Southlake Limousine and Coach, Inc. v. Brock

• Decision Date: 16 September 1991
• Docket Number: No. 45A03-9007-CV-259,45A03-9007-CV-259
• Citation: 578 N.E.2d 677
• Parties: SOUTHLAKE LIMOUSINE AND COACH, INC., Appellant-Defendant, v. John BROCK, Administrator of the Estate of Donna J. Brock, Deceased, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 677

578 N.E.2d 677

SOUTHLAKE LIMOUSINE AND COACH, INC., Appellant-Defendant, v. John BROCK, Administrator of the Estate of Donna J. Brock Deceased, Appellee-Plaintiff.

No. 45A03-9007-CV-259.

Court of Appeals of Indiana Third District.

Sept. 16, 1991.

Jim A. O'Neal, Michael A. Wilkins, Ice, Miller, Donadio & Ryan, Indianapolis, for appellant-defendant.

Barry D. Sherman, Joseph P. Allegretti, Sherman & Allegretti, Hammond, for appellee-plaintiff.

HOFFMAN, Judge.

Southlake Limousine and Coach, Inc., appeal the jury's award of $1,500,000.00 to John Brock, administrator of the estate of Donna J. Brock, deceased.

Three issues are presented for review:

(1) whether the trial court erred in allowing the plaintiff's expert to testify regarding the value of the decedent's life;

(2) whether the trial court erred in disallowing cross-examination of the plaintiff's expert on annuities; and

(3) whether Final Instruction No. 7 was erroneous.

Donna Brock was killed in an automobile accident by a limousine owned by Southlake on January 23, 1989. Since Southlake admitted liability, a trial was held on the issue of damages only.

There was evidence admitted of the decedent's life, including her health, salary, hobbies, and household services. Experts testified as to the value of lost earnings and household services incurred by the decedent's survivors as a result of her death. None of this testimony is contested.

However, plaintiff's expert economist, Stan Smith, further testified as to the value of the decedent's life. Professor Smith explained that it was possible to place a value on intangible damages, such as the loss of care, love and affection sustained by the surviving spouse and the loss of parental guidance and training sustained by the surviving children. To do so, Professor Smith determined the value of the decedent's life. In arriving at his conclusion that the decedent's life was worth $1.9 million, Professor Smith analyzed how much society is willing to pay to reduce the risk of people dying by accident. He looked to what society will pay for seatbelts, automobile airbags, smoke detectors, highway dividers, etc. Professor Smith analyzed what society will pay for people to take an extra risk in certain types of jobs, such as police, security personnel, employees in chemical industries, etc. His analysis was the measure of a person's "being," which did not include a measure of the person's "doing". It is a determination of the value of the life of an average person.

Professor Smith concluded that the value of an average life routinely ranges from $1.5 million to $8.5 million. He, then, subtracted out average lost earnings and household services, and determined that the value of an average life is $2.3 million. This averages out to approximately $60,000.00 on a per year life expectancy basis. Since the decedent was older than the average person, Professor Smith took that into account in arriving at the value of $1.9 million for the decedent.

Professor Smith testified that the value of a person could "provide a basis for measuring the loss of society and companionship to all of society for an average person." Plaintiff's counsel then asked Professor Smith:

"[Counsel]: So what is your projected loss--your opinion on the value of the loss of love and affection sustained by John and the kids and the guidance and training of the kids?

[Professor Smith]: Well, I started with 1.9 million dollars. The next step that must be taken that I, as an economist, don't know how to take, but the trier of the fact, the Jury needs."

Later, plaintiff's counsel asked:

"[Counsel]: Now, I want you to assume that the Brock family was a loving, close-knit family. What should the Jury do with that additional assumption?

[Professor Smith]: As an economist, I don't have any expert knowledge into how they should take that into account. That is a decision they can make. That's something for them to do reaching into their own experience and their own hearts based on their own judgments. Economics doesn't know how to take that into account."

Thus, Professor Smith valued the decedent's life, but was unable to value the loss of affection and love to the decedent's spouse and the loss of parental training and guidance to the decedent's children. This value of decedent's life was to be used as a "basis" for the jury to evaluate the loss of affection, love, parental training and guidance sustained by the survivors.

