ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert F. Wagner James R. Fisher
Dina M. Cox Debra H. Miller
Indianapolis, Indiana Indianapolis, Indiana
D. Timothy Born ATTORNEY FOR AMICUS CURIAE
Shawn M. Sullivan INDIANA TRIAL LAWYERS
ASSOCIATION
Evansville, Indiana
William F. Conour
Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE
DEFENSE TRIAL COUNSEL
OF INDIANA
John B. Drummy
Eric D. Johnson
Indianapolis, Indiana
James D. Johnson
Evansville, Indiana
ATTORNEY FOR AMICUS CURIAE
F. Wesley Bowers
Evansville, Indiana
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IN THE
SUPREME COURT OF INDIANA
ELMER BUCHTA TRUCKING, INC., )
)
Appellant (Defendant Below), ) No. 14S01-0002-CV-114
) in the Supreme Court
v. )
) No. 14A01-9805-CV-164
CHRISTINA STANLEY and ) in the Court of Appeals
LARRY STANLEY as Co-Personal )
Representatives of the Estate of )
MICHAEL G. STANLEY, )
)
Appellees (Plaintiffs Below). )
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APPEAL FROM THE DAVIESS CIRCUIT COURT
The Honorable Robert L. Arthur, Judge
Cause No. 14C01-9612-CT-363
[pic]
March 26, 2001
SHEPARD, Chief Justice.
Under Indiana’s wrongful death statute, a decedent’s estate may
recover damages for the lost earnings of the deceased, among other things.
This has long been understood not to include that portion of decedent’s
earnings that the decedent himself would have consumed for his own personal
expenses and maintenance. The question here is whether the legislature
changed that rule in 1965. We conclude it did not.
Facts and Procedural History
In July 1996, Michael Stanley was fatally injured during a vehicular
collision with Luther Leslie, an employee of Elmer Buchta Trucking, Inc.
(“Buchta”). Stanley’s wife and three children survived him.
In December 1996, Stanley’s estate (“Stanley”) filed suit against
Leslie’s estate (“Leslie”) and Buchta. Buchta and Leslie admitted
liability, acknowledging that Leslie’s negligence caused Stanley’s death
and that Buchta was vicariously liable for damages recoverable under the
wrongful death statute. Stanley then dismissed the suit against Leslie and
proceeded to trial against Buchta on the issue of damages.
Before trial, Stanley filed two motions in limine seeking to exclude
evidence about the amount of Michael Stanley’s anticipated earnings that
Stanley himself would have consumed had he lived. The trial court granted
the motions.
At trial, Stanley called economist George Launey to testify about the
amount of lost earnings Stanley’s estate suffered because of his death.
Before Launey testified, Buchta made an offer to prove regarding the amount
of Stanley’s earnings that he would have consumed for personal expenses or
maintenance throughout his life. The offer to prove revealed that had
Launey been allowed to do so, he would have said the amount of lost
earnings should be reduced by about twenty-four percent. Having heard
the offer to prove, the trial court still excluded evidence of personal
consumption.
The jury returned a verdict in favor of Stanley. The Court of
Appeals affirmed. Elmer Buchta Trucking, Inc. v. Stanley, 713 N.E.2d 925
(Ind. Ct. App. 1999). We granted transfer.
I. Evidence of Personal Consumption
Buchta first asserts that the trial court erred in prohibiting
evidence about Stanley’s personal consumption.[1]
A. Wrongful Death Statute. At common law, there was no liability in
tort for the death of another. Ed Wiersma Trucking Co. v. Pfaff, 678
N.E.2d 110 (Ind. 1997), adopting, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994).
In 1852, the General Assembly passed the predecessor statute to our
current law, allowing the personal representative of a deceased to bring an
action for wrongful death but limiting damages to $5,000. Id. The damages
recovered inured to the benefit of the surviving spouse and children, if
any, or to the next of kin. Id.
The legislature has amended the act a good many times during the
intervening century and a half. It has, for example, added the requirement
of dependency in relation to the decedent’s children and next of kin, added
a third class of “death creditor” beneficiaries, and increased the limits
on recovery. Id.
By 1965, the statute had reached its present form, which recognizes
three classes of beneficiaries and provides that the personal
representative is the proper party to maintain an action for damages for
the benefit of the estate beneficiaries. See Ind. Code Ann. § 34-23-1-1
(West 1999). Damages for medical, hospital, funeral and burial expenses
inure to the estate and to the payment of these expenses, while the
remainder of damages inure to the exclusive benefit of the decedent’s
spouse and dependent children, if any, or to the dependent next of kin.
