Necessary v. Inter-State Towing

• Decision Date: 30 June 1998
• Docket Number: No. 49A02-9703-CV-188,INTER-STATE,49A02-9703-CV-188
• Citation: 697 N.E.2d 73
• Parties: Scott E. NECESSARY, Administrator of the Estate of Juanita Necessary, Deceased, Appellant-Plaintiff, v.TOWING, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 73

697 N.E.2d 73

Scott E. NECESSARY, Administrator of the Estate of Juanita Necessary, Deceased, Appellant-Plaintiff, v. INTER-STATE TOWING, Appellee-Defendant.

No. 49A02-9703-CV-188.

Court of Appeals of Indiana.

June 30, 1998.

Rehearing Denied Aug. 7, 1998.

D. Bruce Kehoe, Ralph E. Dowling, Wilson Kehoe & Winingham, Indianapolis, for Appellant-Plaintiff.

Kevin C. Schiferl, Robert W. Wright, Dean R. Brackenridge, Locke Reynolds Boyd & Weisell, Indianapolis, for Appellee-Defendant.

OPINION

KIRSCH, Judge.

Scott A. Necessary, as Administrator of the Estate of Juanita Necessary, appeals the entry of partial summary judgment in the wrongful death action against Inter-State Towing, Inc., contending that the trial court erred in finding that Scott in his individual capacity and Joseph T. Necessary were not dependents under the Indiana wrongful death statute. ¹

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On October 2, 1995, Juanita Necessary was killed in an automobile accident with an Inter-State tow truck. Scott, as Administrator of the Estate, brought a wrongful death action against Inter-State, contending that Scott as Juanita's adult son, was a dependent child and Joseph as Juanita's adult grandson, was a dependent next of kin at the time of Juanita's death.

At the time of her death, Juanita, Scott, and Joseph had resided together for several years. They shared the household expenses. Juanita made the mortgage payment prior to 1991, and shared this responsibility from 1991 to December 1993, when Scott took over the mortgage payments; Scott also purchased and maintained a car for Juanita to drive; Joseph paid rent of $200.00 per month to Scott. Juanita made monthly payments toward food ($250.00) and utilities ($311.00), averaging $561.00 per month. Joseph and/or Scott paid $20.00 per week during 1995 for lawn care. The Estate also asserts that in addition to her financial contributions to the household, Juanita provided Scott and Joseph with love, affection, guidance, and services, such as cooking, cleaning, and tailoring.

Scott had a total income of $39,821.00 in 1994 and $41,506.00 in 1995. Joseph earned a total income of $23,140.77 in 1994 and $22,778.38 in 1995. Juanita's total income was $20,858.88 in 1994 and $17,573.00 in 1995. During the six years prior to Juanita's death, she did not declare Joseph or Scott as dependents on her income tax returns. Scott inherited a portion of Juanita's estate under her will; Joseph did not.

The trial court granted Inter-State's Motion for Partial Summary Judgment, and held that because Juanita had no dependents the recoverable damages by the Estate under the wrongful death statute were "limited to recovery of reasonable medical, hospital, funeral and burial expenses, and the reasonable costs of administration, which would inure to the exclusive benefit of the decedent's estate for payment thereof[.]" Record at 162. The Estate challenges the trial court's grant of partial summary judgment limiting recovery of damages and precluding the Estate from seeking dependency damages.

DISCUSSION AND DECISION

When reviewing a decision on a summary judgment motion, this court applies the same standard as does the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct.App.1994), trans. denied (1995). Summary judgment is appropriate if the "designated evidentiary material shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind.Trial Rule 56(C). Because wrongful death actions are purely creatures of statute and in derogation of the common law, they are strictly construed. Southlake Limousine & Coach, Inc. v. Brock, 578 N.E.2d 677, 679 (Ind.Ct.App.1991), trans. denied (1992). Therefore, only those damages prescribed by the statute may be recovered. Id. 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. Id. Pecuniary loss can be determined, in part, from the assistance that the decedent would have provided through money, services, or other material benefits. Id.

I.

Wrongful Death Statute

The Indiana wrongful death statute provides, in part:

"When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action against the latter ... and the damages shall be such an amount as may be determined by the court or jury, including but not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission. That part of the damages which is recoverable for reasonable medical, hospital, funeral and burial expenses shall inure to the exclusive benefit of the decedent's estate for the payment thereof. The remainder of the damages, if any shall, subject to the provisions of this article, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased."

