ESTATE OF KUBA BY KUBA v. Ristow Trucking Co., Inc.

• Decision Date: 30 May 1986
• Docket Number: No. S 84-401.,S 84-401.
• Citation: 660 F. Supp. 1069
• Parties: In re the ESTATE OF Earnest KUBA, by its Executrix, Evelyn C. KUBA, Plaintiff, v. RISTOW TRUCKING COMPANY, INC.; Wilmer Ristow, d/b/a Ristow Trucking, Defendants.
• Court: U.S. District Court — Northern District of Indiana

660 F. Supp. 1069

In re the ESTATE OF Earnest KUBA, by its Executrix, Evelyn C. KUBA, Plaintiff, v. RISTOW TRUCKING COMPANY, INC.; Wilmer Ristow, d/b/a Ristow Trucking, Defendants.

No. S 84-401.

United States District Court, N.D. Indiana, South Bend Division.

May 30, 1986.

William B. Balyeat, Lima, Ohio, Sherrill William Colvin, John O. Feighner, Fort Wayne, Ind., for plaintiff.

William F. McNagny, Charles W. McNagny, Fort Wayne, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This case is a wrongful death case tried under the substantive law of the State of Indiana and based on diversity of citizenship jurisdiction under Title 28 U.S.C. § 1332.

On April 11, 1986 a verdict was returned in favor of the plaintiff in the sum of $250,000.00 and judgment was entered thereon. On April 21, 1986 the plaintiff filed a motion for a new trial or in the alternative a motion to alter or amend judgment and for additur, invoking Rule 59 of the Federal Rules of Civil Procedure.

In general, the guidance for dealing with a motion for new trial in this context has been dealt with recently and extensively by this court in Foster v. Continental Can Corporation, 101 F.R.D. 710 (N.D.Ind. 1984) as affirmed in 783 F.2d 731 (7th Cir.1986).

This case was tried vigorously and effectively by very able and experienced counsel and the jury verdict is well within the evidence and the law.

Oral argument was held in open court in South Bend, Indiana on the 15th of May 1986 on this post-verdict motion.

In requesting this court to engage in the process of additur plaintiff's counsel basically reargues the case as he did to the jury in final argument. Although convinced that this court may have the authority to engage in the process of additur it chooses not to do so in this case. The substantive law of Indiana does permit additur. See Coffel v. Perry, 452 N.E.2d 1066 (Ind.App. 1983). This court fails to find in the record of this case such abuse of discretion and such a miscarriage of justice to warrant the interference with the normal decisional processes of a civil jury under Amendment VII of the Constitution of the United States.

The only issue meriting more than summary disposition in this case are those relating to the issues raised under Obremski v. Henderson, 487 N.E.2d 827 (Ind.App. 1986). It is for that reason and that reason alone that oral argument was granted on the post-trial motion and it for that reason and that reason alone that the court has taken the trouble to engage in independent research and to state the reasons for the denial of the motion for a new trial. At the outset of the discussion it is necessary to give credit to the Honorable Gene B. Lee, United States Magistrate, for much of the judicial spadework that has been done in regard to the implication of Obremski. Attached hereto and marked Appendix A is a recently filed decision in S 85-302, Rys v. Clark, May 15, 1986, by that magistrate which has greatly influenced the decisional thinking of this court.

The decision of Magistrate in Rys v. Clark is extremely helpful in its careful indepth analysis but it does not completely answer the question posed here in this civil wrongful death case.

The court must look to additional Indiana authority and finds the same in Andis v. Hawkins, 489 N.E.2d 78 (Ind.App.1986), decided on February 18, 1986 approximately one month after Obremski. At page 81 Judge Ratliff, speaking for that Court, stated:

Indiana law is clear that actions for wrongful death are purely statutory in origin. Northern Indiana Power Co. v. West (1941), 218 Ind. 321, 32 N.E.2d 713; Britt v. Sears (1971), 150 Ind.App. 487, 277 N.E.2d 20, trans denied. Such actions did not exist at common law, but the right is given solely by statute. Kirkpatrick v. Bowyer (1960), 131 Ind. App. 86, 169 N.E.2d 409. Since wrongful death actions did not exist at common law, but are purely creatures of statute, the statute creating such right of action must be strictly construed. Cunningham v. Werntz (7th Cir.1962), 303 F.2d 612; Thomas v. Eads (1980), Ind.App., 400 N.E.2d 778. Thus, only those damages prescribed by the statute may be recovered. Huff. The purpose of the wrongful death statute is not to compensate for some injury to the decedent or to punish someone who has caused a wrongful death. Rather, the purpose is to provide a means whereby the decedent's spouse or dependents may be compensated for the loss which they have sustained by reason of the death. Mehler v. Bennett (S.D.Ind.1984), 581 F.Supp. 645.

