Bemenderfer v. Williams, 49S02-0005-CV-296.

• Decision Date: 10 April 2001
• Docket Number: No. 49S02-0005-CV-296.,49S02-0005-CV-296.
• Citation: 745 N.E.2d 212
• Parties: Kathleen Lynn BEMENDERFER, M.D., Appellant (Defendant Below), v. Lois Emogene WILLIAMS, Personal Representative of the Estate of Hoy Sturgeon, Deceased, and Lois Emogene Williams, Administratrix of the Estate of Dorothy L. Sturgeon, Deceased, Appellees (Plaintiffs Below ).
• Court: Indiana Supreme Court

745 N.E.2d 212

Kathleen Lynn BEMENDERFER, M.D., Appellant (Defendant Below), v. Lois Emogene WILLIAMS, Personal Representative of the Estate of Hoy Sturgeon, Deceased, and Lois Emogene Williams, Administratrix of the Estate of Dorothy L. Sturgeon, Deceased, Appellees (Plaintiffs Below ).

No. 49S02-0005-CV-296.

Supreme Court of Indiana.

April 10, 2001.

Karl L. Mulvaney, Nana Quay-Smith, Daniel R. Fagan, Candace L. Sage, Indianapolis, IN, Attorneys for Appellant.

Scott R. Severns, Thomas R. Ruge, Brian A. Statz, Indianapolis, IN, Attorneys for Appellees.

ON PETITION TO TRANSFER

BOEHM, Justice.

We hold that the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages. And, as we also held today in Durham v. U-Haul International, 745 N.E.2d 755 (Ind.2001), under the wrongful death statute loss of consortium damages may be recovered beyond the date of death of the injured spouse for the life expectancy of the deceased spouse or surviving spouse, whichever is less.

Facts and Procedural Background

In 1991, Dorothy Sturgeon shared her home with her eighty-year-old husband, Hoy Sturgeon, who suffered from both Parkinson's disease and Alzheimer's disease. In March of that year, Dorothy contacted her family physician about postmenopausal bleeding. She was referred to Dr. Kathleen Bemenderfer, who performed a dilation & curretage (D & C). The bleeding did not ease, and Dorothy was again referred to Bemenderfer in December of 1992. Bemenderfer recommended another D & C, a hysterectomy, and a laparoscopic examination.¹ A laparoscopy was performed on an outpatient basis on December 21. Lois Emogene Williams, Dorothy's daughter, cared for her mother after the surgery. The day after the procedure, Williams contacted Bemenderfer's office to report that Dorothy was continually vomiting and complaining of pain. She was not allowed to speak directly to Bemenderfer, but Bemenderfer prescribed a different pain medication. The following day, Williams called an ambulance because Dorothy's lips and fingernails were blue, her skin was clammy, and Williams believed she had gone into shock. Dorothy had emergency surgery, but died early the next morning on December 24. The surgeon determined that Bemenderfer had punctured Dorothy's colon during the laparoscopy, leaving a one-centimeter hole through which feces passed into her abdominal cavity. Hoy and Williams filed a proposed medical malpractice complaint with the Indiana Department of Insurance on June 3, 1993, and filed this action in Marion Superior Court on October 21, 1994.

Since Hoy's diagnosis of Alzheimer's in 1990, Dorothy had cared for Hoy in their home. When she died, Hoy was admitted to a nursing home. Hoy did not fare well at the home. He was unable to understand that his wife had died, and spent his time wandering the halls searching for Dorothy and calling out her name. His health steadily deteriorated, culminating in his death on April 9, 1995. Williams was the Sturgeons' only child and is the personal representative of both of their estates. Williams was substituted as the plaintiff in Hoy's action after his death.

After Hoy died, Bemenderfer moved for partial summary judgment, alleging that under the wrongful death statute Dorothy's estate is entitled only to Dorothy's medical, hospital, funeral, and burial expenses. She contended that all other items of damage were foreclosed by Hoy's death prior to the date of judgment. Bemenderfer also contended that Hoy's estate may recover on the loss of consortium claim only for the three days between Dorothy's surgery and her death because a loss of consortium claim does not survive beyond the date of the injured spouse's death.