IC 34-1-1-2. The Indiana wrongful death statute provides for recovery by three different classes: (1) spouse or dependent children; (2) dependent next of kin; and (3) service providers, and further provides that damages shall be in such an amount as may be determined by the court, including, but not limited to, reasonable medical, hospital, funeral, and burial expenses, lost earnings, and the costs of bringing the wrongful death action, including attorney fees. IC 34-1-1-2. Only the first and second classes may recover damages resulting from lost earnings and from the non-pecuniary loss of love, care, and affection. Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911-13 (Ind.Ct.App.1994), adopted on trans., 678 N.E.2d 110 (Ind.1997); Thomas v. Eads, 400 N.E.2d 778, 782 (Ind.Ct.App.1980).

If either Scott or Joseph is found to be a dependent under the wrongful death statute, he could recover pecuniary losses related to Juanita's death. In addition, he could recover damages for loss of love, care, and affection. Wiersma, 643 N.E.2d at 913. To prove dependency, it must be shown that "a need or necessity of support [existed] on the part of the person alleged to be dependent ... coupled with the contribution to such support by the deceased." New York Central R.R. Co. v. Johnson, 234 Ind. 457, 464, 127 N.E.2d 603, 607 (1955); see also Wolf v. Boren, 685 N.E.2d 86, 88 (Ind.Ct.App.1997), trans. denied (1998).

II. Defining Dependency Under Wrongful Death Statute

The Estate argues that partial dependency is an adequate basis for recovery under the wrongful death statute and asserts that because Juanita, Scott, and Joseph pooled their income and shared household expenses, a mutual dependency was created. The Estate asserts that Scott and Joseph may be partially dependent even though they could survive without Juanita's financial contributions and services.

In New York Central, 234 Ind. at 466, 127 N.E.2d at 607, our supreme court noted that dependency is not measured by monetary contributions alone, "but may include keeping the family and home in a condition and with surroundings suitable to their station in life." Dependency can also be established through love, affection, and services, rather than just financial contribution. Heinhold v. Bishop Motor Express, Inc., 660 F.Supp. 382, 385 (N.D.Ind.1987); Wiersma, 643 N.E.2d at 913. Partial dependency is sufficient to establish the "necessitous want." See New York Central, 234 Ind. at 464-65, 127 N.E.2d at 607; see also Lustick v. Hall, 403 N.E.2d 1128 (Ind.Ct.App.1980); see also Pucalik v. Holiday Inns, Inc., 777 F.2d 359, 364 (7th Cir.1985).

In New York Central, a mother sought to recover pecuniary damages for the loss of her adult daughter who lived with her for twenty-seven out of the twenty-nine years of her life, although she was not living with the mother at the time of her death. 234 Ind. at 460, 127 N.E.2d at 605. The decedent, on either a weekly or bi-monthly basis, gave her mother different amounts of money, depending upon the decedent's income, to pay for groceries, fuel, clothes, insurance, utilities, medical bills, and to make part of a down payment on a home because the decedent's stepfather was not making enough to support himself and her mother. Id. at 460-61, 127 N.E.2d at 605. The supreme court held that the wrongful death statute does not require that the next of kin be totally dependent, and that the decedent need not have been under a legal obligation to support the next of kin. Id. at 464-65, 127 N.E.2d at 606-07; see also Pucalik, 777 F.2d at 364. The supreme court further held that the mother had sustained a pecuniary loss and that the evidence of damages was of sufficient weight to justify the jury's finding that the decedent was under a legal civil duty to contribute to the support of her mother. New York Central, 234 Ind. at 465-66, 127 N.E.2d at 607.

In Cunningham v. Werntz, 303 F.2d 612, 613-14 (7th Cir.1962), the defendant appealed from a judgment allowing the decedent's parents to recover for the death of an adult child. The court, applying Indiana law, held that there was sufficient evidence to find dependency where the decedent made financial contributions, in response to the needs of the parents, for several years totaling $150 to $600 annually. Id. at 614. These contributions were used by the parents to pay for household expenses and medical bills. Id.

In Lustick, a wrongful death action was brought seeking to recover pecuniary damages for the wrongful death of a mother of two minor adopted children who were in the care and custody of the father pursuant to a divorce decree. Notwithstanding the entry of the divorce decree, the decedent had moved back into the family home to care for her children and keep up the home. These...