Andis v. Hawkins

• Citation: 489 N.E.2d 78
• Decision Date: 18 February 1986
• Docket Number: No. 4-485A98,4-485A98
• Parties: John ANDIS and Marie Andis, Plaintiffs-Appellants, v. Thomas L. HAWKINS, Westinghouse Beverage Group, Inc., d/b/a Seven-Up of Indiana, Seven-Up Bottling Company of Indiana, and Westinghouse Transport Leasing Corporation, Defendants-Appellees. 1
• Court: Court of Appeals of Indiana

Page 78

489 N.E.2d 78

John ANDIS and Marie Andis, Plaintiffs-Appellants, v. Thomas L. HAWKINS, Westinghouse Beverage Group, Inc., d/b/a Seven-Up of Indiana, Seven-Up Bottling Company of Indiana, and Westinghouse Transport Leasing Corporation Defendants-Appellees.

No. 4-485A98. ¹

Court of Appeals of Indiana First District.

Feb. 18, 1986.

Peter G. Tamulonis, Donald L. Dawson, Kightlinger Young Gray & DeTrude, Indianapolis, for plaintiffs-appellants.

James R. Fisher, Ice Miller Donadio & Ryan, Indianapolis, for defendants-appellees.

RATLIFF, Judge.

STATEMENT OF THE CASE

John and Marie Andis (Andises) appeal the trial court's granting of summary judgment against them on their claim for punitive damages ² on the ground that punitive damages may not be recovered in a wrongful death action. We affirm.

FACTS

Christina Andis, the Andises' minor daughter, was killed on June 26, 1984, when the Carmel High School driver's education car in which she was riding was struck by the defendant's truck. Andises filed this wrongful death action seeking both compensatory and punitive damages. The trial court ruled, as a matter of law, that punitive damages were not recoverable in such an action.

ISSUE

Andises raise the following issue in this appeal:

Where an assessment of punitive damages otherwise is warranted, are defendants immune from such assessment solely because plaintiffs' underlying cause of action is for wrongful death?

DISCUSSION AND DECISION

Stated differently, the precise issue before us is whether or not punitive damages may be recovered in a wrongful death action. This issue has never been decided by Indiana courts. However, this question has been the subject of many decisions in other jurisdictions. Two distinct lines of authority stem from those cases.

The first, adhered to by a strong majority, holds that absent specific statutory authorization therefor, punitive damages may not be recovered in actions for wrongful death. The rationale for this position is that actions for wrongful death were not allowed at common law, but are of statutory origin. Such statutes being in derogation of common law must be strictly construed and only those damages specified in the statute may be recovered. Since the wrongful death statutes are intended to compensate the decedent's family only for the pecuniary loss sustained by reason of the death, punitive damages being in excess of such compensation are not recoverable. Cases representative of this position are: Peacock v. J.C. Penney Co., Inc. (4th Cir.1985), 764 F.2d 1012 (Virginia law); Jaeger v. Raymark Industries, Inc. (E.D.Wis.1985), 610 F.Supp. 784 (Wisconsin law); Bethel v. Janis (D.C.S.D.1984), 597 F.Supp. 56 (South Dakota law); In re Keyworth (D.Colo.1985), 47 B.R. 966 (Colorado law); Grimshaw v. Ford Motor Co. (1981), 119 Cal.App.3d 757, 174 Cal.Rptr. 348; Magee v. Rose (1979), Del.Super., 405 A.2d 143; Ford Motor Co. v. Stubblefield (1984), 171 Ga.App. 331, 319 S.E.2d 470; Winter v Schneider Tank Lines, Inc. (1982), 107 Ill.App.3d 767, 63 Ill.Dec. 531, 438 N.E.2d 462; Cohen v. Rubin (1983), 55 Md.App. 83, 460 A.2d 1046; Kern v. Kogan (1967), 93 N.J.Super. 459, 226 A.2d 186; Rubeck v. Huffman (1978), 54 Ohio St.2d 20, 8 Ohio Ops.3d 11, 374 N.E.2d 411; Harvey v. Hassinger (1983), 315 Pa.Super. 97, 461 A.2d 814; Wilson v. Whittaker (1967), 207 Va. 1032, 154 S.E.2d 124; and Wangen v. Ford Motor Co. (1980), 97 Wis.2d 260, 294 N.W.2d 437.

