Foster v. Evergreen Healthcare, Inc.

• Decision Date: 17 August 1999
• Docket Number: No. 49A04-9808-CV-422.,49A04-9808-CV-422.
• Citation: 716 N.E.2d 19
• Parties: Patricia FOSTER, as Personal Representative of the Estate of Donald E. Foster, Appellant-Plaintiff, v. EVERGREEN HEALTHCARE, INC., Evergreen Healthcare Ltd., L.P. d/b/a Pine Tree Manor Symmons Industries, Inc., Arjo Manufacturing Co., Inc., Arjo, Inc. and Gordon Plumbing Services, Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

716 N.E.2d 19

Patricia FOSTER, as Personal Representative of the Estate of Donald E. Foster, Appellant-Plaintiff, v. EVERGREEN HEALTHCARE, INC., Evergreen Healthcare Ltd., L.P. d/b/a Pine Tree Manor Symmons Industries, Inc., Arjo Manufacturing Co., Inc., Arjo, Inc. and Gordon Plumbing Services, Inc., Appellees-Defendants.

No. 49A04-9808-CV-422.

Court of Appeals of Indiana.

August 17, 1999.

H. Kennard Bennett, Severns & Bennett, P.C., Indianapolis, Indiana, Jack Harang, Law Offices of Jack Harang, Mandeville, Louisiana, Attorneys for Appellant.

Patricia Polis McCrory, Thomas G. Safley, Paul C. Sweeney, Harrison & Moberly, Indianapolis, Indiana, Attorneys for Appellees Evergreen Healthcare, Inc. and Evergreen Healthcare, Ltd., L.P. d/b/a Pine Tree Manor.

OPINION

BROOK, Judge

Case Summary

Appellant-plaintiff Patricia Foster ("Patricia"), as personal representative of the estate of her husband Donald E. Foster ("Donald"), appeals the trial court's grant of the motion for partial summary judgment filed by appellees-defendants Evergreen Healthcare, Inc. and Evergreen Healthcare, Ltd., L.P., d/b/a Pine Tree Manor (collectively referred to as "Evergreen") on the issue of punitive damages. Evergreen appeals the trial court's denial of its motion for partial summary judgment with respect to Patricia's claim for breach of contract. We affirm in part, reverse in part, and remand this cause for further proceedings.

Issues

The parties present several issues for our review, which we combine and restate as follows:

(1) whether the trial court erred in granting Evergreen's motion for partial summary judgment on the issue of punitive damages; and

(2) whether the trial court erred in denying Evergreen's motion for partial summary judgment with respect to Patricia's claim for breach of contract.

Facts and Procedural History

The facts relevant to our review indicate that on March 15, 1995, Donald was a resident at Pine Tree Manor, a nursing facility operated by Evergreen and located in Indianapolis, Indiana. Early that morning, an employee of Pine Tree Manor awakened Donald for a whirlpool bath.¹ When the employee lowered Donald into the tub, the water burned Donald over approximately 50 percent of his body. Donald died on September 8, 1995, of unrelated causes.

On March 7, 1997, Patricia filed her second amended complaint ("complaint"), in which she asserted various claims against all named co-defendants, including claims against Evergreen for negligence, gross negligence,² breach of contract,³ and breach of fiduciary duty and duty of good faith and fair dealing; she also sought judgment "in an amount commensurate with the damages suffered by Donald Foster [and] for punitive and/or exemplary damages as allowed by law." On April 30, 1997, Evergreen filed its answer to Patricia's complaint.

On May 4, 1998, Evergreen filed a motion for partial summary judgment on the claims listed above, including the punitive damage claim. In support of its motion on the punitive damage claim, Evergreen cited Mundell v. Beverly Enterprises-Indiana, Inc., 778 F.Supp. 459 (S.D.Ind. 1991), which is the only decision to date that has interpreted Indiana's penultimate version of its "survival statute."⁴ In Mundell, Judge Tinder held that the survival statute prohibits a personal representative from seeking punitive damages in a personal-injury action brought on behalf of the decedent's estate. Evergreen also argued that the alleged breach of contract was actually an alleged breach of a duty of care sounding in negligence, and that Patricia could not sue both in contract and in tort for the same claim.

Patricia filed her response to Evergreen's motion on June 25, 1998. With respect to the issue of punitive damages, Patricia asserted that the Mundell court had incorrectly interpreted Indiana's survival statute, which "clear[ly] and unambiguous[ly]" allows for the recovery of punitive damages; she also argued that under Mundell, "wrongdoers would merely need to outlast the frail or aged claimant and escape the imposition of punitive damages that might otherwise result from trial." As for the breach-of-contract claim, Patricia contended that Ind. Trial Rule 8(E)(2) "clearly allows a complaint to state alternative theories of recovery," and that "the contractual claims of the plaintiff remain unique from the claims of negligence" because of the defendant's alleged failure to provide certain care and services in conformity with the contract itself and with applicable Medicaid and Medicare regulations. Evergreen filed a reply to Patricia's response on July 6, 1998.

