incentive to seek punitive damages. See I.C. §§ 34-23-1-1 to -1-2 & -2-1.
And in several instances the legislature has explicitly curtailed their
availability altogether. Id. § 25-6.1-8-4 (1998) (recovery from auctioneer
fund may not include punitive damages award); § 34-13-3-4 (Tort Claims Act
bars punitive damages); § 34-23-1-2 (barring punitive damages under
unmarried adult with no dependent wrongful death statute). Nor is the
deterrent potential of punitive damages a novel consideration. To the
contrary, this Court’s rationale for the imposition of punitive damages has
long included deterrence as a valid consideration. Indeed, over one
hundred years ago, we observed that: “Exemplary or punitive damages, the
terms exemplary and punitive being synonymous, are damages allowed as a
punishment, or by way of example, to deter others from the like offences,
for torts committed with accompanying fraud, malice, or oppression.” State
ex. rel. Scobey v. Stevens, 103 Ind. 55, 59, 2 N.E. 214, 216 (1885); accord
Husted v. McCloud, 450 N.E.2d 491, 495 (Ind. 1983); Art Hill Ford, Inc. v.
Callender, 423 N.E.2d 601, 602 (Ind. 1981); Indiana & Michigan Elec. Co. v.
Stevenson, 173 Ind. App. 329, 341, 363 N.E.2d 1254, 1262 (1977).
The Court of Appeals took the view that its opinion in Andis should be
reexamined in light of a developing trend in other jurisdictions in favor
of allowing punitive damages in wrongful death actions. In Andis, the
Court of Appeals referred to the general rule that, in most states,
punitive damages are prohibited under the applicable wrongful death
statute. 489 N.E.2d at 79-80. The plaintiffs note that twenty-seven
states now allow punitive damages in wrongful death cases. However, in
eleven of these states the wrongful death statute expressly permits
punitive damages. Thus, the majority of states in which the statute is
silent as to punitive damages (twenty-two out of thirty-eight) continue to
bar punitive damages. 1 Stuart M. Speiser et al., Recovery for Wrongful
Death and Injury § 3A:4 (3d ed. 1992). Finally, and most persuasively, the
plaintiffs argue that it runs contrary to public policy to allow punitive
damages in the ordinary personal injury case but not in the wrongful death
action. As plaintiffs put it, we cannot have a legal regime in which it is
“cheaper to kill than to maim.” It is obviously correct that legal rules
should not encourage or fail to deter fatalities. But it is difficult if
not impossible for a defendant to calculate what the measure of damages
will be in any given personal injury or wrongful death case. Whether or
not punitive damages are recoverable, injuring or causing another’s death
is no inexpensive matter and will result in very different damage awards
depending on variables over which a defendant has little or no control.
Finally, the plaintiffs argue that the statutory language leaves open
the possibility of punitive damages. As noted earlier, in 1965, the
legislature amended the wrongful death statute to include a list of
recoverable damages, explicitly providing that its list was nonexhaustive.
The significance of this provision has been addressed and resolved in prior
cases. Kuba, 508 N.E.2d at 2 (construing “but not limited to” language as
limited to damages “evolv[ing] from a deprivation to a survivor as a result
of the death”); accord Huff, 609 F.2d at 297. Kuba thus took the view that
although the legislature left open the statute to allow for other damages,
these damages must be compensatory. Huff pointed out the unlikelihood that
in 1965 the legislature intended to alter the statute to provide for the
possibility of punitive damages. Id.
We have no quarrel with the result reached by the Court of Appeals as
a matter of policy. If we were writing on a clean slate we would find the
Court of Appeals’ analysis persuasive. However, where the legislature has
spoken, we believe policy setting on an issue such as this is for the
elected branch of government. If the legislature disagrees with this
longstanding interpretation of the statute, it can correct it. In the
meantime, despite any resulting unfairness, punitive damages are not
recoverable under the wrongful death statute.
II. Equal Protection
Plaintiffs assert that allowing punitive damages to personal injury
plaintiffs but not to wrongful death plaintiffs violates the “equal
protection clauses” of the United States and Indiana Constitutions. They
do not identify the source of “equal protection” under the Indiana
Constitution, nor do they identify any case law in support of this
proposition. Specifically, they advance no argument based on Collins v.