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. Magenheimer v. State ex rel. Dalton (1950), 120 Ind.App. 128, 90 N.E.2d 813. "Pecuniary loss has been defined as the reasonable expectation of pecuniary benefit from the continued life of the deceased, to be inferred from proof of assistance by way of money, services or other material benefits rendered by the deceased prior to his death." Lustic v. Hall (1980 Ind.App.), 403 N.E.2d 1128, 1131, trans. denied, Such loss may include the loss to the children of their parent's care, Thomas v. S.H. Pawley Lumber Co. (7th Cir.1962), 303 F.2d 604, and the reasonable value of the loss of care, love and affection sustained by the decedent's spouse and the loss of parental training and guidance sustained by the children during their minority. Richmond Gas Corp. v. Reeves (1973), 158 Ind.App. 338, 302 N.E.2d 795. But the key is the pecuniary loss suffered by those persons whom it is the purpose of the wrongful death statute to benefit.

The wrongful death statute, specifies the elements of damage which may be recovered. Punitive damages are not included. Therefore, we conclude that in an action for wrongful death of an adult brought pursuant to Indiana Code section 34-1-1-2, punitive damages may not be recovered.

In a strict literal sense the damages contemplated in Obremski may not be explicitly labeled as punitive although the tone and tenor of that decision dealing with the level of intent necessary to trigger such treble damages speak to the basic reasons for awarding punitive damages. By definition punitive damages are non-compensatory. By basic definition under the reasoning and result in Obremski the treble damages are also non-compensatory.

There is much discussion in this case by plaintiff's counsel with regard to pecuniary loss and whether or not the damages contemplated in Obremski fall within the ambit of that concept. It is the opinion of this court that the answer under the law of Indiana as it now stands must be in the negative as to that question.

As indicated at the conference on instructions and during the trial of this case this court remains convinced that Andis v. Hawkins precludes an award of treble damages under Obremski.

Once that decision is made any bases for a new trial or the trebling of the $250,000.00 verdict in this case or any part thereof is without foundation.

Therefore, the post-trial motion of the plaintiff is now in all things DENIED. IT IS SO ORDERED.

APPENDIX A

David C. Rys, Plaintiff,

v.

Christine M. Clark, Defendant.

Civil No. S 85-302.

MEMORANDUM OF DECISION AND ORDER

GENE B. LEE, United States Magistrate.

This matter is before the Court,¹ on plaintiff's March 3, 1986, "Motion for Leave to File Amended Complaint." Defendant filed a memorandum in opposition to that motion on March 13, 1986. The plaintiff failed to respond to defendant's memorandum. For the reasons set forth below plaintiff's motion for leave to file an amended complaint will be denied.

DISCUSSION

The relevant facts need only be recited briefly and are as follows:

This is a diversity action arising out of an automobile collision. Plaintiff is a citizen of the State of Illinois and defendant is a resident of the State of Indiana.

In the original complaint filed in this cause, plaintiff alleged that on July 28, 1983, on State Road 39 in LaPorte County, Indiana, defendant negligently operated a motor vehicle which resulted in a collision with a vehicle in which plaintiff was a passenger. As a result of the collision plaintiff alleged that he "sustained a fracture to his right leg and was otherwise injured; prevented from transacting his business, suffered great pain of body and mind and incurred expenses for medical attention and hospitalization." (Complaint para. 3). In his prayer for relief, plaintiff demanded five hundred thousand dollars together with costs.

In his proffered amended complaint, plaintiff adds a second count which is almost identical to the first count with two exceptions: plaintiff alleges in paragraph two that defendant was intoxicated and operated the vehicle in a reckless manner and adds a fourth paragraph which states "that plaintiff suffered a pecuniary loss as defined under I.C. XX-X-XX-X as a result of defendant's violation of I.C. 35-43." (Amended Complaint Count II para. 4). As a result of that addition plaintiff (in addition to five hundred thousand dollars) seeks treble damages and reasonable attorney's fees.

As indicated, jurisdiction of this action is based upon diversity of citizenship and this Court must initially discuss which state's law governs this litigation. Since this Court is sitting in Indiana, the Court will look to Indiana's choice of law rules to determine which state's substantive law applies. Klaxon v. Stentor Mfg. Co., Inc., 313 U.S. 487, 491, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); White v. United States, 680 F.2d 1156, 1158 (7th Cir.1982); Sharp v. Egler, 658 F.2d 480, 483 n. 2 (7th Cir. 1981).

It has been stated with respect to conflicts of law questions in Indiana that "the law in this state while being far from clear is not indiscernible." Lee v. Lincoln Nat'l Bank & Trust Co., 442 N.E.2d 1147, 1148 (Ind.App.1982) trans. denied. The reasons for that statement are clear.

In 1908, the Indiana...