                                                                    FILED
                                                                Feb 21 2019, 2:44 pm

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court


                             IN THE

     Indiana Supreme Court
                Supreme Court Case No. 19S-CT-97

James T. Horejs, James Harris, and Robert Horejs, as Co-
Administrators of the Estate of Laura A. Shaner, Deceased
                     Appellants (Plaintiffs below),

                                 –v–

 Albert Milford, D.O., St. Margaret Mercy Healthcare
      Centers, Inc., and TRC-Indiana LLC d/b/a
Comprehensive Renal Care-Munster d/b/a DaVita, Inc.
                     Appellees (Defendants below).


        Argued: October 25, 2018 | Decided: February 21, 2019

                 Appeal from the Lake Superior Court
                        No. 45D11-0711-CT-195
           The Honorable Diane Kavadias Schneider, Judge

       On Petition to Transfer from the Indiana Court of Appeals
                       No. 45A03-1709-CT-2173



                      Opinion by Justice David
   Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.
David, Justice.

   On occasion, a case arises that demonstrates the enduring importance
of drafting a will. This is one such case. The present dispute arises out of
a wrongful death suit initiated by David Shaner after his wife Laura’s
death due to complications with the administration of dialysis treatments.
David sought two categories of damages contemplated by Indiana’s
wrongful death statute: damages related to medical, hospital, funeral, and
burial expenses and additional damages including loss of consortium, lost
earnings and wages, and loss of additional employment benefits. During
litigation, David died intestate, leaving no immediately ascertainable
heirs. Defendants, Dr. Albert Milford, St. Margaret Mercy Healthcare
Centers, Inc., and TRC-Indiana, LLC, moved for partial summary
judgment on David’s claim for damages related to loss of consortium,
arguing any damages in excess of medical, hospital, funeral, and burial
expenses would be punitive in nature because David left no heirs. The
trial court granted the Defendant’s motion and the Court of Appeals
affirmed.

   We grant transfer today to reverse the trial court’s grant of partial
summary judgment and hold that the wrongful death and survival
statutes enable David’s claim to survive regardless of the existence of an
heir. Because we are not convinced the proper party is maintaining
David’s claim, however, we also instruct the trial court to determine
whether there is a proper party to continue the action as contemplated by
the relevant statutes.


Facts and Procedural History
   In late 2005, Laura Shaner underwent surgery performed by Defendant
Albert Milford, D.O. (“Milford”) at St. Margaret Mercy Healthcare Center
(“St. Margaret”) in Dyer, Indiana, for the repair of an abdominal hernia.
Unfortunately, complications arose after the surgery, which necessitated
Laura’s dialysis treatments at TRC–Indiana, LLC d/b/a Comprehensive


Indiana Supreme Court | Case No. 19S-CT-97 | February 21, 2019     Page 2 of 11
Renal Care–Munster d/b/a DaVita, Inc. (“TRC”). Laura died on January 4,
2006, after problems from administration of the dialysis and was survived
by her husband David Shaner.

   David, individually and as Administrator of the Estate of Laura A.
Shaner, brought suit against Milford, St. Margaret, and TRC, asserting
Defendants were liable in negligence for Laura’s death. David sought two
categories of damages resulting from the wrongful death of Laura: “final–
expense damages” including medical, hospital, funeral, and burial
expenses, and “survivor damages” for the loss of consortium, including
the loss of Laura’s earnings and wages, and her services, love, affection,
companionship, society, support, and protection. 1 While these claims
were pending, David died intestate on October 30, 2015, leaving no
known surviving heirs. David’s estate escheated to the State of Indiana.

   In 2016, Laura’s father, James T. Horejs, was appointed successor
administrator of Laura’s Estate, and Laura’s brothers, Robert Horejs and
James Harris, were appointed as co-administrators (collectively “Horejs”).
These co-administrators continued to claim both final–expense and
survivor damages flowing from the wrongful death claim. TRC, joined by
St. Margaret and Milford, moved for partial summary judgment on the
survivor damages claim, arguing that, because of David’s death, there was
no evidence to support a claim for loss of consortium damages. Because
David left no will, had no dependents or next of kin, and there was no
evidence available to calculate damages for a loss of consortium claim, the
trial court granted Defendants’ motion for partial summary judgment.
The trial court also concluded that the co-administrators lacked standing
to continue this claim on behalf of the Estate of David Shaner.