Indeed, this view has been said to be the "general rule", 22 Am.Jur.2d, Death, section 136 (1965), the rule being succinctly stated as follows:

"Under what has been described as 'the general rule,' punitive damages cannot be awarded in a wrongful death action unless the governing provision expressly or by clear implication confers the right to such damages. Acceptance of the doctrine that the damages recoverable are for the pecuniary loss sustained by the beneficiaries has been said to exclude, at least indirectly, any punitive damages, even where aggravating circumstances would warrant them in an action between the person injured and the person inflicting the injury."

Cases following the general rule have explained that the right to sue for wrongful death is a statutorily created right which was unknown to the common law. The rights granted are subject to the limitations imposed by statute, including those on damages. Damages in a wrongful death action are limited to the pecuniary loss resulting from the death. Since punitive damages are over and above the amount adequate to compensate for the pecuniary loss, such damages are not recoverable in a wrongful death action. Rubeck, 374 N.E.2d at 413.

The Indiana wrongful death statute Indiana Code section 34-1-1-2, which was in effect on June 26, 1984, provided:

"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 therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission. 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. That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedent's estate for the payment thereof. The remainder of the damages, if any, shall, subject to the provisions of this article, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased. If such decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him, the damages inure to the exclusive benefit of the person or persons furnishing necessary and reasonable hospitalization or hospital services in connection with the last illness or injury of the decedent, performing necessary and reasonable medical or surgical services in connection with the last illness or injury of the decedent, to the undertaker for the necessary and reasonable funeral and burial expenses, and to the personal representative, as such, for the necessary and reasonable costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney's fee, and in case of a death under such circumstances, and when such decedent leaves no such widow, widower, or dependent children, or dependent next of kin, surviving him or her, the measure of damages to be recovered shall be the total of the necessary and reasonable value of such hospitalization or hospital service, medical and surgical services, such funeral expenses, and such cost and expenses of administration, including attorney fees." ³

Andises argue that because the wrongful death statute does not expressly prohibit the award of punitive damages, recovery of such damages should be allowed. That argument has been expressly rejected. In Cohen v. Rubin, the Maryland Court of Special Appeals, addressing this same contention, said:

"We do not accept cross-appellant's argument that punitive damages are recoverable because the statute does not expressly preclude or limit such recovery. The negligence causing death statute is in derogation of the common law and, therefore, should be strictly construed. [Citations omitted] We are of the opinion, therefore, that punitive damages are not recoverable in cases arising under the wrongful death statute unless and until the legislature so provides."

460 A.2d at 1046.

We are not unaware of the minority decisions reaching an opposite conclusion or of the allure of their rationale. For example, it has been stated:

"[P]unitive damages are not compensatory, but are imposed for the purpose of punishment and deterrence to prevent the wrongdoer or others from engaging in the same type of act again. [Citations omitted] This policy should not be thwarted merely because the wrongdoer manages to kill the party wronged or the party happens to die before the action can be brought."

State ex rel. Smith v. Greene (1973), Mo., 494 S.W.2d 55, 60.

The Missouri court, quoting from Leahy v. Morgan (N.D.Iowa 1967), 275 F.Supp. 424, 425, also stated: "The public policy underlying exemplary damages is to punish the wrongdoer. Logic dictates that if the wrongdoer may be punished if his victim lives, then surely he should not escape retribution if his wrongful act causes death." 494 S.W.2d at 60.

Despite the rhetoric of State ex rel. Greene and Leahy, we are constrained to adhere to the general rule. Although no Indiana decision has dealt with this issue, the Seventh Circuit, in a case applying Indiana law, has rejected punitive damages in wrongful death cases. Huff v. White Motor Corp. (7th Cir.1979), 609 F.2d 286, wherein it was held that the purpose of the Indiana wrongful death statute 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," and that the statute does not authorize punitive damages in a wrongful death action. 609 F.2d 286, 297. While federal decisions are not binding upon us, they are persuasive authority. Chaffin v. Nicosia (1974), 261 Ind. 698, 310 N.E.2d 867. Our analysis of prior Indiana decisions concerning the nature of wrongful death actions leads us to conclude the Seventh Circuit correctly determined the Indiana law.

Indiana law is clear that actions for wrongful death are purely statutory in origin....