ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
SCOTT A. BENKIE PATRICIA POLIS MCCRORY
DOUGLAS A. CRAWFORD THOMAS G. SAFLEY
Benkie & Crawford PAUL C. SWEENEY
Indianapolis, Indiana Harrison & Moberly
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JENNIPHER FORTE, individually and on )
behalf of the ESTATE OF JEFFREY BARCUS, )
) Supreme Court Cause
Number
Appellants-Plaintiffs, ) 48S02-9904-CV-270
)
v. )
)
CONNERWOOD HEALTHCARE, INC., ) Court of Appeals Cause Number
d/b/a ANDERSON HEALTHCARE CENTER, ) 48A02-9807-CV-561
LINDA STROPES, M.D., RESPIRATORY )
THERAPY CO., TRANSITIONAL HOSPITALS )
CORP. OF INDIANAPOLIS, TAMMY SIGLER, )
R.R.T., SHEILA BABCOCK, PAULA KING, )
ANGELA JESSUP, ELLEN THOMPSON SEIGLER, )
JANE STANGER, JULIE ALLMAN, )
CHRIS LEETH BEATY, RUTH LEVELL, )
CYNTHIA COLEMAN, FRANCES STREGE, )
LENORA HAMPTON, SHIRLEY NANCE )
SPRADLIN, SHERYL MCDONALD, ANNA )
HOSKINS, CATHY SWAFFORD, PAULETTE )
CZERWIN, CONNIE MCKINNEY, PATRICIA )
SMITH (LEWIS), JERRI OVERMAN, PATTY )
LEONARD, DIANE WEST, SUE SLACK, )
DEBBIE METZGER, CATHY HAYNES, and )
UNKNOWN NURSES, )
)
Appellees-Defendants. )
APPEAL FROM THE MADISON SUPERIOR COURT 3
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-9609-CT-0641
ON PETITION TO TRANSFER
April 18, 2001
RUCKER, Justice
In this opinion we conclude that punitive damages are not recoverable
under the Child Wrongful Death Statute. We also conclude that a parent’s
common law claim for loss of a child’s services survives enactment of the
Child Wrongful Death Statute. However, under the common law, punitive
damages are not a part of the claim and therefore are not recoverable.
Facts
On October 2, 1995, Jennipher Forte (“Mother”) placed her five-year-
old developmentally disabled son in the custody of Connerwood Health Care,
Inc., a nursing home doing business as Anderson Healthcare Center.[1]
According to Mother, over the course of the next several days, the nursing
home committed several acts of negligence that led to her son’s death on
October 9, 1995. Thereafter, on her own behalf and on behalf of her son’s
estate Mother sued the nursing home along with several members of its
medical staff
(referred to collectively as “Defendants”). In her initial complaint,
Mother sought compensatory damages only. However, alleging that
Defendants’ negligence was willful and wanton, Mother later amended her
complaint to include a claim for punitive damages. After filing their
answer, Defendants moved for partial judgment on the pleadings with respect
to punitive damages, contending that they are not available under the Child
Wrongful Death Statute.[2] In response, Mother argued that not only was
she entitled to recover punitive damages under the statute, but also she
was entitled to punitive damages for loss of consortium apart from the
statute. The trial court granted Defendants’ motion and Mother pursued an
interlocutory appeal.
On review, the Court of Appeals agreed that the trial court properly
granted Defendants’ motion concerning Mother’s claim to a statutory right
of punitive damages. See Forte v. Connerwood Healthcare, Inc., 702 N.E.2d
1108, 1111 (Ind. Ct. App. 1998). However, the Court of Appeals determined
that the allegations in Mother’s complaint established facts entitling
Mother to punitive damages on another theory – common law loss of services.
Id. at 1113. Having previously granted transfer, we affirm the trial
court.
Discussion
I. Punitive Damages Under the Child Wrongful Death Statute
Although this Court has never addressed the issue, we agree with the
Court of Appeals that punitive damages are not recoverable under the Child
Wrongful Death Statute. At common law, there was no liability in tort for
killing another because actions for personal injury did not survive the
death of the injured party. Gann v. Worman, 69 Ind. 458, 461 (1880); Ed
Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994),
adopted by, 678 N.E.2d 110 (Ind. 1997). Our legislature first authorized a
cause of action for the death of a minor in 1851, the same year Indiana’s
second constitution was adopted.[3] Since 1851, the statute has been
amended several times, the latest of which was in 1998.[4] Until 1987, the
changes in the statute from its original enactment were basically those of
form. Otherwise the statute remained essentially the same.