A wrongful death action is provided for by statute in this state, IND.CODE Sec. 34-1-1-2 (1988 Ed.). Since wrongful death actions are in derogation of common law, the statute creating this right of action must be strictly construed. Andis v. Hawkins (1986), Ind.App., 489 N.E.2d 78, 81. Thus, only those damages prescribed by statute may be recovered. Id. The purpose of the wrongful death statute is to benefit the survivors by providing compensation for the loss they have sustained. This statute was not created to compensate for the loss of life of the decedent.

Pecuniary loss is the foundation of the wrongful death action. Id. at 82. This loss can be determined, in part, from the assistance that the decedent would have provided through money, services or other material benefits. However, this loss also includes the loss to the children of parental training and guidance and the loss of love and affection to the surviving spouse. Judge Gillett in Consolidated Stone Co. v. Staggs (1905), 164 Ind. 331, 337, 73 N.E. 695, 697, discussed the measure of damages from wrongful death:

"Under a statute like ours, which gives a new right of action, distinct from that which the deceased might have maintained, the measure of damages is compensation for the pecuniary loss sustained by the party or parties entitled to the benefit of the action. 'The sole inquiry is how many dollars are necessary to compensate the beneficiaries for the pecuniary loss caused to them by the wrongful death?' ... The damages are not to be estimated at the value of the life lost, but at such a sum as will compensate the persons on whose behalf the action is brought for the pecuniary injury which they have sustained by the death. [Citations omitted.]"

See also Green v. Oakley (1969), 145 Ind.App. 307, 310, 250 N.E.2d 594, 596.

The parties to this action understood that, under Indiana's wrongful death statute, damages could not be assessed for the lost pleasures of life to the decedent. (These damages are also referred to as hedonic damages.) The defendant Southlake had presented two motions in limine prior to trial. The first motion asked the court to bar any testimony from plaintiff's expert, Professor Smith, on the issue of the value of the decedant's life. The second motion requested the court to bar any testimony from this expert placing a monetary value on the loss of love and affection for the surviving spouse and the loss of parental guidance and training for the surviving children. Southlake's counsel argued that these damages were intangible and not within the expertise of the economist witness. The trial court denied both motions. Plaintiff's counsel agreed not to seek damages for the value of decedent's life.

Prior to the testimony of Professor Smith, Southlake's counsel objected to Professor Smith's testimony. This objection is rather confused since he agreed that plaintiff's counsel could offer testimony on the value of life as long as the terms hedonic damages, pleasures of life, and enjoyment of life were not used. This is in contradiction to the motions in limine. However, before Professor Smith began his testimony on the valuation of the decedent's life, Southlake's counsel did object, as in the motions in limine, to any mention of the value of life. Therefore, this issue was preserved for appeal.

Whether an expert economist's testimony valuing a decedent's life is admissible as an aid to the jury in determining the loss of affection, love, parental training and guidance to the survivors, is a novel issue in Indiana and appears to be a new issue nationally. As mentioned above, all of the testimony, regarding decedent's life expectancy, personal characteristics, future lost earnings and future lost household services, is not disputed. It is the expert economist Professor Smith's testimony valuing the decedent's life, based on the "willingness to pay" theory, that is contested. Southlake contends that this testimony was not an aid to the jury in valuing the loss of affection and love to the husband and the loss of parental training and guidance to the children and therefore, should not have been admitted. This Court agrees.

A similar issue was recently discussed in Sterner v. Wesley College (D.Del.1990), 747 F.Supp. 263. Sterner was a wrongful death case in which the plaintiffs offered the testimony of an economist to aid in valuing the intangible loss to the survivors. Coincidentally, the expert economist was Professor Smith. The plaintiffs argued that the hedonic value of the decedent's life could be considered as part of the damages recoverable for the mental anguish suffered by his survivors upon his death. The trial court refused to admit this testimony. The district court, in affirming this decision, stated:

"We find that the relevancy of evidence of the hedonic value of Christopher Sterner's life in regard to the mental anguish suffered by Carolyn and Michael Sterner is so attenuated as to be impermissibly speculative. Cf. Fed.R.Evid. 702 (limiting expert testimony to circumstances in which it 'will assist the trier of fact'). Such evidence would be overly speculative as a matter of relevancy and causation, and not just as a matter of uncertain measurement.

The issue in evaluating the mental anguish suffered by the survivors is not what loss of the pleasure of life the decedent might have suffered, but is rather the survivors' 'intense experience we commonly refer to as the grieving process following the loss of a loved...