Id.
The portion of the statute pertinent to the present case now reads as
follows:
When the death of one is caused by the wrongful act or omission
of another, the personal representative of the former may maintain an
action therefore against the latter, . . . When the death of one is
caused by the wrongful act or omission of another, the action shall be
commenced by the personal representative of the decedent within two
(2) years, and the 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 Ann. § 34-23-1-1 (emphasis added).
B. Statutory Interpretation. When deciding questions of statutory
interpretation, appellate courts need not defer to a trial court’s
interpretation of the statute’s meaning. Rather, we independently review
the statute’s meaning and apply it to the facts of the case under review.
See Figg v. Bryan Rental Inc., 646 N.E.2d 69 (Ind. Ct. App. 1995), trans.
denied. If a statute is unambiguous, we may not interpret it, but must
give the statute its clear and plain meaning. In re Grissom, 587 N.E.2d
114 (Ind. 1992). If a statute is ambiguous, however, we must ascertain the
legislature’s intent and interpret the statute so as to effectuate that
intent. Whitacre v. State, 629 N.E.2d 1236 (Ind. 1994), adopting, 619
N.E.2d 605, 606 (Ind. Ct. App. 1993). A statute is ambiguous where it is
susceptible to more than one interpretation. Amoco Prod. Co. v. Laird, 622
N.E.2d 912 (Ind. 1993).
Here, Buchta and Stanley disagree about the import of the phrase “lost
earnings of [the] deceased person.” Buchta argues that since the statute
does not explicitly mention a deduction for the deceased’s personal living
expenses, such a deduction should be allowed. Conversely, Stanley argues
that since the statute says that damages “shall include” the lost earnings
of the deceased, and does not mention deductions for personal expenses,
such a deduction is prohibited.
The words of the statute arguably supports both of the competing
interpretations advocated by the parties. Thus, we examine the
legislature’s purpose in enacting the wrongful death statute. In doing so,
we are hardly writing on a clean slate.
Indiana’s courts have long held that the purpose of the wrongful death
statute was “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.” In
re Estate of Pickens, 255 Ind. 119, 126, 263 N.E.2d 151, 155 (1970).
“Pecuniary loss is the foundation of a wrongful death action, and the
damages are limited to the pecuniary loss suffered by those for whose
benefit the action may be maintained.” Wiersma, 643 N.E.2d at 911
(citations omitted). “Pecuniary loss can be determined, in part, from the
assistance that the decedent would have provided through money, services,
or other material benefits.” Id.
In Consolidated Stone Co. v. Staggs, 164 Ind. 331, 337, 73 N.E. 695,
697 (1905), this Court said the following about the measure of damages from
wrongful death:
Under a statute like ours, which gives a new right of action,
distinct from that which the deceased might have maintained, the
measure of damages is compensation for the pecuniary loss sustained by
the party or parties entitled to the benefit of the action. The sole
inquiry is how many dollars are necessary to compensate the
beneficiaries for the pecuniary loss caused to them by the wrongful
death. The damages are not to be estimated at the value of the life
lost, but at such a sum as will compensate the persons on whose behalf
the action is brought for the pecuniary injury which they have
sustained by the death.
Id. (citations and internal quotation marks omitted).
Consistent with this reading, the statute has long been understood to
contemplate a deduction for the amount of personal maintenance expenses
that the decedent would have incurred over the remainder of his lifetime.
As tending to establish the extent of these losses, it is proper to
consider the probable future earnings of the husband and father, and
his age, health, strength, occupation, habits, opportunities and
capability are elements of this consideration. These cases recognize
the rule that the gross earnings should be subject to deduction on
account of the reasonable cost of his own support and that the present
payment of the sum awarded in damages is a proper circumstance in
determining the amount which shall be allowed as the equivalent of the
earning capacity of the deceased.
Pittsburgh, Cincinnati, Chicago, & St. Louis Ry. Co. v. Burton, 139 Ind.
357, 378, 37 N.E. 150, 156 (1894); see also Richmond Gas Corp. v. Reeves,
158 Ind. App. 338, 364, 302 N.E.2d 795, 813 (1973) (citing the Voigt
language favorably).
The court instructed the jury that they were entitled to assess as
damages “a sum equal to the amount the deceased might have earned, as
shown by the evidence, not to exceed the sum of $10,000 during the
period of his life, in which he would have probably earned money,
deducting therefrom the reasonable cost of his own support, and making
a fair deduction for the present payment of said sum.”