Although the predecessor to the 1987 statute contained no provisions
concerning damages, case law severely restricted the damages recoverable in
such actions to allow recovery only for pecuniary losses sustained by the
parents. See Miller v. Mayberry, 506 N.E.2d 7, 11 (Ind. 1987), aff’d, 546
N.E.2d 834 (Ind. 1989) (superceded by statute). The proper measure of
damages for the death of a minor child was determined to be the value of
the child’s services from the time of death until majority, taken in
connection with the child’s prospects in life, less the cost of support and
maintenance, to which may be added, in a proper case, the expense of care
and attention made necessary by the injury, funeral expenses, and medical
services. Thompson v. Town of Fort Branch, 204 Ind. 152, 164, 178 N.E.
440, 444 (1931); Boland v. Greer, 409 N.E.2d 1116, 1119 (Ind. Ct. App.
1980). As the Court of Appeals observed, “recovery for wrongful death of a
child has been restricted to the actual pecuniary loss sustained.” Andis
v. Hawkins, 489 N.E.2d 78, 83 (Ind. Ct. App. 1986).
With enactment of the 1987 amendment, the legislature set forth the
recoverable damages for the first time.[5] Consistent with then existing
case authority, the statute excluded
any reference to punitive damages. The statute has been amended twice
since 1987, but the damages portion has remained unchanged.[6]
Concerning the general wrongful death statute, it has been held that
because an action for wrongful death did not exist at common law, the
statute should be strictly construed against the expansion of liability.
Thomas v. Eads, 400 N.E.2d 778, 780 (Ind. Ct. App. 1980). The same is true
for the Child Wrongful Death Statute. “In reviewing such a statute, we
presume that the legislature did not intend to make any changes in the
common law
beyond those declared either in express terms or by unmistakable
implication.” South Bend Cmty. Schs. v. Widawski, 622 N.E.2d 160, 162
(Ind. 1993).
We acknowledge that for more than a century, Indiana common law has
permitted the recovery of punitive damages under appropriate circumstances.
See, e.g., Citizens’ St. R.R. Co. of Indianapolis v. Willoeby, 134 Ind.
563, 569, 33 N.E. 627, 629 (1893); Louisville, New Albany & Chi. Ry. Co. v.
Wolfe, 128 Ind. 347, 352-53, 27 N.E. 606, 607 (1890). Thus it may be
argued that by enacting the Child Wrongful Death Statute, the legislature
did not intend to change the common law with respect to punitive damages.
See, e.g., Louisville, New Albany & Chi. Ry. Co. v. Goodykoontz, 119 Ind.
111, 112, 21 N.E. 472, 472 (1889) (declaring that the Child Wrongful Death
Statute added to the common law remedy by allowing a parent to recover all
the probable pecuniary loss resulting from the death of a child).[7]
However, even assuming that punitive damages may have been recoverable at
common law, at least since the 1987 amendment, the Child Wrongful Death
Statute has contained an exclusive list of damages recoverable by a child’s
parent or guardian. Absent in the list is any reference to punitive
damages. “When certain items or words are specified or enumerated in a
statute then, by implication, other items or words not so specified or
enumerated are excluded.” Health & Hosp. Corp. of Marion County v. Marion
County, 470 N.E.2d 1348, 1355 (Ind. Ct. App. 1984). We conclude,
therefore, that even if the common
law allowed punitive damages in an action for the wrongful death of a
child, our legislature has exercised its prerogative to change the common
law by “unmistakable implication.” See South Bend Cmty. Schs., 622 N.E.2d
at 162. Accordingly, the trial court properly granted Defendants’ motion
for partial judgment on the pleadings concerning this issue.