Day, 644 N.E.2d 72 (Ind. 1994), and its progeny addressing Article I,
section 23 of the Indiana Constitution. Rather, they merely contend that
prohibiting their recovery of punitive damages “is not rationally related
to a legitimate state objective.” Because they do not present independent
analysis of the Indiana Constitution, their equal protection argument is
governed by federal law. Because no “suspect class” is involved here, the
Fourteenth Amendment requires only that the legislative classification be
rationally related to a legitimate government interest. See Clark v.
Jeter, 486 U.S. 456, 461 (1988).
This Court has long considered the wrongful death statute to exist for
the primary purpose of compensating those harmed by the wrongful death of
another. E.g., In re Estate of Pickens v. Pickens, 255 Ind. 119, 125-26,
263 N.E.2d 151, 156 (1970). Barring punitive damages in the case of a
wrongful death is consistent with the goal of the wrongful death statute,
which is to compensate survivors of the wrongful death victim rather than
to punish defendants. Punitive damages are simply one element of damages,
little of which ends up in the hands of the plaintiff. See Ind.Code §§ 34-
51-3-1 to -6 (1998) (requiring, among other things, that seventy-five
percent of punitive damages awards be placed in the victims compensation
fund). Moreover, there is no entitlement to punitive damages. Travelers
Indem. Co. v. Armstrong, 442 N.E.2d 349, 362-63 (Ind. 1982) (“It has never
been implied that a plaintiff has any entitlement to [punitive] damages.
Rather, he is merely the fortunate recipient of the ‘windfall.’”). The
wrongful death statute also reflects the reality that the injuries to
victims and beneficiaries are qualitatively different. In short, we agree
with the Seventh Circuit that the statute does not fail federal equal
protection analysis. Huff, 609 F.2d at 298 (“Plaintiff has not persuaded
us that the adoption of [the wrongful death statute] without a provision
authorizing awards of punitive damages was irrational.”).
III. Loss of Consortium
Wade urges that he should be able to pursue a loss of consortium
claim independently of the wrongful death action, even though his wife’s
death occurred within a few minutes of the accident. Wade relies on Rogers
v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1057 (Ind. Ct. App. 1990),
in which the Court of Appeals concluded that a widow was entitled to
recover punitive damages on her separate loss of consortium claim. Wade
urges that a loss of consortium claim should be allowed irrespective of
whether a spouse is injured or dies instantaneously as a result of the
defendant’s negligence because to conclude otherwise creates an anomaly in
the law. Wade also contends that the independent common law loss of
consortium claim permits elements of damages different from those that may
be awarded under the wrongful death statute. The loss of consortium is
seen as a route to avoid the bar on punitive damages.
As already noted, at common law any cause of action a plaintiff had
against a defendant was extinguished by the plaintiff’s death, even if the
death was caused by the defendant. In response, the wrongful death statute
was passed in 1852 and has since provided the sole remedy for the estate
and beneficiaries of a deceased plaintiff whose death was caused by the act
or omission of the defendant.
The loss of consortium claim has been described as a claim derivative
of the injured spouse’s personal injury claim. Wine-Settergren v. Lamey,
716 N.E.2d 381, 390-91 (Ind. 1999); Mayhue v. Sparkman, 653 N.E.2d 1384,
1386-87 (Ind. 1995). By this we mean that if the spouse’s cause of action
for personal injury fails, the loss of consortium claim falls with it.
Wine-Settergren, 716 N.E.2d at 390-91 (spouse may not bring loss of
consortium claim where injured spouse’s claim is barred by Worker’s
Compensation Statute). The reason for this requirement is rarely stated,
but we think it sound. See W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 125, at 938-39 (5th ed. 1984) (“Courts have commonly
said that the consortium action is derivative and must fall with the main
claim, but as they could as well have said that it was independent, this
sounds more like a conclusion than a reason . . . .”). If a spouse’s case
survived in a claim that would be barred if brought by the injured person,
a number of legislative policy calls would be circumvented. A claim
covered by worker’s compensation would still be brought as a personal
injury claim by the worker’s spouse despite the policy of the statute to
foreclose litigation over fault in accidents in the workplace. Cf. Wine-
Settergren, 716 N.E.2d at 390-91. Similarly, the wrongful death statute’s
limitation on punitive damages would be circumvented. Both of these issues
are fairly debatable, but because we believe the legislature has resolved
the policy calls on these points we adhere to precedents.