Ohio & Mississippi Ry. Co. v. Voight, 122 Ind. 288, 295-96, 23 N.E.
774, 776 (1889).
As in the 1970 case of Pickens, 215 Ind. 119, we repeated this notion
about the measure of recovery in Burnett v. State, 467 N.E.2d 664 (Ind.
1984), in which we considered whether a jury properly assessed damages
under the wrongful death statute and wrote:
In the case at bar, for the purpose of providing a basis for a jury
assessment of lost earnings, plaintiff introduced income figures, but
did not satisfy the jury’s need to know how to translate those amounts
into an approximation of the actual monetary loss she suffered by
reason of [decedent’s] death. She did not indicate, for example, by
how much these figures should be reduced to account for [decedent’s]
personal and business expenses.
Id., 467 N.E.2d at 666.
Thus, in applying the wrongful death statute to compensate the
deceased’s beneficiaries for losses they suffer, the defendant should be
permitted to present evidence of the deceased’s personal consumption. If
juries cannot deduct the deceased’s personal living expenses from lost
earnings, the amount of the award will necessarily exceed the actual
financial loss experienced by the beneficiaries. This result is not one
contemplated by the statute. Therefore, the proper measure of damages must
include a deduction based on the costs of this personal maintenance.
Moreover, the statute says that “damages shall be in such an amount as
may be determined by the court or jury,” Ind. Code § 34-23-1-1, and
determination of the amount of pecuniary loss in a particular case has long
been recognized as a function of the jury. State v. Bouras, 423 N.E.2d
741, 746 (Ind. Ct. App. 1981) (citing New York Central R.R. Co. v. Johnson,
234 Ind. 457, 463, 127 N.E.2d 603, 606 (1955); Henschen v. New York Central
R.R. Co., 223 Ind. 393, 400, 60 N.E.2d 738, 740 (1945)); see also
Consolidated Stone Co., 164 Ind. 331, 73 N.E. 695. For this reason, juries
should be allowed to consider all of the available evidence in determining
the extent of loss to the deceased’s beneficiaries.
That juries should account for actual financial loss has been
held the object of the statute from the Nineteenth Century through to the
last two decades. We cannot find legislative desire to alter that formula
in the relatively general amendments adopted thirty-six years back.
Accordingly, we conclude that the trial court erred in granting
Stanley’s motions in limine and in preventing Buchta from introducing
evidence regarding the amount of his lost earnings that Michael Stanley
would have consumed for personal expenses throughout his life.
II. Jury Instructions
Buchta also contends the trial court erred in refusing two of its
proposed jury instructions. The two tendered instructions read:
It is not the purpose of this proceeding to punish Elmer Buchta
Trucking, Inc. for the death of Michael G. Stanley. Instead, the
damages you award must be limited to that amount of money which is
required to compensate Christina Stanley and her three children for
their pecuniary loss they have sustained by reason of Michael G.
Stanley’s death. This loss can be determined, in part, from the
assistance that the decedent would have provided through money,
services, or other material benefits. However, this loss also
includes the loss to the children of parental training and guidance
and the loss of love and affection to the surviving spouse.
(R. at 401; Defendant’s Proposed Final Instruction No. 6.)
Under Indiana law, your award for damages in this wrongful death case
may not include damages for grief, sorrow, or wounded feelings.
(R. at 403; Defendant’s Proposed Final Instruction No. 8.)
The giving of jury instructions lies within the trial court’s sound
discretion, and we review the court’s refusal to give a tendered
instruction for an abuse of that discretion. CSX Trans., Inc. v. Kirby,
687 N.E.2d 611 (Ind. Ct. App. 1997), trans. denied.
In determining whether it is error to refuse a tendered instruction,
we consider 1) whether the instruction correctly states the law, 2) whether
there is evidence in the record supporting the instruction, and 3) whether
the substance of the instruction is covered by other instructions. Peak v.
Campbell, 578 N.E.2d 360, 361 (Ind. 1991). Moreover, one seeking a new
trial on the basis of an improper jury instruction must show “a reasonable
probability that substantial rights of the complaining party have been
adversely affected.” Id. at 362 (quoting Sullivan v. Fairmont Homes, Inc.,
543 N.E.2d 1130, 1140 (Ind. Ct. App. 1989)).
Our review of the final instructions given at trial reveals that the
court delineated the elements of damages recoverable under the wrongful
death statute.[2] (R. at 406-07.) Indeed, Buchta does not challenge the
propriety of this instruction. Instead, it contends that the court should
have also instructed the jury on the elements for which Stanley was not
entitled to recover.