II. Common Law Claim for Loss of Services of a Child
We first address a preliminary matter. In their Brief in Support of
Petition to Transfer, Defendants question the Court of Appeals’
determination that Mother could pursue a common law claim for loss of
services of her child. According to Defendants, Mother never made a claim
for loss of services; rather, her claim was for a loss of consortium.
Defendants argue that the two are not the same. We agree the claims are
different.[8] However, because of the procedural posture of this case, the
Court of Appeals was correct in addressing the issue.
After Mother filed her amended complaint and Defendants filed their
answer, Defendants moved for judgment on the pleadings under the provisions
of Indiana Trial Rule 12(C), which the trial court granted. A motion for
judgment on the pleadings should be granted “‘only where it is clear from
the face of the complaint that under no circumstances could relief be
granted.’” Culver-Union Twp. Ambulance Serv. v. Steindler, 629 N.E.2d
1231, 1235 (Ind. 1994) (quoting Martin v. Shea, 463 N.E.2d 1092, 1093 (Ind.
1984)). In this case, it is true that Mother’s complaint does not mention
the loss of services of her child. However, our reading of the complaint
shows factual allegations sufficient to support a claim for loss of
services. Thus we see no problem with the Court of Appeals addressing the
issue. For reasons discussed below, however, we disagree with our
colleagues that punitive damages are recoverable under a claim for loss of
services.
The origins of a common law claim for loss of services are generally
traced to 13th Century Roman law. Francis Bowes Sayre, Inducing Breach of
Contract, 36 Harv. L. Rev. 663, 663-64 (1923). The Roman system allowed
the head of the household to pursue a claim stemming from a violent action
or insult upon any member of the household. Id. at 665. English common
law followed suit in the 14th Century when it allowed a master, in order
to protect his property right in his servant, to initiate a lawsuit to
compensate him for lost services due to an intentional injury to his
property. Id.; see also Keeton et al., § 125, at 931.
The development of loss of services claims in this country followed
the English common law. However, in addition to a master’s claim to the
services of his servant, the claim was expanded to include a father’s right
to recover for the loss of services of his child. See, e.g., Plummer v.
Webb, 19 F. Cas. 894, 896 (D. Me. 1825) (noting that a parent may maintain
an action for loss of services stemming from injuries to a child under the
guardianship of his father); Ream v. Rank, 3 Serg. & Rawle 215, 216-17 (Pa.
1817) (acknowledging that loss of services is the proper claim for the
luring away of a father’s daughter). Similar to a master’s loss of
services of his servant, a father’s loss of services of his child was in
the nature of a property right with recoverable damages limited to
pecuniary losses for injury to the father’s property. See Houston & Great
N. R.R. Co. v. Miller, 49 Tex. 322, 332 (1878) (declaring that a father is
entitled to damages for loss of child’s services, medical expenses, and any
other expenses rendered necessary by the injury); Oakland Ry. Co. v.
Fielding, 48 Pa. 320, 327-28 (1864) (holding that the trial court was
correct in instructing the jury that the father was limited to pecuniary
damages in his loss of services claim).
As with other jurisdictions, by the latter half of the nineteenth
century, this jurisdiction also began to recognize a father’s right to
recover for the services he lost as a result of an injured child. See
Binford v. Johnston, 82 Ind. 426, 431 (1882); Boyd v. Blaisdell, 15 Ind.
73, 75-76 (1860); Long v. Morrison, 14 Ind. 595, 596-97 (1860). Our courts
also limited the recoverable damages to monetary or pecuniary losses only.
See Thompson, 204 Ind. at 164, 178 N.E.2d at 444; Long, 14 Ind. at 600;
Citizens’ St. R.R. Co. v. Willoeby, 15 Ind. App. 312, 321-22, 43 N.E. 1058,
1059 (1896).
As the case law has developed, Indiana has continued to acknowledge a
common law cause of action for loss of a child’s services. Although we
have long departed from the notion that only the father may pursue such an
action - either parent may do so - we have continued to maintain that the
action is in the nature of a property right as opposed to an action for
personal injury. See Graf v. City Transit Co., 220 Ind. 249, 251-52, 41
N.E. 941, 942 (1942) (an action for loss of services is an action “for
injuries to property” rather than for “injuries to person”); Buffalo v.
