Deaconess Hosp., Inc. v. Gruber

• Decision Date: 17 July 2003
• Docket Number: No. 82A01-0211-CV-439.,82A01-0211-CV-439.
• Citation: 791 N.E.2d 841
• Parties: DEACONESS HOSPITAL, INC.; The Heart Group, P.C.; Edward N. Moore, M.D., and Gordon Vogel, M.D., Appellants-Defendants, v. Gunthild GRUBER, Personal Representative of the Estate of Irma Upshaw, Deceased, Appellee-Plaintiff.
• Court: Indiana Appellate Court

791 N.E.2d 841

DEACONESS HOSPITAL, INC.; The Heart Group, P.C.; Edward N. Moore, M.D., and Gordon Vogel, M.D., Appellants-Defendants, v. Gunthild GRUBER, Personal Representative of the Estate of Irma Upshaw, Deceased, Appellee-Plaintiff.

No. 82A01-0211-CV-439.

Court of Appeals of Indiana.

July 17, 2003.

William Statham, Statham Allega Jessen & Rudisill, Evansville, IN, John Christopher Wall, Wilkinson Goeller Modesitt Wilkinson & Drummy, Terre Haute, IN, Michele S. Bryant, Bamberger Foreman Oswald & Hahn, Evansville, IN, Attorneys for Appellants.

David O. Givens, Allyn & Givens, Mt. Vernon, IN, Attorney for Appellee.

OPINION

SHARPNACK, Judge.

In this interlocutory appeal, Deaconess Hospital, Inc., The Heart Group, P.C., Edward N. Moore, M.D., and Gordon Vogel, M.D. (collectively "Medical Providers") appeal the trial court's denial of their motion for partial summary judgment on a wrongful death claim brought by Gunthild Gruber ("Gunthild"), Personal Representative of the Estate of Irma Upshaw ("Irma"). The Medical Providers raise one issue, which we restate as whether the trial court erred when it determined that genuine issues of material fact exist as to whether Gunthild was Irma's dependent. We reverse and remand.

The relevant facts designated by the parties in the partial summary judgment proceeding follow. Irma was born in 1919 in Czechoslovakia. She later married Karl Lassman, and they had one daughter, Gunthild. Lassman died while serving in the army in Russia in 1945. Also in 1945, Irma and her then four-year-old daughter were required to leave Czechoslovakia. Irma and Gunthild walked to what became East Germany and later escaped into West Germany. In 1959, Irma met and married James Upshaw, a United States serviceman stationed in West Germany. Gunthild met and married Herbert Gruber. The Upshaws soon made their home in Mt. Vernon, Indiana, and the Grubers followed them to Mt. Vernon a few months later.

In Mt. Vernon, Irma and Gunthild were partners in operating Gundi's Restaurant. For thirty-five years, Irma managed the restaurant and worked seven days a week, from 3:30 a.m. until noon and 2:00 p.m. until 8:00 p.m. Gunthild worked eight to nine hours a day, with days off at regular intervals. Irma lived in an apartment above the restaurant, and most of her living expenses were paid through the restaurant accounts. In fact, both Irma and Gunthild paid substantial personal expenses from the restaurant accounts. Irma never bought presents or other items for Gunthild or her grandchildren. Most of Irma's earnings "went to [Gunthild] or went back into the Restaurant." Appellant's Appendix at 351, 364.

Irma and Gunthild split the profits from the restaurant evenly until 1994. From 1995 to 1999, Gunthild received sixty percent of the profits and Irma received forty percent of the profits. The division of profits did not reflect the actual percentage of work performed by Irma and Gunthild at the restaurant. Irma worked more hours and received less of the profits than Gunthild because Irma wanted to "make [Gunthild's] life easier." Id. at 363. According to Gunthild, she "was given approximately 80% to 90% of the profits, because [Irma] felt that with [Gunthild's] family, husband, and two children, [she] should have the greater income." Id. Irma often said, "it was because [Gunthild] had so little as [she] was growing up and because the time and place that [they] lived in caused her to want to give [Gunthild] all of the things of which [she] was deprived, during [her] childhood and until [they] came to the United States." Id. at 364. However, Gunthild also testified that she and her husband are self-sufficient, and Gunthild's adult children are self-sufficient. In 1999, seventy-nine-year-old Irma had a heart attack and died. Gunthild now works approximately fifteen hours per day but receives all of the profits from the restaurant.

