Forte v. Connerwood Healthcare, Inc.

• Decision Date: 18 April 2001
• Docket Number: No. 48S02-9904-CV-270.,48S02-9904-CV-270.
• Citation: 745 N.E.2d 796
• Parties: Jennipher FORTE, individually and on behalf of the Estate of Jeffrey Barcus, Appellants-Plaintiffs, v. CONNERWOOD HEALTHCARE, INC., d/b/a Anderson Healthcare Center, Linda Stropes, M.D., Respiratory Therapy Co., Transitional Hospitals Corp. of Indianapolis, Tammy Sigler, R.R.T., Sheila Babcock, Paula King, Angela Jessup, Ellen Thompson Seigler, Jane Stanger, Julie Allman, Chris Leeth Beaty, Ruth Levell, Cynthia Coleman, Frances Strege, Lenora Hampton, Shirley Nance Spradlin, Sheryl McDonald, Anna Hoskins, Cathy Swafford, Paulette Czerwin, Connie McKinney, Patricia Smith (Lewis), Jerri Overman, Patty Leonard, Diane West, Sue Slack, Debbie Metzger, Cathy Haynes, and Unknown Nurses, Appellees-Defendants.
• Court: Indiana Supreme Court

745 N.E.2d 796

Jennipher FORTE, individually and on behalf of the Estate of Jeffrey Barcus, Appellants-Plaintiffs, v. CONNERWOOD HEALTHCARE, INC., d/b/a Anderson Healthcare Center, Linda Stropes, M.D., Respiratory Therapy Co., Transitional Hospitals Corp. of Indianapolis, Tammy Sigler, R.R.T., Sheila Babcock, Paula King, Angela Jessup, Ellen Thompson Seigler, Jane Stanger, Julie Allman, Chris Leeth Beaty, Ruth Levell, Cynthia Coleman, Frances Strege, Lenora Hampton, Shirley Nance Spradlin, Sheryl McDonald, Anna Hoskins, Cathy Swafford, Paulette Czerwin, Connie McKinney, Patricia Smith (Lewis), Jerri Overman, Patty Leonard, Diane West, Sue Slack, Debbie Metzger, Cathy Haynes, and Unknown Nurses, Appellees-Defendants.

No. 48S02-9904-CV-270.

Supreme Court of Indiana.

April 18, 2001.

Scott A. Benkie, Douglas A. Crawford, Benkie & Crawford, Indianapolis, Indiana, Attorneys for Appellants.

Patricia Polis McCrory, Thomas G. Safley, Paul C. Sweeney, Harrison & Moberly, Indianapolis, Indiana, Attorneys for Appellants.

ON PETITION TO TRANSFER

RUCKER, Justice

In this opinion we conclude that punitive damages are not recoverable under the Child Wrongful Death Statute. We also conclude that a parent's common law claim for loss of a child's services survives enactment of the Child Wrongful Death Statute. However, under the common law, punitive damages are not a part of the claim and therefore are not recoverable.

Facts

On October 2, 1995, Jennipher Forte ("Mother") placed her five-year-old developmentally disabled son in the custody of Connerwood Health Care, Inc., a nursing home doing business as Anderson Healthcare Center.¹ According to Mother, over the course of the next several days, the nursing home committed several acts of negligence that led to her son's death on October 9, 1995. Thereafter, on her own behalf and on behalf of her son's estate Mother sued the nursing home along with several members of its medical staff (referred to collectively as "Defendants"). In her initial complaint, Mother sought compensatory damages only. However, alleging that Defendants' negligence was willful and wanton, Mother later amended her complaint to include a claim for punitive damages. After filing their answer, Defendants moved for partial judgment on the pleadings with respect to punitive damages, contending that they are not available under the Child Wrongful Death Statute.² In response, Mother argued that not only was she entitled to recover punitive damages under the statute, but also she was entitled to punitive damages for loss of consortium apart from the statute. The trial court granted Defendants' motion and Mother pursued an interlocutory appeal.

On review, the Court of Appeals agreed that the trial court properly granted Defendants' motion concerning Mother's claim to a statutory right of punitive damages. See Forte v. Connerwood Healthcare, Inc., 702 N.E.2d 1108, 1111 (Ind.Ct. App.1998). However, the Court of Appeals determined that the allegations in Mother's complaint established facts entitling Mother to punitive damages on another theory — common law loss of services. Id. at 1113. Having previously granted transfer, we affirm the trial court.

Discussion

I. Punitive Damages Under the Child Wrongful Death Statute

Although this Court has never addressed the issue, we agree with the Court of Appeals that punitive damages are not recoverable under the Child Wrongful Death Statute. At common law, there was no liability in tort for killing another because actions for personal injury did not survive the death of the injured party. Gann v. Worman, 69 Ind. 458, 461 (1880); Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind.Ct.App.1994), adopted by, 678 N.E.2d 110 (Ind.1997). Our legislature first authorized a cause of action for the death of a minor in 1851, the same year Indiana's second constitution was adopted.³ Since 1851, the statute has been amended several times, the latest of which was in 1998.⁴ Until 1987, the changes in the statute from its original enactment were basically those of form. Otherwise the statute remained essentially the same.