Buffalo, 441 N.E.2d 711, 714 (Ind. Ct. App. 1982) (“A suit brought by a
parent to recover the value of lost services of a minor child resulting
from an injury caused by a defendant is an action for injury to property
rights.”) (superceded by I.C. § 9-3-3-1 on other grounds).
Consistent with the common law, the Child Wrongful Death Statute also
allows a parent to pursue damages for loss of a child’s services. However,
unlike a common law claim where damages are measured from the date of
injury to the date of death, see Mayhew v. Burns, 103 Ind. 328, 333, 2 N.E.
793, 796 (1885), under the Child Wrongful Death Statute the recovery for
loss of services is measured from the date of the child’s death until a
subsequent triggering event. I.C. § 34-23-2-1(f).[9] Because the statute
allows a parent to pursue a claim for damages after the death of a child,
the statute marks a radical departure from the common law. That is so
because, as we have already noted, under the common law a claim of injury
expired with the death of the injured party. Gann, 69 Ind. at 461; Ed
Wiersma Trucking Co., 643 N.E.2d at 911. Now, a parent may pursue a claim
after his or her child’s death and is entitled to a variety of statutory
damages including loss of services. However, the statute does not address,
either in express terms or by unmistakable implication, a claim for loss of
services arising during the child’s lifetime; that is, from the date of
injury to the date of death. We conclude therefore that a parent’s common
law claim for loss of a child’s services survives enactment of the Child
Wrongful Death Statute. The question remains, however, whether punitive
damages are recoverable under a common law claim. We conclude they are
not.
We first acknowledge that we have found no cases in this jurisdiction
specifically addressing whether a parent is entitled to punitive damages as
a result of injury to his or her property rights in a child. Cf. Thompson,
204 Ind. at 157, 178 N.E. at 442 (citing with approval Tidd v. Skinner, 122
N.E. 247, 251 (N.Y. 1919), in which New York’s highest court rejected the
notion that punitive damages are recoverable in action for loss of a
child’s
services). Indeed, we have found only two cases in this jurisdiction in
which a parent even appears to have sought punitive damages on a claim for
loss of a child’s services. See Montgomery v. Crum, 150 N.E. 393 (Ind. Ct.
App. 1926) (ruling that a $25,000.00 award for loss of a child’s services
is excessive and that punitive damages were not recoverable because of the
rule of law at the time declaring that such damages are unavailable where
the commission of a wrong subjected the wrongdoer to both criminal
prosecution and civil liability), rev’d, 199 Ind. 660, 161 N.E. 251 (1928);
accord Struble v. Nodwift, 11 Ind. 64 (1858) (finding error in the trial
court’s instruction to the jury that vindictive damages are available for
claims of loss of services, when the wrongdoer was liable for criminal
prosecution). We are of the view that the dearth of case authority on the
subject of whether a parent was entitled to recover punitive damages for
loss of a child’s services is due at least in part to the fact that an
injury to a child that might have given rise to such a claim was in the
nature of a personal injury, owned by the child himself, and inured to his
benefit alone. See Long, 14 Ind. at 597 (noting that at common law, in
addition to the parent’s loss of services claim, an infant still had an
action for personal injury); State v. Eaton, 659 N.E.2d 232, 237 (Ind. Ct.
App. 1995) (noting that when a minor is injured by a wrongful act, the
child has a personal injury claim and the parent has a claim for loss of
services); see also 22 Am. Jur. 2d Damages § 781 (1988) (declaring that
historically, exemplary damages have only been available to the immediate
person suffering the injury); J.D. Perovich, Annotation, Spouse’s or
Parent’s Right to Recover Punitive Damages in Connection with Recovery of
Damages for Medical Expenses or Loss of Services or Consortium Arising from
Personal Injury to Other Spouse or to Child, 25 A.L.R.3d 1416, 1417-18
(1969) (compiling a jurisdiction by jurisdiction list of the courts
declaring that when a parent sues for loss of services from an injury
negligently inflicted upon a child, recovery is purely compensatory and not
punitive).