Most states continue to adhere to the rule that common law recovery
for loss of consortium damages is limited to the period between the
spouse’s injury and the spouse’s death. T & M Investments, Inc. v.
Jackson, 425 S.E.2d 300, 304 (Ga. Ct. App. 1992); Clark v. Hauck Mfg. Co.,
910 S.W.2d 247, 252 (Ky. 1995); Archie v. Hampton, 287 A.2d 622, 625 (N.H.
1972); Liff v. Schildkrout, 404 N.E.2d 1288, 1291-92 (N.Y. 1980); Rinke v.
Johns-Manville Corp., 734 P.2d 533, 535 n.1 (Wash. Ct. App. 1987);
Restatement (Second) of Torts § 693 cmt. f (1977). This is not to say,
however, that because a surviving spouse may not maintain an independent
claim for loss of post-death consortium, the spouse cannot recover for loss
of consortium damages. In many states, wrongful death statutes explicitly
provide for loss of consortium damages. E.g., Iowa Code § 613.15 (1999);
Mo. Rev. Stat. § 537.090 (2000).
We agree that loss of consortium is a proper element of damages in a
wrongful death action for the death of a spouse. To the extent that our
prior case law, most notably Burk v. Anderson, 232 Ind. 77, 81, 109 N.E.2d
407, 408-09 (1952), holds that no loss of consortium damages are
recoverable in a wrongful death action for periods after the spouse’s
death, it is overruled. Although Indiana has no explicit provision in the
general wrongful death statute allowing loss of consortium damages, that
item of damages has long been recoverable under the wrongful death statute.
Dearborn Fabricating & Eng’g Corp. v. Wickham, 551 N.E.2d 1135, 1138 (Ind.
1990) (noting that under general wrongful death statute “recovery is
allowed for loss of care, love, and affection sustained by a decedent’s
spouse”); Andis v. Hawkins, 489 N.E.2d 78, 82 (Ind. Ct. App. 1986), trans.
denied (pecuniary loss includes “the reasonable expectation of pecuniary
benefit from the continued life of the deceased, to be inferred from proof
of assistance by way of money, services, or other material benefits
rendered by the deceased prior to his death”) (citing Lustick v. Hall, 403
N.E.2d 1128, 1131 (Ind. Ct. App. 1980), trans. denied); Dunkelbarger Const.
Co. v. Watts, 488 N.E.2d 355, 359 (Ind. Ct. App. 1986) (loss of care, love,
and affection are compensable as pecuniary damages); Richmond Gas Corp. v.
Reeves, 158 Ind. App. 338, 369-70, 302 N.E.2d 795, 815-16 (1973)
(concluding in wrongful death case that jury may consider intangible losses
such as love and affection).
As these cases suggest, consortium has been defined to include both
tangible and intangible elements. In addition to the provision of material
services, consortium includes both conjugal and other “elements of
companionship.” Various terms have been employed to describe the
“elements of companionship,” including “service,” “aid,” “fellowship,”
“companionship,” “company,” “cooperation,” and “comfort.” 41 Am. Jur. 2d
Husband and Wife § 7 (1995). Indiana courts have likewise defined
consortium to include both material services, i.e., calculable and monetary
damages, as well as love, care, and affection. Troue v. Marker, 252 N.E.2d
800, 804-05 (Ind. 1969) (spouse is entitled to recover intangible losses
and monetary losses, including for transportation formerly provided by
deceased spouse); Planned Parenthood, Inc. v. Vines, 543 N.E.2d 654, 657
(Ind. Ct. App. 1989) (consortium includes services, society, and sexual
relations—the “rights and benefits” one expects “upon entry into the
marriage relationship”); Gregg v. Gregg, 37 Ind. App. 210, 216-17, 75 N.E.
674, 675-76 (1905) (holding, in alienation of affections case, that
pecuniary loss is not a prerequisite for recovery on a consortium claim);
Adam v. Main, 3 Ind. App. 232, 234-35, 29 N.E. 792, 793-94 (1892) (same).