The trial court conducted a hearing on Evergreen's motion for partial summary judgment on July 9, 1998. On July 31, 1998, the trial court issued an order granting Evergreen's motion with respect to Patricia's claims "for breach of fiduciary duty, duty of good faith, fair dealing, and punitive damages" and denied the motion with respect to her breach-of-contract claim. The trial court specifically found that "[p]unitive damages cannot be recovered under the Indiana Survival Statute," and that "it is entirely proper for a plaintiff to seek recovery in both tort and contract, or to plead in the alternative."

On August 14, 1998, Patricia filed a motion to certify the trial court's interlocutory order for appeal pursuant to Ind. Appellate Rule 4(B)(6) and Ind. Trial Rule 56(C) on the issue of punitive damages, which was granted by the trial court on August 17, 1998.⁵

Discussion and Decision

Standard of Review

"The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which can be determined as a matter of law." Bamberger & Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d 933, 936 (Ind.Ct.App.1996); see T.R. 56(C) (summary judgment "shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."). In reviewing a motion for summary judgment, we apply the same standard as the trial court, and we resolve any question of fact or an inference to be drawn therefrom in favor of the non-moving party. Bamberger, 665 N.E.2d at 936. This Court will affirm a trial court's grant of summary judgment if it is sustainable on any theory supported by the designated evidence. Id. The specific findings entered by the trial court in this case may aid appellate review, but they are not binding on this Court. Five Star Concrete, L.L.C. v. Klink, Inc., 693 N.E.2d 583, 585 (Ind.Ct.App.1998). Finally, the party appealing the trial court's denial or grant of summary judgment bears the burden of persuading this Court that the trial court erred. City of New Haven v. Chemical Waste Management of Indiana, L.L.C., 701 N.E.2d 912, 922 (Ind.Ct.App.1998),trans. denied (1999).

I. Punitive Damages and Indiana's Survival Statute (IND.CODE § 34-9-3-4)

"At common law, actions Ex delicto⁶ did not survive the death of either party." Merimee v. Brumfield, 397 N.E.2d 315, 316 (Ind.Ct.App.1979). This rule has been materially modified over the years by both statutory enactments and court decisions. Id. IND.CODE § 34-1-1-1, which remained essentially intact from 1959 until 1989, was entitled Personal representative; continuing action, and reads in relevant part as follows:

Provided, however, that when a person receives personal injuries caused by the wrongful act or omission of another and thereafter dies from causes other than said personal injuries so received, the personal representative of the person so injured may maintain an action against the wrongdoer to recover damages resulting from such injuries, if the person so injured might have maintained such action, had he or she lived; but provided further, that the personal representative of said injured person shall be permitted to recover only the reasonable medical, hospital and nursing expense and loss of income of said injured person, resulting from such injury, from the date of the injury to the date of his death.

In reading the plain language of this statute, it is obvious that a personal representative could not seek punitive damages in a personal-injury action on behalf of the decedent's estate, but could recover only the compensatory damages specifically enumerated therein.

By way of explanation, "[p]unitive damages may be awarded only if there is clear and convincing evidence that the defendant acted with malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake of fact or law, honest error or judgment, overzealousness, mere negligence, or other human failing." Bright v. Kuehl, 650 N.E.2d 311, 316 (Ind. Ct.App.1995). "The purpose of punitive damages is to punish the wrongdoer and thereby deter others from engaging in similar conduct." Id.

IND.CODE § 34-1-1-1 was amended in 1989, and the survival statute portion excerpted above was significantly modified and designated as subsection (d):

(d) If a person receives personal injuries caused by the wrongful act or omission of another and subsequently dies from causes other than those personal injuries, the personal representative of the decedent who was injured may retain an action against the wrongdoer to recover all damages resulting before the date of death from those injuries that the decedent would have been entitled to recover had the decedent lived. These damages inure to the exclusive benefit of the decedent's estate.

In 1998, IND.CODE § 34-1-1-1(d) was amended and recodified as IND.CODE § 34-9-3-4, which reads as follows:

34-9-3-4 Action by decedent's representative based on personal injuries causing death

Sec. 4. (a) This section applies when a person:

(1) receives personal injuries caused by the wrongful act or omission of another; and

(2) subsequently dies from causes other than those personal injuries.

(b) The personal representative of the decedent who was injured may maintain

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