It is not error to refuse an instruction when the subject matter is
substantially covered by other instructions given by the court. Get-N-Go,
Inc. v. Markins, 550 N.E.2d 748, 751 (Ind. 1990). Moreover, we do not
require a court to read negative instructions when the jury has been
properly instructed through a positive instruction on the same issue. See
Dayton Walther Corp. v. Caldwell, 273 Ind. 191, 402 N.E.2d 1252 (1980).
The jury was also instructed that “[a] corporation is entitled to the
same fair trial at your hands as is a private individual” and was told of
the plaintiff’s burden of “providing sufficient evidence to rationally
assess damages.” (R. at 395, 402.) Lastly, the court instructed jurors
that their award could not be based on “mere conjecture, speculation, or
guesswork.” (R. at 402.)
The trial court’s refusal to give Buchta’s tendered instructions does
not constitute reversible error.
Conclusion
While Buchta’s claims concerning instructions are unavailing, the
court’s refusal to permit evidence about the deceased’s personal
consumption was reversible error. We remand for a new trial.
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissents with separate opinion.
In The
INDIANA SUPREME COURT
ELMER BUCHTA TRUCKING, INC., )
Defendant-Appellant, )
)
v. ) 14S01-0002-CV-114
)
CHRISTINA STANLEY and )
LARRY STANLEY as Co-Personal )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE DAVIESS CIRCUIT COURT
The Honorable Robert J. Arthur, Judge
Cause No. 14C01-9612-CT-363
________________________________________________
On Petition To Transfer
March 26, 2001
DICKSON, Justice dissenting.
The Wrongful Death Act declares that damages shall include "lost
earnings of such deceased person resulting from said wrongful act or
omission." I cannot agree that the phrase "lost earnings" is ambiguous. I
believe that the majority errs in construing this phrase and assigning it a
meaning contrary to plain and ordinary usage. I find the analysis of Judge
Staton on behalf of the Court of Appeals to be more satisfactory, and would
affirm the trial court.
-----------------------
[1] Stanley claims that Buchta failed to preserve this issue for
appeal because it did not object to preliminary instructions on damages,
thus establishing the “law of the case.” We disagree. At trial, the
defendant sought to present evidence barred by the trial court’s rulings on
the plaintiffs’ motions in limine. The defendant also made an offer to
prove. Thus, the exclusion issue was fully presented to the court during
trial, and the defendant did not waive the claim of error on appeal. See
Barnes v. Barnes, 603 N.E.2d 1337, 1345 (Ind. 1992).
[2] Specifically, the instruction read:
The personal representatives of the estate are entitled to recover for
the benefit of Michael Stanley’s estate, the reasonable funeral and
burial expenses of Michael Stanley.
The personal representatives of the estate are also entitled to
recover for the benefit of Christina Stanley, Brooke, Matthew and
Casey Stanley, the lost earnings of Michael Stanley resulting from his
death. In determining Michael Stanley’s lost earnings, you may
consider his age, health and normal life expectancy, immediately
before the injury causing his death, and Michael Stanley’s occupation
and earning capacity.
The personal representatives of the estate are also entitled to
recover, for the benefit of Christina Stanley, the reasonable value of
the loss of care, companionship, love and affection that Christina
Stanley reasonably expected to receive from the continued life of her
husband, Michael Stanley.
The personal representatives of the estate are also entitled to
recover for the benefit of Brooke Stanley, the reasonable value of the
loss of care, love and affection, parental training and guidance that
Brooke Stanley reasonably expected to receive from the continued life
of her father, Michael Stanley.
The personal representatives of the estate are also entitled to
recover for the benefit of Matthew Stanley, the reasonable value of
the loss of care, love and affection, parental training and guidance
that Matthew Stanley reasonably expected to receive from the continued
life of his father, Michael Stanley.
Finally, the personal representatives of the estate are also entitled
to recover for the benefit of Casey Stanley, the reasonable value of
the loss of care, love and affection, parental training and guidance
that Casey Stanley reasonably expected to receive from the continued
life of her father, Michael Stanley.
At the time of his death, Michael Stanley was 32 years old and had a
life expectancy of an additional 41 years, which would be to age 73.
(R. at 406-07.)