Gunthild filed a wrongful death complaint against the Medical Providers alleging a failure to provide timely medical care. The Medical Providers filed a motion for partial summary judgment, arguing that Irma had no dependents and that recoverable damages were limited to the recovery of reasonable medical, hospital, funeral and burial expenses, and the reasonable costs of administration. The trial court denied the Medical Provider's motion for partial summary judgment as follows:

The issue before the Court is whether evidence exists from which a jury could find that the Respondent was a "dependent" under the terms of the Indiana Wrongful Death Act. Although both parties were able to cite cases in support of their position, the latest decision on the issue seems to be the case of Necessary v. Inter-State Towing, 697 N.E.2d 73 (Ind.App.1998). In that case, the two adult sons who were claiming dependency had annual incomes of approximately $40,000.00 and $23,000.00. In that case, the Court of Appeals found that the issue of their partial dependency was a jury question. In addition, the case of Lustick v. Hall, 403 N.E.2d 1128, 1132 (Ind.App.1980) provides that partial dependency satisfies the Wrongful Death Act requirement and that the degree of dependency was a jury question.

In this case, the Court finds that there is evidence to support the conclusion that the economic loss occasioned by the death of the decedent was more than a simple loss to the business in which she participated. Rather, there is evidence that the decedent essentially took most of the income to which she was entitled from her business efforts and gave it to the Respondent for her use. Consequently, the Court finds that there are genuine issues of material fact in this case on the issue of dependency.

Appellant's Appendix at 5-6.

The sole issue is whether the trial court erred when it determined that genuine issues of material fact exist as to whether Gunthild was Irma's dependent. On appeal, the standard of review of a grant or denial of a motion for summary judgment is the same as that used in the trial court: summary judgment is appropriate only where the designated evidence shows that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Corr v. Am. Family Ins., 767 N.E.2d 535, 537-538 (Ind.2002). The moving party must designate sufficient evidence to eliminate any genuine factual issues, and once the moving party has done so, the burden shifts to the nonmoving party to come forth with contrary evidence. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 460-461 (Ind.2002). The court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmoving party, and resolve all doubts against the moving party. Id.

Where a trial court enters findings of fact and conclusions thereon in granting a motion for summary judgment, as the trial court did in this case, the entry of specific findings and conclusions does not alter the nature of our review. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions thereon. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.

Gunthild brought the action against the Medical Providers as a wrongful death action. Wrongful death actions are purely statutory. Estate of Sears ex rel. Sears v. Griffin, 771 N.E.2d 1136, 1138 (Ind.2002). The Wrongful Death Act, Ind.Code § 34-23-1-1 (1998) (formerly Ind.Code § 34-1-1-2, repealed by Pub.L. 1-1998, § 221), provides in relevant part that:

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.

(emphasis added). Because wrongful death actions are in derogation of common law, the statute creating this right of action must be strictly construed. Wolf v. Boren, 685 N.E.2d 86, 88 (Ind.Ct.App. 1997), trans. denied.

Our supreme court set a standard for dependency in the context of wrongful death actions in New York Cent. R.R. Co. v. Johnson, 234 Ind. 457, 127 N.E.2d 603 (1955). The court stated that "proof of dependency must show a need or necessity of support on the part of the person alleged to be dependent ... coupled with the contribution to such support by the deceased." Id. at 465, 127 N.E.2d at 607.

Dependency is based on a condition and not a promise, and such dependency must be actual, amounting to a necessitous want on the part of the beneficiary and a recognition of that necessity on the part of decedent, an actual dependence coupled with a reasonable expectation of support or with some reasonable claim to support from decedent. The mere fact that deceased occasionally contributed to the support of the beneficiary in an irregular way, is not sufficient to support the action....

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