Our review of the relevant case authority leads us to the conclusion
that although Indiana common law has permitted the recovery of punitive
damages under “appropriate circumstances,” those circumstances have never
included the recovery of punitive damages for a claim of loss of a child’s
services. Our legislature has not addressed this issue, and Mother has not
argued that this Court should abandon the doctrine of stare decisis and
change the common law. Accordingly, as with the claim for a statutory
right of punitive damages, the trial court properly granted Defendants’
motion for partial judgment on the pleadings on this issue as well.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] After this case was fully briefed and transfer granted,
Connerwood Healthcare, Inc. filed a bankruptcy petition, triggering an
automatic stay of action. See 11 U.S.C. § 362(a)(1). However,
Connerwood’s bankruptcy does not prevent this Court from proceeding
with this appeal at least with respect to the non-bankrupt parties.
See Seiko Epson Corp. v. Nu-Kote Int’l, Inc., 190 F.3d 1360, 1364-65
(Fed. Cir. 1999), reh’g denied. Accordingly, the Court renders this
decision with respect to the non-bankrupt parties only. As for
Connerwood Healthcare, Inc., this appeal remains in abeyance by
operation of the bankruptcy stay.
[2] Ind.Code § 34-1-1-8 (current version at I.C. § 34-23-2-1).
[3] The first Child Wrongful Death Act provided:
A father, or in case of his death or desertion of his family, or
imprisonment, the mother, may maintain an action for the injury
or death of a child; and a guardian for the injury or death of
his ward. But when the action is brought by the guardian for an
injury to his ward, the damages shall inure to the benefit of
his ward.
1852 Ind. Acts vol. 2, pt. 2, ch. 1, art. 2, § 27, p. 56.
[4] See Pub.L. No. 1-1998, § 18, 1998 Ind. Acts 141-43; Pub.L. No. 33-
1989, § 116, 1989 Ind. Acts 608-10; Pub.L. No. 306-1987, § 1, 1987
Ind. Acts 2990-91; Pub.L. No. 316-1975, §1 1975 Ind. Acts 1759; 1951
Ind. Acts ch. 112, § 1, p. 307-08; 1881 Ind. Acts ch. 38, § 29, p.
244.
[5] The statute provides in pertinent part:
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(e). See Pub.L. No. 306-1987, § 1, 1987 Ind. Acts
2990-91.
[6] See Pub.L. No. 1-1998, § 18, 1998 Ind. Acts 141-43; Pub.L. No. 33-
1989, § 116, 1989 Ind. Acts 608-10.
[7] See also Forte, 702 N.E.2d at 1111 n.3 (commenting that the law
in this area has been developed primarily in federal court decisions
and observing that at least one such decision noted that Indiana
common law has historically permitted the recovery of punitive damages
under appropriate circumstances and the general wrongful death statute
permits an action whenever the decedent might have maintained an
action had he or she lived).
[8] A claim for loss of services differs from loss of consortium
because loss of services “d[oes] not expand to include intangible
losses, . . . the parent [has] no claim for loss of the child’s
society and companionship.” W. Page Keeton et al., Prosser & Keeton
on the Law of Torts, § 125, at 934 (5th ed. 1984) (footnotes omitted).
Whereas, “[c]onsortium is more than ‘services’ in the ordinary
sense[, a]n action for consortium rests in large part on the
impairment or destruction of the sexual life of the couple.” Boland,
409 N.E.2d at 1120. This Court has determined that a child cannot
recover loss of consortium damages for the death of a parent because
“[t]he predominant element in the concept of consortium has been
described as the loss of the sexual relationship.” Dearborn
Fabricating & Eng’g Corp., Inc. v. Wickham, 551 N.E.2d 1135, 1136
(Ind. 1990) (quotation omitted). This Court concluded “apart from
wrongful death actions, a child may not maintain an action for loss of
parental consortium when the parent is negligently injured by a third
person.” Id. at 1139.
[9] Specifically the statute provides:
(f) Damages may be awarded under this section only with respect to the
period of time from the death of the child until:
(1) the date that the child would have reached:
(A) twenty (20) years of age; or
(B) twenty-three (23) years of age, if the child was
enrolled in an institution of higher education or in a
vocational school or program; or
(2) date of the child’s last surviving parent’s death;
whichever first occurs.
I.C. § 34-23-2-1(f).