dissenting.
In Indiana, we have three classes of possible beneficiaries under the Wrongful Death Statute:
Class 1 is a surviving widow or widower and dependent children if any;
Class 2 is a dependent next of kin; and
Class 3 is made up of service providers.
Necessary v. Inter-State Towing (1998) Ind.App., 697 N.E.2d 73, 76, trans. denied, and Wiersma Trucking Co. v. Pfaff (1994) Ind.App., 643 N.E.2d 909, 911, adopted on transfer 678 N.E.2d 110.
If there is anyone in Class 1 to recover, we do not reach the question whether there are any persons who would fall within Class 2. Necessary v. Inter-State Towing, supra. In Necessary, a claim was filed both by decedent’s alleged dependent son and by an alleged dependent next of kin, her grandson. There, we cited Shipley, Adm’r v. Daly (1939) 106 Ind.App. 443, 20 N.E.2d 663 for the following proposition:
“[Tjhere was but one cause of action created by the statute, and it accrued upon the death of the injured party, and inured to the benefit of those named in the statute in the order stated, as of the date of death, and not otherwise. If there are no survivors of the first class, the right is for the benefit of those of the second class, if any, and if none, then for the benefit of those of the third class, but the right when it accrues does not pass upon the death of those of one class of persons to the next class.” 697 N.E.2d 73, 79.
In Necessary we also appended a footnote which reflected our conclusion that Shipley retains viability notwithstanding that it concerned a since amended statute. We observed that:
“Although the Shipley court was reviewing the since amended wrongful death statute, the language regarding the hierarchy of classes and ‘the distribution in the same manner as personal property of the deceased’ has not been substantially altered, and we therefore review the most recent version of the statute with such precedent in mind.” 697 N.E.2d at 79 n. 2.
The final paragraph of our opinion in Necessary which stated that the son may recover if he proves dependency but also that “[the grandson] may or may not recover” should not be construed as an implication that both the son, if dependent, and the grandson, as a next of kin, if also dependent, could recover. 697 N.E.2d at 80. Such implication would be contrary to our clear holding that “a finding of [the son’s] dependency precludes [the grandson, as a next of kin] from bringing his dependency claim.” 697 N.E.2d at 78.
In short, we held in Necessary that if there is a member of Class 1, who may recover damages under the Wrongful Death Act, such determination excludes any putative member of Class 2, i.e., a dependent next of kin (other than a child) from any recovery.
If there is a surviving widower, as here, and a dependent child (Williams), then both could recover. However, Williams would be required to establish dependency, not merely a financial loss. If Williams is unable to establish dependency, she may not recover because the only eligible person in Class 1 at the time of death was Hoy, the widower.
The majority opinion refers to Williams as “next of kin” (a Class 2 beneficiary), rather than as a “child,” (a Class 1 beneficiary if she is dependent). Upon the death of a widow or widower pending a wrongful *410death judgment, the result differs depending upon whether there remains surviving a dependent child or merely a dependent next of kin. For this reason it is incorrect to view Williams as a “next of kin.” In the context of the Wrongful Death Act, a next of kin is someone other than a “child.”
In Wiersma, supra, the wrongful death claim was made by a mother as a dependent next of kin, ie., the deceased daughter did not leave surviving either a widower or a dependent child. The issue there was as to the nature of the damages recoverable, ie., whether loss of love, care and affection were recoverable. Wiersma correctly observed that as to beneficiaries of Class 1, damages may include emotional damages, ie., loss of love, care and affection, in addition to pecuniary loss. The court then extended to Class 2 beneficiaries, ie., dependent next of kin, the right to also recover for emotional damages as well as for pecuniary loss.
Wiersma, however, offers no guidance with respect to the effect of a death of a Class 1 beneficiary after filing of a wrongful death action but before judgment nor as to whether upon such occurrence, a claim may accrue upon behalf of a Class 2 beneficiary, ie., a dependant next of kin. That contingency is not crucial to our case, however, for despite the majority’s reference to Williams as a “next of kin”, ie., a Class 2 beneficiary, Williams is actually a member of Class 1 as a “child,” if in fact she is dependent.
It is clear from this scenario that if Williams is able to establish dependency, she may have a wrongful death recovery notwithstanding the death of Hoy. If she were merely an alleged dependent next of kin, she would have no such right of recovery because the failure of a member of Class 1 to survive until entry of a wrongful death judgment does not serve to vest in a hitherto uncognizable Class 2 beneficiary, the right to now assert a wrongful death claim. Shipley, Adm’r v. Daly, supra. In short, the identity and rights of beneficiaries under the Wrongful Death Act are fixed as of the moment of the wrongful death. If the decedent is survived by any length of time by a widow, widower, and/or dependent child, an individual who is a dependent next of kin, but not a child, may not thereafter successfully assert a wrongful death claim. Here, Dorothy was survived by Hoy, her widower. If Williams were merely a dependent next of kin she could not successfully assert a wrongful death claim notwithstanding the death of Hoy prior to recovery of a judgment. The rights of wrongful death beneficiaries are determined by the priorities of the three classes, and they are fixed as of the moment of decedent’s death. New prospective beneficiaries may not be added if they had no right of recovery as of the decedent’s death.
If the law is to be otherwise, that pronouncement should come presumably from our General Assembly, or at a minimum from our Supreme Court.
The majority quotes from Dillier implying that dependency is no longer required, at least with respect to “a next of kin” as opposed to a “child” and that only pecuniary loss is required for recovery. The statute is clearly to the contrary, and even if Hoy’s death leaves Williams as a surviving, dependent child beneficiary eligible to recover, she may do so only if she proves dependency. Mere pecuniary loss short of dependency is not enough.
I agree that Community Hosp. of Anderson v. McKnight (1986) Ind., 493 N.E.2d 775 holds that a child may sue directly under the Medical Malpractice Act without being appointed a personal representative of decedent’s estate as required by the Wrongful Death Act. I also agree that the case says the distribution scheme of the Wrongful Death Statute does not preclude a trial court in a Medical Malpractice suit from achieving “a just and proper distribution of damages.... ” 493 N.E.2d at 777. However, it appears that McKnight is susceptible to a construction permitting an “end run” around the *411Wrongful Death restrictions as to what damages are recoverable and as to who may recover those damages. It would seem that if a surviving child may not recover for mere pecuniary loss without proving dependency under the Wrongful Death Act, no rational basis would exist for recovery by such person under the guise of a Medical Malpractice suit for the death of the parent.
In summation, with regard to this issue, I interpret the law to be that a claim for wrongful death accrues at the death of the decedent. If, at that time, there is a beneficiary or beneficiaries as set forth in Class 1, even if that beneficiary or all beneficiaries of that Class die before judgment, a claim does not arise on behalf of someone in Class 2, such as a dependent parent, grandchild, brother, sister, etc. Any perceived unfairness5 in this analysis must be addressed by the General Assembly or our Supreme Court.
I further dissent with respect to Part III concerning Hoy’s claimed damages for loss of consortium. Although the cases or some of the cases cited by our Supreme Court in Burk v. Anderson (1952), 232 Ind. 77, 109 N.E.2d 407 do not directly compel the holding, Burk has not been overruled, even by implication, with respect to this issue. It is, therefore, binding upon this court, and I would hold that Hoy’s claim for loss of consortium is limited to the three day period between the surgery performed upon Dorothy and the date of her death.
. If the spouse and/or dependent child or children predeceased the decedent, a dependent next of kin, as a member of Class 2, would be eligible for a wrongful death recovery.