Wade has urged that traditional loss of consortium damages vary from
loss of consortium damages under the wrongful death statute, but points to
no significant distinction between the two. On the contrary, these cases
illustrate that both material services as well as loss of love, care, and
affection are recoverable elements under the wrongful death statute. Wade
cites to cases in support of the proposition that loss of consortium
damages continue independently of a wrongful death action upon the death of
a spouse. However, in all of these cases, the spouse was incapacitated or
ill for a significant period of time before death. Cahoon v. Cummings, 734
N.E.2d 535, 538 (Ind. 2000); Mayhue, 653 N.E.2d at 1385-86; R.J. Reynolds,
557 N.E.2d at 1045. Thus, this Court has never directly considered the
issue presented by this case. Wade also cites Abernathy v. Superior
Hardwoods, Inc., 704 F.2d 963, 972 (7th Cir. 1983), in which Judge Posner
stated in a parenthetical: “You cannot claim loss of consortium for a
period after your spouse’s death unless the defendant’s culpable acts
accelerated his death, and there is no suggestion that the accident reduced
[plaintiff’s] life expectancy.” This observation is consistent with our
understanding of loss of consortium damages in Indiana. Loss of consortium
damages do not continue beyond the death of the spouse unless the defendant
is responsible for the death. The derivative loss of consortium claim is
extinguished with the death of the spouse’s personal injury claim against
the person causing the death. However, loss of consortium damages may be
recovered under the wrongful death statute, if the defendant’s negligence
caused or accelerated the death of the other spouse.
Wade seeks to bring a separate loss of consortium claim in order to
recover punitive damages. See, e.g., R.J. Reynolds, 557 N.E.2d at 1057.
However, as we reaffirm today, punitive damages are not recoverable in a
wrongful death action. Here, because the deceased spouse’s claim is
governed by the wrongful death statute and is barred as a common law claim,
the wrongful death statute also governs the surviving spouse’s claim.
Thus, even though Wade may recover loss of consortium damages for his life-
expectancy or Kathy’s, whichever is shorter, he is restricted to
compensation under the wrongful death act and is not independently entitled
to punitive damages based upon a loss of consortium claim.
Conclusion
We reverse in part, affirm in part, and remand for proceedings
consistent with this opinion.
SHEPARD, C.J., and SULLIVAN, J., concur.
RUCKER, J., dissents with separate opinion in which DICKSON, J.
concurs.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SCOTT A. BENKIE MICHAEL C. PEEK
Indianapolis, Indiana RODNEY V. TAYLOR
Indianapolis, Indiana
AMICUS CURIAE INDIANA TRIAL
LAWYERS ASSOCIATION: GEOFFREY L. BLAZI
STEPHEN R. PENNELL
JERRY GARAU Lafayette, Indiana
Indianapolis, Indiana
AMICUS CURIAE DEFENSE TRIAL
COUNSEL OF INDIANA:
JAMES D. JOHNSON
ANGELA L. FREEL
Evansville, Indiana
IN THE
SUPREME COURT OF INDIANA
BARRY DURHAM and BILL WADE, on )
behalf of the ESTATE OF KATHY WADE, )
and BARRY DURHAM as natural guardian )
for AMY DURHAM and JASON DURHAM, ) Supreme Court Cause Number
and BILL WADE, Individually, ) 49S02-0005-CV-294
)
Appellants-Plaintiffs, )
)
v. ) Court of Appeals Cause Number
) 49A02-9811-CV-940
U-HAUL INTERNATIONAL et al., )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard H. Huston, Judge
Cause No. 49D10-9704-CT-504
ON PETITION TO TRANSFER
April 10, 2001
RUCKER, Justice, dissenting
In a well-reasoned and persuasive opinion the Court of Appeals
concluded that the general wrongful death statute could reasonably be
interpreted as allowing punitive damages. I agree and therefore
respectfully dissent from the majority’s opinion in this case.
One of the more difficult challenges of a reviewing court is
discerning legislative intent when examining a statute. We have said that
when examining a statute it is not our prerogative to engraft upon it a
meaning the court determines to be wise or desirable. Walton v. State, 272
Ind. 398, 402, 398 N.E.2d 667, 670 (1980). Rather, we must attempt to
determine what the legislative body intended when the statute was enacted.
To facilitate this obligation courts have developed a number of rules on
statutory construction, all of which are designed to give deference to the
intent of the legislature. Concluding the legislature did not intend the
general wrongful death statute to permit punitive damages, the majority has
seized on two such constructions: (1) strict construction of statutes in
derogation of the common law; and (2) legislative acquiescence. In my view
the majority’s conclusion cannot be sustained on these grounds.
