Forte v. Connerwood Healthcare, Inc.

Decision Date14 December 1998
Docket NumberNo. 49A02-9807-CV-561,49A02-9807-CV-561
Citation702 N.E.2d 1108
PartiesJennipher FORTE, Individually and on Behalf of the Estate of Jeffrey Barcus, Appellants-Plaintiffs, v. CONNERWOOD HEALTHCARE, INC., et al., Appellees-Defendants.
CourtIndiana Appellate Court

Scott A. Benkie, Douglas A. Crawford, Benkie & Crawford, Indianapolis, for Appellants-Plaintiffs.

Patricia Polis McCrory, Sandra S. Carr, Harrison & Moberly, Indianapolis, for Appellees-Defendants.


BAILEY, Judge.

Case Summary

Appellant-Plaintiff Jennipher Forte ("Mother"), individually, and on behalf of the Estate of her deceased son, Jeffrey Barcus, brings this interlocutory appeal of the trial court's grant of partial judgment on the pleadings with respect to Mother's claim for punitive damages in her lawsuit against Appellee-Defendant Connerwood Healthcare, Inc. ("Nursing Home"). We reverse.


Forte raises two issues which we restate and consolidate as:

Whether the trial court erred in entering judgment in favor of Nursing Home with respect to Mother's individual claim for punitive damages associated with her common law claim for the loss of her child's services. 1


The evidence most favorable to the nonmovant Mother reveals that her son was admitted to Nursing Home on October 2, 1995. (R. 18). Over the course of the next seven days, Nursing Home committed several negligent acts and omissions which caused the son's death on October 9, 1995. (R. 17-23). Mother has documented that Nursing Home had exhibited a significant history and pattern of providing substandard and neglectful patient care. (R. 42).

Mother filed the instant lawsuit on her own behalf, individually, and on behalf of her son's estate. (R. 17-23). Mother amended her complaint to include a claim for punitive damages alleging that Nursing Home's negligence was willful and wanton. (R. 42). Nursing Home moved for partial judgment on the pleadings with respect to the issue of punitive damages. (R. 50-52). The trial court granted the motion finding that punitive damages are not allowed under the wrongful death statute. (R. 115-16). 2 This appeal ensued.

Discussion and Decision
A. Standard of Review

As stated in Schuman v. Kobets, 698 N.E.2d 375 (Ind.Ct.App.1998), trans. pending:

Pursuant to Ind. Trial Rule 12(C), the trial court may grant a motion for judgment on the pleadings if a review of the pleadings establishes that no material issue of fact exists and the movant is entitled to judgment as a matter of law. A motion for judgment on the pleadings tests the sufficiency of the complaint to state a redressable claim, not the facts to support it. The test to be applied is whether the allegations of the complaint, taken as true and in the light most favorable to the nonmovant and with every intendment regarded in her favor, sufficiently state a redressable claim. The party moving for judgment on the pleadings admits, for purposes of the motion, all facts well-pleaded and the untruth of any of his own allegations which have been denied. When the pleadings present no material issues of fact, and the facts shown by the pleadings clearly entitle a party to judgment, the entry of judgment on the pleadings is appropriate.

Id. at 377-78. (citations omitted).

B. Punitive Damages in Wrongful Death Cases

At common law, there was no liability in tort for killing another person because actions for personal injury did not survive the death of the injured party. Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind.Ct.App.1994), adopted, 678 N.E.2d 110. Thus, wrongful death actions are purely creatures of statute. Id. Because wrongful death statutes were enacted in derogation of common law, they must be strictly construed. Wolf v. Boren, 685 N.E.2d 86, 88 (Ind.Ct.App.1997), trans. denied; Andis v. Hawkins, 489 N.E.2d 78, 81 (Ind.Ct.App.1986), trans. denied. Therefore, only those damages prescribed by statute may be recovered. Id. Accordingly, Indiana courts have thus far held that punitive damages are not recoverable under the statutes governing wrongful death actions. Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1056 (Ind.Ct.App.1990) (adult wrongful death statute); Andis, 489 N.E.2d at 83 (child wrongful death statute). 3

C. Punitive Damages Associated with Spouse's Loss of Consortium

In Rogers, 557 N.E.2d 1045, although we held that punitive damages were not recoverable under the adult wrongful death statute; we nevertheless held that:

The question of whether punitive damages may be recovered on a spouse's loss of consortium claim, as opposed to one made on behalf of a decedent's estate under the wrongful death statute, has never been decided in Indiana. We hold a claim for punitive damages may be appropriately asserted by [plaintiff] in her individual capacity under these facts.