  The Court of Appeals affirmed, finding that because David had no
heirs, any survivor damages would pass to the state—a result contrary to




1 The Court of Appeals intuitively referred to these two distinct categories of damages as
“final-expense damages” and “survivor damages.” See Horejs v. Milford, 104 N.E.3d 622, 623
(Ind. Ct. App. 2018). For the purposes of this opinion, we will continue to use these terms to
describe the damages at issue in this case.



Indiana Supreme Court | Case No. 19S-CT-97 | February 21, 2019                      Page 3 of 11
the compensatory purpose of the wrongful-death statute. Horejs v.
Milford, 104 N.E.3d 622, 625 (Ind. Ct. App. 2018). The court’s opinion
closely examined this Court’s decision in Bemenderfer v. Williams, 745
N.E.2d 212 (Ind. 2001), and found the holding in Bemenderfer “turned on
the fact that an heir of the deceased statutory beneficiary would receive a
smaller inheritance absent an award of survivor damages.” Horejs, 104
N.E.3d at 624-25. The Court of Appeals found that allowing a claim for
survivor damages in the instant case would only serve to punish the
Defendants because the damages would simply pass to the State. Id. at 25.

   Horejs sought transfer, which we now grant, thereby vacating the
Court of Appeals’ opinion. Ind. App. Rule 58(A).


Standard of Review
   We review a grant of partial summary judgment the same as in the trial
court. Ballard v. Lewis, 8 N.E.3d 190, 193 (Ind. 2014). “[S]ummary
judgment is appropriate only where the evidence shows that there is no
genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law.” Id. (citations omitted). Where a challenge
to the trial court’s summary judgment ruling presents only legal issues or
a question of statutory interpretation, it is reviewed de novo. Id.


Discussion and Decision
   The parties in this case ask us to affirm our Court’s prior decision in
Bemenderfer v. Williams, 745 N.E.2d 212 (Ind. 2001), albeit for different
reasons. Horejs argues Bemenderfer should be read to authorize a claim for
survivor damages that extends beyond the death of a party regardless of
the existence of an heir. Meanwhile, Defendants argue Bemenderfer turned
specifically on the existence of an heir and that policy considerations
discussed in Bemenderfer cut in their collective favor to foreclose a claim
for survivor damages. Although we find that neither the relevant statutes
nor Bemenderfer require an heir for this type of claim to survive the death
of a party, we are not convinced the proper party is before the Court to



Indiana Supreme Court | Case No. 19S-CT-97 | February 21, 2019    Page 4 of 11
continue David’s claim for survivor damages. Each of these issues will be
discussed in turn.


I. The relevant statutes do not preclude an action for
   survivor damages and Bemenderfer does not change
   that result.
  Two statutes inform the basis of our holding today: the “death from a
wrongful act or omission” statute codified at Indiana Code section 34-23-
1-1, and the “continuing action after death of party” statute found in
Indiana Code section 34-9-3-1. The current versions of each statute were
re–codified in the same piece of legislation, see 1998 Ind. Acts 39-40, 141-
42, and neither statute has been amended since the recodification or our
decision in Bemenderfer. As we have previously observed, “[t]he survival
statute and the wrongful death statute must be construed together.”
Bemenderfer, 745 N.E.2d at 218.

  Indiana’s wrongful–death statute, convoluted as it may be, lays out the
general cause of action for when a wrongful act or omission causes the
death of another. This provision allows the personal representative of the
decedent to maintain an action against the alleged wrongdoer that caused
the death “if the [decedent] might have maintained an action had he or
she…lived.” Ind. Code § 34-23-1-1. This cause of action contemplates the
possibility of damages, which is described as follows:

      [D]amages shall be in 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 recovered
      for reasonable medical, hospital, funeral and burial expense
      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,



Indiana Supreme Court | Case No. 19S-CT-97 | February 21, 2019      Page 5 of 11
      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.


Id. Simply put, any final–expense damages inure to the decedent’s estate
for payment of reasonable medical, hospital, funeral and burial expenses,
and any excess damages, including survivor damages, inure to the
exclusive benefit of the widow or widower and any dependents.