The rule of strict construction requires the court to “presume that
the legislature did not intend to make any change in the common law beyond
those declared either in express terms or by unmistakable implication.”
South Bend Comm. Schs. Corp. v. Widawski, 622 N.E.2d 160, 162 (Ind. 1993).
Because actions for wrongful death did not exist at common law, it has been
held that the wrongful death statute should be construed strictly against
the expansion of liability. Thomas v. Eads, 400 N.E.2d 778, 780 (Ind. Ct.
App. 1980). I have no quarrel with this general proposition. In my view,
however, its application by the majority is misplaced here. That is so
because for over a century the allowance of punitive damages has been a
part of the common law of this State. See, e.g., Citizens’ St. R.R. Co. of
Indianapolis v. Willoeby, 134 Ind. 563, 33 N.E. 627 (1893); Louisville, New
Albany & Chi. Ry. Co. v. Wolfe, 128 Ind. 347, 27 N.E. 606 (1890); Humphries
v. Johnson, 20 Ind. 190 (1863). We must therefore presume that by enacting
the wrongful death statute, the legislature did not intend to make any
change in the common law with respect to punitive damages “beyond those
declared either in express terms or by unmistakable implication.” South
Bend, 622 N.E.2d at 162.
In this case, not only does the statute exclude any reference to
punitive damages, but also it declares “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.” Ind. Code § 34-23-1-1 (1998) (emphasis added). This language
simply does not support the notion that through express terms or
unmistakable implication the legislature intended to wipe away an element
of damage that has been in existence for a hundred plus years.
I find support for this conclusion by comparing Indiana’s two other
wrongful death statutes. The statute governing the wrongful death of
children contains an exclusive list of damages recoverable by the child’s
parents or guardians. Ind. Code § 34-23-2-1(e). Because punitive damages
are not a part of that list, it is clear by “unmistakable implication” that
they are not recoverable. Nor are punitive damages recoverable under
Indiana’s newest wrongful death statute that allows death actions on behalf
of non-dependent survivors of unmarried adults. Ind. Code § 34-23-1-
2(c)(2)(B). Under this statute punitive damages are precluded in “express
terms.” Id. As with the other two statutes, when enacting the 1998
version of Indiana Code § 34-23-1-1, the legislature could very easily have
revised it to exclude punitive damages either by express terms or
unmistakable implication. It declined to do so. I am convinced therefore
that the legislature did not intend to make any change in the common law
where punitive damages are concerned. Indeed the argument that the
legislature and not the courts should allow punitive damages in wrongful
death cases is answered by the fact that courts, as a part of the common
law, created the rule that punitive damages are not allowed in wrongful
death cases. The authority to change the common law rests squarely with
the courts.
As for legislative acquiescence, the doctrine provides that “the
failure of the legislature to change a statute after a line of decisions of
a court of last resort giving the statute a certain construction amounts to
an acquiescence by the legislature in the construction of the court and
that such construction should not then be disregarded or lightly treated.”
Heffner v. White, 221 Ind. 315, 318-19, 47 N.E.2d 964, 965 (1943) (emphasis
added). See also Miller v. Mayberry, 506 N.E.2d 7, 11 (Ind. 1987); Foster
v. Evergreen Healthcare, Inc., 716 N.E.2d 19, 28 (Ind. Ct. App. 1999),
trans. denied. There has not been a line of decisions by this Court—a
court of last resort—construing the question of whether punitive damages
are recoverable under the general wrongful death statute. Rather, there
has been only a single case before this Court that arguably touches on the
subject, namely: Estate of Kuba v. Ristow Trucking Co., Inc., 508 N.E.2d 1
(Ind. 1987). However, in that case the issue presented was whether a
plaintiff in a wrongful death action could recover treble damages under the
statute that authorized victims of certain crimes to bring a civil action
seeking treble damages. Id. Nonetheless, even assuming Kuba unequivocally
stands for the proposition that punitive damages are not recoverable in an
action for wrongful death, it is still but a single decision from this
Court on the subject.