The purpose of punitive damages is not to compensate or reward the plaintiff; it is to penalize a defendant. The issue is whether the defendant's conduct is so obdurate that it calls for an assessment of punitive damages. If [decedent] were alive to press his own personal injury claims, punitive damages would be available to him if he established Defendants' acts rose to the requisite level of culpability. His death precludes this outcome. It would be anomalous to allow [decedent's] death to insulate Defendants from liability for punitive damages when his widow claims them independently of the wrongful death statute.

Therefore, the trial court properly granted summary judgment on the wrongful death claim to the extent the judgment denies [decedent's] estate punitive damages. However, it erred in so doing to the extent it granted judgment on [plaintiff's] individual claim for punitive damages associated with her alleged loss of consortium.

Id. at 1056-57 (citations and footnote omitted).

D. Common Law Claim for Loss of Services of Child

A wrongful act resulting in an injury to a minor child gives rise to a common law cause of action in favor of the parent for the loss of the child's services. Boyd v. Blaisdell, 15 Ind. 73, 75-76 (1860); Buffalo v. Buffalo, 441 N.E.2d 711, 714 (Ind.Ct.App.1982). When the act of the wrongdoer which deprives the parent of the services of her child causes the child's death, the parent may recover for the services of the child from the time of the injury until his death, and may also recover any incidental damages the child may have suffered, such as medical attendance, care, and nursing up to that time. Jackson v. Pittsburgh, C., C. & St. L. Ry. Co., 140 Ind. 241, 39 N.E. 663 (1895). At common law, "[a] parent might, and still may, without any [wrongful death] statute, recover for loss of services resulting from a wrongful injury to his child, during the period of disability occasioned by such injury, and, if death resulted, for the loss of services during the time intermediate the injury and death." Mayhew v. Burns, 103 Ind. 328, 2 N.E. 793, 794 (1885). In the case where death resulted from the wrongful act, the parent "could recover for loss of services from the date of the commission of the injury only to the date of the death of the son; but by [the wrongful death] statute we have 'added to the common-law remedy of a parent the right to recover all the probable pecuniary loss resulting from the death of a child.' " Thompson v. Town of Fort Branch, 204 Ind. 152, 178 N.E. 440, 442 (1931) (internal quotation from Louisville, N.A. & C. Ry. Co. v. Goodykoontz, 119 Ind. 111, 21 N.E. 472 (1889)). 4

Thus, the common law cause of action has survived and continues to provide a remedy for parents for the loss of their child's services up until the child's death. See Jackson, 39 N.E. at 663; Thompson, 178 N.E. at 442; Mayhew, 2 N.E. at 794. And, as the common law right of recovery ends at the child's death, the child wrongful death statute provides a parent with an additional remedy to recover damages, including the damages related to the loss of the child's services, which pertain to a period of time after a child's death. See IND.CODE § 34-1-1-8(f) (now IND.CODE § 34-23-2-1(f)) (the child wrongful death statute provides that "[d]amages may be awarded ... only with respect to the period of time from the death of the child until [one of three later dates].") (emphasis added). 5

In the present case, Mother, having brought her lawsuit in her individual capacity as well as on the behalf of her son's estate, has stated a redressable common law claim for the loss of her son's services from the date of Nursing Home's first negligent act or omission until the time of his death. As noted above, this common law remedy preceded, and survived the additional remedy provided by the wrongful death statute. 6 See Mayhew, 2 N.E. at 794; Thompson, 178 N.E. at 442.

Thus, based on Rogers, 557 N.E.2d at 1056-57, we hold that Mother has appropriately stated a redressable claim for punitive damages in her individual capacity under the present circumstances. Our decision aligns with Rogers in militating against the anomalous state of the law under the wrongful death statutes which allow death to insulate a defendant from liability for punitive damages. 7 See id.

It is of no moment that the value of Mother's common law claim for her son's services may be of dubious pecuniary value under the present circumstances. In a parent's action based on the loss of her child's services, the actual rendition of services is immaterial. Alvin C. Johnson, Pleading-Actions for Death of Minor Child-Damages, 7 Ind.L.J. 505, 506 (1931). Under Indiana law, all damages attributable to a tort are compensable and, although the jury may not be required to award a substantial amount of damages in any particular case, it must award at least nominal damages. Symon v. Burger, 528 N.E.2d 850, 852 (Ind.Ct.App.1988). An award of punitive damages may be sustained on the basis of nominal damages or upon the invasion of any legally protected interest. Henrichs v. Pivarnik, 588 N.E.2d 537, 544-45 (Ind.Ct.App.1992...

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