The trial court initially granted Bemenderfer's motion. Upon reconsideration, however, the trial court vacated its ruling. The Court of Appeals affirmed the denial of partial summary judgment, concluding that: (1) the death of a surviving beneficiary during the pendency of a lawsuit does not limit wrongful death damages to medical, hospital, funeral, burial, and administrative expenses; and (2) loss of consortium damages are recoverable beyond the date of the injured spouse's death when death is the result of the tortfeasor's negligence. Bemenderfer v. Williams, 720 N.E.2d 400, 407-08 (Ind.Ct.App.1999).²

Standard of Review

On appeal, the standard of review of a denial of a motion for partial summary judgment is the same as that used in the trial court. Premier Invs. v. Suites of America, Inc., 644 N.E.2d 124, 127 (Ind. 1994). 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 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 nonmoving party. T.R. 56(H); Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993).

I. Beneficiaries Under the Wrongful Death Statute

Williams argues that the plain language of the wrongful death statute requires only that the statutory beneficiary survive the wrongful death victim in order to recover for wrongful death. Bemenderfer counters with case law stating that a beneficiary must survive until judgment in order to recover under the statute if damages are not to be limited to reasonable medical, hospital, funeral, and burial expenses.

In 1904, the Court of Appeals addressed the same issue under the general wrongful death statute in force at that time and held:

Unless at the commencement of the action, and also at the time of awarding the damages, there be living some person or persons of whom it can be said that the law implies damage from the death of the plaintiff's decedent, or who, being next of kin to him, may be said to have suffered pecuniary loss through his death, there can be no recovery under the statute.

Dillier v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 34 Ind.App. 52, 57, 72 N.E. 271, 273 (1904). In Dillier, the deceased's wife survived him and commenced a wrongful death action, but died before verdict. Although the wife had three surviving brothers, a jury concluded that his wife was the only one dependent on him for support. The court concluded that the wife was the only person statutorily entitled to recovery. Because she was no longer living at judgment, there were no beneficiaries for whom the wrongful death action could be maintained. Id. at 57, 72 N.E. at 273-74.

Several cases have since cited Dillier for the proposition that the surviving beneficiary's right to wrongful death damages abates if the beneficiary dies before verdict. Wabash R.R. Co. v. Gretzinger, 182 Ind. 155, 169, 104 N.E. 69, 75 (1914) ("[A] cause of action under the statute ... in favor of a sole beneficiary would not survive the death of such person."); Thomas v. Eads, 400 N.E.2d 778, 781 (Ind.Ct.App. 1980); Shipley v. Daly, 106 Ind.App. 443, 447-48, 20 N.E.2d 653, 655-56 (1939); Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Reed, 44 Ind.App. 635, 643-45, 88 N.E. 1080, 1082 (1909). Only one of these cases, Shipley, addressed the precise issue presented by this case and Dillier. In Shipley, as in Dillier, the Court of Appeals denied recovery on behalf of a surviving spouse who died before trial. 106 Ind.App. at 447-48, 20 N.E.2d at 655. The disposition of the other three cases did not turn on an analysis of Dillier's holding that a beneficiary must survive until judgment.³

In 1891, the Court of Appeals held that under the survival statute the action of a father for the wrongful death of a child does not abate upon his death. Pennsylvania Co. v. Davis, 4 Ind.App. 51, 54-55, 29 N.E. 425 (1891). Davis dealt with the same sections of the survival statute that Dillier addressed, but nevertheless concluded that the executrix could continue the action. There is no significant distinction between the child wrongful death statute and the general wrongful death statute for these purposes. In Jeffersonville, Madison & Indianapolis Railroad Co. v. Hendricks, 41 Ind. 48, 75-76 (1872), this Court approved a jury instruction that provided: "[T]he death of one or more of [the victim's] children occurring after suit is brought, although such deceased children may have left children of their own, does not abate the suit...." The Court went on to explain that the action would abate if there were no surviving spouse, children, or next of kin, but that the shares of any deceased daughters would simply pass to their off-spring. Id. at 77. Thus, this Court appears to have assumed that the only requirement to take under the wrongful death statute is that the beneficiary survive the wrongful death. Given this conflict, we do not find a consistent body of decisional law that suggests legislative satisfaction with Dillier. In this respect, the courts' handling of this issue is unlike the consistent judicial interpretation we found present in Durham v. U-Haul International, 745 N.E.2d 755, 758 (Ind. 2001).

The statute has been amended since Dillier. The wrongful death statute now reads in relevant part:

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 ... 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

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