Herriman v. Conrail, Inc.

Decision Date24 February 1995
Docket NumberNo. 1:94-CV-232.,1:94-CV-232.
Citation887 F. Supp. 1148
PartiesCharles E. HERRIMAN and Johnny Sue Herriman, Plaintiffs, v. CONRAIL, INC., and Consolidated Rail Corporation, Defendants.
CourtU.S. District Court — Northern District of Indiana

Gene M. Jones, Martin W. Kus, Newby Lewis Kaminski and Jones, LaPorte, IN, for plaintiffs.

Bruce A. Hugon, Victor L. Frost, II, Andrew W. Swain, Cindy E. Shively, Frost and Hugon, Indianapolis, IN, for defendants.

MEMORANDUM OF DECISION AND ORDER

COSBEY, United States Magistrate Judge.

I. INTRODUCTION

This case, involving the alleged wrongful death of Kurt A. Herriman ("Kurt") is before the Court1 on two motions for partial summary judgment: one filed by his parents, the Plaintiffs, Charles E. Herriman and Johnny Sue Herriman ("Plaintiffs"); and one by Defendants Conrail, Inc. and Consolidated Rail Corporation ("Defendants"). Both sides have filed response briefs and reply briefs, and the relevant undisputed facts, as recounted in section II of this order, can be succinctly stated.

This Court has jurisdiction by virtue of diversity of citizenship. 28 U.S.C. § 1332.

II. FACTUAL BACKGROUND, QUESTION PRESENTED, AND ARGUMENTS OF THE PARTIES

Kurt died unmarried and without dependents at the age of nineteen (19) as a result of a railroad grade crossing collision in August of 1992. See Plaintiffs' complaint rhetorical ¶¶ 20-21.

The Plaintiffs contend that it was the Defendants negligence that caused the death of their son, and that as further result, they have lost his love, companionship, and his services for the rest of their lives.2 See Plaintiffs' complaint rhetorical ¶ 22.

The focus of the current motion is not on the issue of whether the Plaintiffs have a right to claim such damages under Indiana's Child Wrongful Death Act ("the Act"), Indiana Code section 34-1-1-8, because since the Act was amended in 1987 to add subsections (e)(1) and (e)(2) they clearly do; rather, the respective motions focus upon subsections (f) and (g) (both also added in 1987) and the time period for which those damages may be recovered under the Act. At the time of Kurt's death, the Act read as follows:

(a) As used in this section, "child" means an unmarried individual without dependents who is:
(1) less than twenty (20) years of age; or
(2) less than twenty-three (23) years of age and is enrolled in an institution of higher education or in a vocational school or program.
(b) An action may be maintained under this section against the person whose wrongful act or omission caused the injury or death of a child. The action may be maintained by:
(1) the father or mother jointly, or either of them by naming the other parent as a codefendant to answer as to his or her interest;
(2) in case of divorce or dissolution of marriage, the person to whom custody of the child was awarded; and
(3) a guardian, for the injury or death of a protected person.
(c) In case of death of the person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the action for the injury or death of the child.
(d) In an action brought by a guardian for an injury to a protected person, the damages inure to the benefit of the protected person.
(e) In an action to recover for the death of a child, the plaintiff may recover damages:
(1) for the loss of the child's services;
(2) for the loss of the child's love and companionship; and
(3) to pay the expenses of
(A) health care and hospitalization necessitated by the wrongful act or omission that caused the child's death;
(B) the child's funeral and burial;
(C) the reasonable expense of psychiatric and psychological counseling incurred by a surviving parent or minor sibling of the child that is required because of the death of the child;
(D) uninsured debts of the child, including debts for which a parents is obligated on behalf of the child; and
(E) the administration of the child's estate, including reasonable attorney's fees.
(f) Damages may be awarded under this section only with respect to the period of time from the death of the child until:
(1) the date that the child would have reached:
(A) twenty (20) years of age; or (B) twenty-three (23) years of age, if the child was enrolled in an institution of higher education or in a vocational school or program; or
(2) the date of the child's last surviving parent's death; whichever first occurs.
(g) Damages may be awarded under subsection (e)(2) only with respect to the period of time from the death of the child's last surviving parent's death.
(h) Damages awarded under subsection (e)(1), (e)(2), (e)(3)(C), and (e)(3)(D) inure to the benefit of:
(1) the father and mother jointly if both parents had custody of the child;
(2) the custodial parent, or custodial grandparent, and the noncustodial parent of the deceased child as apportioned by the court according to their respective losses; or
(3) a custodial grandparent of the child if the child was not survived by a parent entitled to benefit under this section.
However, a parent or grandparent who abandoned a deceased child while the child was alive is not entitled to any recovery under this chapter.

