Durham ex rel. Estate of Wade v. U-Haul International

Decision Date10 April 2001
Docket NumberNo. 49S02-0005-CV-294.,49S02-0005-CV-294.
Citation745 N.E.2d 755
PartiesBarry DURHAM and Bill Wade, on behalf of the ESTATE OF Kathy WADE, and Barry Durham as natural guardian for Amy Durham and Jason Durham, and Bill Wade, individually, Appellants/Cross Appellees (Plaintiffs Below), v. U-HAUL INTERNATIONAL et al., Appellees/Cross Appellants (Defendants Below).
CourtIndiana Supreme Court

Scott A. Benkie, Indianapolis, IN, Attorney for Appellant.

Jerry Garau, Indianapolis, IN, for Amicus Curiae Indiana Trial Lawyers Association.

Michael C. Peek, Rodney V. Taylor, Indianapolis, IN, Geoffrey L. Blazi, Stephen R. Pennell, Lafayette, IN, Attorneys for Appellee.

James D. Johnson, Angela L. Freel, Evansville, IN, for Amicus Curiae Defense Trial Counsel of Indiana.


BOEHM, Justice.

We adhere to precedent that punitive damages are not recoverable in an action brought under the wrongful death statute. We also hold that the wrongful death statute provides the only remedy against a person causing the death of a spouse and there is no independent claim against this person for loss of consortium. Finally, we hold that loss of consortium damages against a person causing the death of a spouse are not cut off by the death of that spouse. Rather, they are to be measured by the life expectancy of the deceased spouse or the surviving spouse, whichever is shorter.

Factual and Procedural Background

On June 8, 1995, Kathy Wade and Francis J. Radwan, Jr. were traveling eastbound on I-74 in a construction zone divided by a barrier. A U-Haul truck and trailer behind them was unable to stop in response to the slowed traffic, swerved, and struck them in the right rear side. Their car was sent careening across the barrier into the path of an oncoming truck. Radwan was killed instantly and Kathy died within minutes. A State Police report of the accident concluded the brake rotors on the U-Haul were rusted and the truck had no brake fluid, with the result that the U-Haul was unable to brake "during or prior to the impact." No other defects were identified.

Barry Durham is the father of Kathy's two children. Bill Wade was Kathy's husband at the time of her death. Durham and Wade were appointed co-executors of Kathy's estate, and joined as plaintiffs in a wrongful death suit against U-Haul, the State of Indiana, and various highway construction firms. Durham sued on behalf of Kathy's estate and as guardian of the children. Wade sued on behalf of Kathy's estate, and also asserted his own claim for loss of consortium. Both plaintiffs sought punitive damages.

Several defendants moved for partial summary judgment on the issues of punitive damages and Wade's loss of consortium claim. The motions contended that no punitive damages are recoverable under the wrongful death statute and that Wade is limited to a wrongful death claim and may not pursue a separate loss of consortium claim for Kathy's death. The trial court held that (1) Wade's loss of consortium claim could proceed, including a claim for punitive damages; and (2) punitive damages were not recoverable under the wrongful death statute. The Court of Appeals affirmed the holding that a consortium claim could be asserted but reversed the grant of summary judgment on the issue of punitive damages. The court held that principles of statutory construction, case law, and policy support recovery of punitive damages in a wrongful death claim. Durham v. U-Haul Int'l, 722 N.E.2d 355 (Ind.Ct.App.2000).

Three issues are presented: (1) whether Indiana's wrongful death statute allows recovery of punitive damages; (2) if not, whether this violates the federal or state constitution; and (3) may a surviving spouse bring an independent loss of consortium claim for punitive damages or is the surviving spouse restricted to loss of consortium damages under the wrongful death statute.

Standard of Review

On appeal, the standard of review of a summary judgment motion is the same as that used in the trial court: 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 Co. 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 non-moving party. Shell Oil, 705 N.E.2d at 983-84. The review of a summary judgment motion is limited to those materials designated to the trial court. T.R. 56(H); Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993).

I. The Wrongful Death Statute and Punitive Damages

The plaintiffs advance a number of policy considerations supporting their claim that punitive damages should be allowed under Indiana's wrongful death statute. The defendants respond that the issue is one of statutory interpretation and, because it is well settled that punitive damages are not recoverable under the wrongful death statute, any change in the law is a decision for the legislature, not this Court. The Court of Appeals undertook a statutory analysis, examined precedent holding that punitive damages are barred, and concluded that despite concerns as to both, public policy advised in favor of allowing punitive damages in the wrongful death action.