In sum, the majority’s opinion today cannot be sustained on the
grounds it asserts, namely: strict construction and legislative
acquiescence. Rather, it can best be understood as an application of the
doctrine of stare decisis. Under this doctrine the court adheres to a
principle of law that has been firmly established. This is so because
important policy considerations weigh in favor of continuity and
predictability in the law. In re Sandy Ridge Oil Co., Inc., 510 N.E.2d
667, 670 (Ind. 1987). Precedent serves as a maxim for judicial restraint
to prevent unjustified reversal of a series of decisions merely because the
composition of the court has changed. Id. However, “the common law of
today is not a frozen mold of ancient ideas, but such law is active and
dynamic and thus changes with the times and growth of society to meet its
needs.” Perkins v. State, 252 Ind. 549, 554, 251 N.E.2d 30, 33 (1969),
overruled on other grounds by State v. Rendleman, 603 N.E.2d 1333 (Ind.
1992). It has never been the policy of this Court to close its eyes to
change or to disregard reality. “When this Court has recognized that the
legal and social underpinnings of a common law rule have evaporated, we
have not refused to abolish or alter the rule.” Boland v. Greer, 422
N.E.2d 1236, 1239 (Ind. 1981) (Hunter, J., dissenting to denial of
transfer) (citing Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972)
(doctrine of interspousal immunity abolished as based on outmoded legal
theories); Troue v. Marker, 253 Ind. 284, 252 N.E.2d 800 (1969)
(prohibition of wife’s recovery for loss of consortium abrogated on basis
of changes in the legal and social status of women); Perkins, 252 Ind. at
557-58, 251 N.E.2d at 35 (sovereign immunity abolished in face of changing
role of government and development of insurance)). As this Court has done
on other appropriate occasions, this too is an appropriate occasion to
depart from the doctrine of stare decisis. As the Court of Appeals
observed in this case:
[I]t is illogical to allow punitive damages in personal injury actions
but not in wrongful death actions. We cannot perpetuate the adage
that it is cheaper to kill than to maim with regard to general
wrongful death actions.
Durham v. U-Haul Int’l, 722 N.E.2d 355, 363 (Ind. Ct. App. 2000). I agree.
In conclusion, a fair reading of the general wrongful death statute
supports an interpretation that would allow punitive damages to the same
extent that punitive damages are recoverable in personal injury actions.
To the extent prior case authority holds otherwise, it should be overruled.
I therefore respectfully dissent.
DICKSON, J., concurs.
-----------------------
[1] The child wrongful death statute provides:
Sec. 1.
…
(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.
I.C. § 34-23-2-1.
[2] The 1851 Constitution created the Supreme Court, circuit courts, and
gave the legislature the power to create other “inferior courts.” Ind.
Const. art. VII, § 1 (1851). The legislature created the Court of Appeals
in 1891, 1891 Ind. Acts ch. 37, § 1, but this Court continued to exercise
exclusive jurisdiction over non-misdemeanor criminal cases until 1970. In
that year, the constitution was amended to require all criminal appeals of
convictions carrying a penalty of more than ten-years imprisonment to be
appealed directly to this Court. All others could be reviewed by the Court
of Appeals. Ind. Const. art. VII, § 4, § 6 (1970). This amendment does
not appear to have eased the criminal caseload of the Court greatly, if at
all. In 1968, the Court’s docket was nearly two-thirds criminal, compared
to nearly three-quarters criminal in 1972. The Court’s civil docket from
1968 and 1972 consisted of an array of civil direct appeals, including
appeals from interlocutory orders, grants or denials of preliminary
injunctive relief, and condemnation proceedings, just to name a few. In
1968, only eighteen of the Court’s 239 opinions were civil transfer cases.
Similarly, in 1972, only thirteen of the 218 written opinions arrived at
this Court by way of the Court of Appeals. The situation was further
exacerbated in 1976, when the legislature amended the criminal code and
increased the number of crimes for which the penalty exceeded ten years
imprisonment. In 1988, a constitutional amendment permitted all criminal
appeals involving a penalty of less than fifty years to go to the Court of
Appeals. Finally, in 2000, a constitutional amendment restricted the
mandatory direct appeal jurisdiction of this Court to death penalty cases.
The rule implementing the 2000 amendment also provides for direct review by
this Court of all life without parole cases. For a review of this Court’s
increasing criminal docket leading up to the 1988 amendment, see Randall T.
Shepard, Changing the Constitutional Jurisdiction of the Indiana Supreme
Court: Letting a Court of Last Resort Act Like One, 63 Ind. L.J. 669 (1987-
88).
[3] The general wrongful death statute, enacted in 1852 and again in 1881,
has been amended in 1899, 1933, 1937, 1949, 1951, 1957, 1965, 1982, and
1998.