Simply stated, the Defendants assert that damages for the loss of love and companionship of a child are only available under the Act until the child would have reached the age of twenty, or at the latest, twenty-three, Ind.Code section 34-1-1-8(f)(1)(A)(B); on the other hand, the Plaintiffs argue that subsection (g) of the Act declares that such damages are available until the death of the child's last surviving parent. Under the facts of this case, the difference between these two poles could be significant: a period of one to four years, matched up against the remaining life expectancy of Kurt's parents — a period of roughly twenty years. See Burns Indiana Statutes (TABLES) pp. 1408-9.

More particularly, but to oversimplify, the Defendant argues that subsections (f) and (g) of the Act, are inherently ambiguous and that to follow the Plaintiffs' reading would lead to absurd and unintended results, as well as being counter to the historical evolution of pecuniary damages for the loss of a child under Indiana law. The Defendants bolster this argument by referring to the current formulation of Indiana's Pattern Jury Instructions which purport to enunciate the allowable damages for the loss of a child. See INDIANA PATTERN JURY INSTRUCTIONS § 11.05; § 11.81.3 In other words, the Defendants view the last major amendment to the Act in 1987, discussed more fully infra, as merely codifying Indiana's long standing common law notion that any and all damages that are recoverable for the wrongful death of a child accrue only for what would have been the balance of the child's minority.

On the other hand, the Plaintiffs argue that the amended Act is not ambiguous at all, but rather was the Legislature's responsive effort in 1987 to broaden a rather pinched and antiquated notion, that damages for the lost love and companionship of a child were not recoverable — an archaic attitude that up to that point had been a part of Indiana's jurisprudence for well over a century. As the Plaintiffs see it, by reason of the Legislature's action, these damages are now allowed in addition to traditional pecuniary damages and the only temporal measuring stick is the life (or established life expectancies) of the affected parents.

In response, the Defendants argue that Indiana has long treated intangible damages, such as the loss of the love and companionship of a child, as part of pecuniary damages, and that as a result, these elements should be subject to the temporal limitations that have traditionally been imposed in this state for the recovery of pecuniary damages. Thus, historically viewed, the Defendants suggest that the parents recovery for such damages has been limited to the period ending on the date that the child would have reached his majority, or the date of the last surviving parent's death, whichever comes first. The Defendants also argue that while the Act has the facial appearance of inconsistency, it can be harmonized with its other provisions, particularly in regard to those damages which are recoverable for the injury to a child. Moreover, the Defendants argue that the Plaintiffs' interpretation of the statute fails to effectuate clear legislative intent, and would also violate the right to equal protection in that it treats custodial grandparents differently than parents for the loss of a child's love and companionship. Finally, the Defendants argue that legitimate policy considerations exist which justify limiting the recovery of the loss of love and companionship to only a child's minority.

In response, the Plaintiffs argue that simply because portions of the Act do not follow the historical context of awards for the pecuniary losses for the death of a child, that does not mean that the clear language of the statute should be judicially excised. Rather, the Plaintiffs argue that even if the statute is deemed ambiguous, traditional statutory interpretation illustrates that what the Legislature sought to accomplish in 1987 was to unchain this new damages remedy, arising from lost love and companionship, from the traditional parameters that governed pecuniary losses. After all, the Plaintiffs argue, subsection (g) of the Act is presumably there for some reason, and since it can be logically reconciled with the remaining portions of the Act, it should be given full effect.

III. SUMMARY JUDGMENT PRINCIPLES

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916...

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