At common law, a cause of action was extinguished by the death of the plaintiff. Because the victim was viewed as the only person wronged by a negligent killing, even a defendant whose negligence caused the plaintiff's death was insulated from liability. This inequity gave rise to wrongful death statutes, first in England in 1846, and soon thereafter in every United States jurisdiction. Durham, 722 N.E.2d at 357-58; accord In re Estate of Pickens v. Pickens, 255 Ind. 119, 125-26, 263 N.E.2d 151, 155 (1970). The wrongful death action is entirely a creature of statute. Northern Indiana Power Co. v. West, 218 Ind. 321, 329, 32 N.E.2d 713, 716-17 (1941), overruled on other grounds by State v. Larue's, Inc., 239 Ind. 56, 154 N.E.2d 708 (1958). Indiana's statute was first adopted in 1852, 2 G. & H. 330, sections 782-84 (1870), then again in 1881, Laws of the State of Indiana, ch. 38, sections 6-29 (1881). It has since been amended on nine different occasions, most recently in 1998. Ind.Code § 34-23-1-1 (1998). In all of its different versions, the general wrongful death statute has never specifically addressed punitive damages. In contrast, the 1999 statute dealing with the wrongful death of unmarried adults with no dependents explicitly bars punitive damages. Id. § 34-23-1-2 (Supp.2000). A third statutory treatment of this issue is found in the 1987 child wrongful death statute, which provides a list of recoverable damages that does not include punitive damages. Id. § 34-23-2-1 (1998).

Plaintiffs contend that, although the wrongful death action is a creature of statute, the disallowance of punitive damages is a "judicially engrafted" rule that can be judicially removed. They cite to Chief Justice Shepard's concurrence in Miller v. Mayberry, 506 N.E.2d 7, 12 (Ind.1987) (Shepard, C.J., concurring in result), superseded by Ind.Code § 34-1-1-8 (1987), in which he disagreed with the majority's view that separation of powers concerns prohibit the judiciary from changing its interpretation of a statute. Plaintiffs also insist that Lindley v. Sink, 218 Ind. 1, 30 N.E.2d 456 (1940), has been mistakenly cited for the proposition that punitive damages are prohibited under the wrongful death statute. They point out that Lindley turned on the unrelated issue of whether the contributory negligence of one beneficiary precludes recovery by all of the beneficiaries. 218 Ind. at 11-12, 30 N.E.2d at 460. Plaintiffs contend that reliance of subsequent cases on Lindley is also misplaced.

The goal of statutory construction is to determine and give effect to the intent of the legislature. Sales v. State, 723 N.E.2d 416, 419-20 (Ind.2000); accord Collier v. Collier, 702 N.E.2d 351, 354 (Ind. 1998); Sullivan v. Day, 681 N.E.2d 713, 717 (Ind.1997). We agree that there is no constitutional bar to revisiting judicial authority interpreting a statute. But if a line of decisions of this Court has given a statute the same construction and the legislature has not sought to change the relevant parts of the legislation, the usual reasons supporting adherence to precedent are reinforced by the strong probability that the courts have correctly interpreted the will of the legislature. Heffner v. White, 221 Ind. 315, 318-19, 47 N.E.2d 964, 965 (1943) ("[S]uch construction should not then be disregarded or lightly treated."); accord Loeb v. Mathis, 37 Ind. 306, 312 (1871). Finally, because the wrongful death statute is in derogation of the common law, it is to be construed strictly against the expansion of liability. Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct.App.1994).

Plaintiffs argue, and the Court of Appeals agreed, that it is significant that the legislature, in all its amendments to the general wrongful death statute, has never explicitly excluded punitive damages, even though it has expressly provided that punitive damages are not recoverable under the unmarried adult with no dependents statute and provided a list of recoverable elements of damages under the child wrongful death statute. I.C. §§ 34-23-1-2, -2-1. Plaintiffs also note the language of the statute itself, which leaves open-ended what damages are recoverable under the statute: "[D]amages 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." Id. § 34-23-1-1. This language, according to plaintiffs, leaves this Court free to allow punitive damages.

Although the general wrongful death statute does not mention punitive damages, the legislature has made some...

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