Although the predecessor to the 1987 statute contained no provisions concerning damages, case law severely restricted the damages recoverable in such actions to allow recovery only for pecuniary losses sustained by the parents. See Miller v. Mayberry, 506 N.E.2d 7, 11 (Ind.1987), aff'd, 546 N.E.2d 834 (Ind.1989) (superceded by statute). The proper measure of damages for the death of a minor child was determined to be the value of the child's services from the time of death until majority, taken in connection with the child's prospects in life, less the cost of support and maintenance, to which may be added, in a proper case, the expense of care and attention made necessary by the injury, funeral expenses, and medical services. Thompson v. Town of Fort Branch, 204 Ind. 152, 164, 178 N.E. 440, 444 (1931); Boland v. Greer, 409 N.E.2d 1116, 1119 (Ind.Ct.App.1980). As the Court of Appeals observed, "recovery for wrongful death of a child has been restricted to the actual pecuniary loss sustained." Andis v. Hawkins, 489 N.E.2d 78, 83 (Ind.Ct.App. 1986).

With enactment of the 1987 amendment, the legislature set forth the recoverable damages for the first time.⁵ Consistent with then existing case authority, the statute excluded any reference to punitive damages. The statute has been amended twice since 1987, but the damages portion has remained unchanged.⁶

Concerning the general wrongful death statute, it has been held that because an action for wrongful death did not exist at common law, the statute should be strictly construed against the expansion of liability. Thomas v. Eads, 400 N.E.2d 778, 780 (Ind.Ct.App.1980). The same is true for the Child Wrongful Death Statute. "In reviewing such a statute, we presume that the legislature did not intend to make any changes in the common law beyond those declared either in express terms or by unmistakable implication." South Bend Cmty. Schs. v. Widawski, 622 N.E.2d 160, 162 (Ind.1993).

We acknowledge that for more than a century, Indiana common law has permitted the recovery of punitive damages under appropriate circumstances. See, e.g., Citizens' St. R.R. Co. of Indianapolis v. Willoeby, 134 Ind. 563, 569, 33 N.E. 627, 629 (1893); Louisville, New Albany & Chi. Ry. Co. v. Wolfe, 128 Ind. 347, 352-53, 27 N.E. 606, 607 (1891). Thus it may be argued that by enacting the Child Wrongful Death Statute, the legislature did not intend to change the common law with respect to punitive damages. See, e.g., Louisville, New Albany & Chi. Ry. Co. v. Goodykoontz, 119 Ind. 111, 112, 21 N.E. 472, 472 (1889) (declaring that the Child Wrongful Death Statute added to the common law remedy by allowing a parent to recover all the probable pecuniary loss resulting from the death of a child).⁷ However, even assuming that punitive damages may have been recoverable at common law, at least since the 1987 amendment, the Child Wrongful Death Statute has contained an exclusive list of damages recoverable by a child's parent or guardian. Absent in the list is any reference to punitive damages. "When certain items or words are specified or enumerated in a statute then, by implication, other items or words not so specified or enumerated are excluded." Health & Hosp. Corp. of Marion County v. Marion County, 470 N.E.2d 1348, 1355 (Ind.Ct.App.1984). We conclude, therefore, that even if the common law allowed punitive damages in an action for the wrongful death of a child, our legislature has exercised its prerogative to change the common law by "unmistakable implication." See South Bend Cmty. Schs., 622 N.E.2d at 162. Accordingly, the trial court properly granted Defendants' motion for partial judgment on the pleadings concerning this issue.

II. Common Law Claim for Loss of Services of a Child

We first address a preliminary matter. In their Brief in Support of Petition to Transfer, Defendants question the Court of Appeals' determination that Mother could pursue a common law claim for loss of services of her child. According to Defendants, Mother never made a claim for loss of services; rather, her claim was for a loss of consortium. Defendants argue that the two are not the same. We agree the claims are different.⁸ However, because of the procedural posture of this case, the Court of Appeals was correct in addressing the issue.

After Mother filed her amended complaint and Defendants filed their answer, Defendants moved for judgment on the pleadings under the provisions of Indiana Trial Rule 12(C), which the trial court granted. A motion for judgment on the pleadings should be granted "`only where it is clear from the face of the complaint that under no circumstances could relief be granted.'" Culver-Union Twp. Ambulance Serv. v. Steindler, 629 N.E.2d 1231, 1235 (Ind.1994) (quoting Martin v. Shea, 463 N.E.2d 1092, 1093 (Ind.1984)). In this case, it is true that Mother's complaint does not mention the loss of services of her child. However, our reading of the complaint shows factual allegations sufficient to support a claim for loss of services. Thus we see no problem with the Court of Appeals addressing the issue. For reasons discussed below, however, we disagree with our colleagues that punitive damages are recoverable under a claim for loss of services.

The origins of a common law claim for loss of services are generally traced to 13th Century Roman law. Francis Bowes Sayre, Inducing Breach of Contract, 36 Harv. L.Rev. 663, 663-64 (1923). The Roman system allowed the head of the household to pursue a claim stemming from a violent action or insult upon any member of the household. Id. at 665. English common law followed suit in the 14th Century when it allowed a master, in order to protect his property right in his servant, to initiate a lawsuit to compensate him for lost services due to an intentional injury to his property. Id.; see also ...