   As applied to the present case, David Shaner brought an action under
the wrongful–death statute against Milford, St. Margaret, and TRC for
both final–expense and survivor damages. Had this action been frozen in
time, both parties seem to agree that under the wrongful–death statute,
David was entitled to pursue both final–expense and survivor damages as
the administrator for Laura’s estate and in his individual capacity as
Laura’s widower. David’s death before judgment, however, does not
necessarily mean these claims abate. Rather, courts must look to Indiana’s
survival statute to determine whether a particular type of action may
continue.

   Indiana’s survival statute provides, “If an individual who is entitled or
liable in a cause of action dies, the cause of action survives and may be
brought by or against the representative of the deceased party…” Ind.
Code § 34-9-3-1(a). The statute also instructs:


      An action under this chapter may be brought, or the court, on
      motion, may allow the action to be continued by or against the
      legal representatives or successors in interest of the deceased.
      The action is considered a continued action and accrues to the
      representatives or successors at the time the action would have
      accrued to the deceased if the deceased had survived.


Ind. Code § 34-9-3-1(b). As this Court has previously held, “the plain
language of the survival statute tells us that a cause of action, once
accrued, does not abate.” Bemenderfer, 745 N.E.2d at 218.




Indiana Supreme Court | Case No. 19S-CT-97 | February 21, 2019      Page 6 of 11
   Defendants in this case argue that the wrongful–death statute must be
harmonized with the survival statute to require that an heir take up the
claim on behalf of the decedent’s estate. Reading these statutes together,
however, we see no indication in the text of either statute that David’s
claim for survivor damages terminated upon his death simply because he
had no heirs. A plain reading of the text confirms that the claim for
survivor damages, once properly asserted, does not abate due to the death
of the once-surviving spouse.

   This Court’s prior decision in Bemenderfer does nothing to change this
result. Rather, the holding in that case reinforces this interpretation. The
facts presented in that case are nearly identical to the facts of the present
action. The wife in Bemenderfer died as a result of complications from a
laparoscopic examination and her husband and daughter sought both
final–expense and survivor damages under the wrongful death statute. Id.
at 214-15. During the pendency of that lawsuit, the husband died, leaving
the couple’s daughter as the personal representative of both estates. Id. at
215. The doctor–defendant moved for partial summary judgment,
arguing that any damages beyond final–expense damages were foreclosed
by the husband’s death. Id. The trial court ultimately denied the
defendant’s motion and the Court of Appeals affirmed. Id.

   In examining the same statutes at issue in today’s decision, our Court
specifically found that, “[t]here is no suggestion in this version of the
[wrongful death] statute that the cause of action expires if the surviving
spouse or beneficiary dies before the wrongful death action is prosecuted
to its conclusion.” Id. at 217. Furthermore, we observed that the statute
“expressly suggests that survival of the statutory beneficiary to the
wrongful death victim’s death, and not until judgment, is a prerequisite to
recovering damages under the statute.” Id. Simply put, our Court held
that there was nothing in the survival statute that required this type of
cause of action to abate upon the death of one of the parties. Id. at 218.

   The Bemenderfer opinion also examined several policy arguments
advanced by each party. Namely, the defendant argued that the purpose
of the wrongful death statute was compensatory rather than punitive. Id.
As such, there should have been no award of survivor damages because



Indiana Supreme Court | Case No. 19S-CT-97 | February 21, 2019       Page 7 of 11
the damages would inure to someone not contemplated by the statute. Id.
Conversely, the plaintiffs argued that cutting off an otherwise valid award
of damages only served to benefit the tortfeasor and incentivized
defending parties to draw out litigation in the hopes that a contemplated
beneficiary would die before judgment. Id. Ultimately, our Court found
the policy concerns favored the plaintiffs because the husband lost his
lifelong companion, was forced into a nursing home, suffered from the
profound financial impact of the circumstances, and that the loss was
ultimately borne by his heirs. Id.

   The parties before us today make similar policy arguments and we see
no reason to upend the basic reasoning set forth in Bemenderfer. While it is
true there was an immediately identifiable heir in Bemenderfer, there is no
language in that opinion that would suggest our Court read a requirement
of a surviving heir into the otherwise facially clear wrongful death and
survival statutes. Defendants, believing otherwise, point us to the
following statement in the Bemenderfer opinion: “Because we conclude that
[husband’s] damages did not abate upon his death, and because, as an heir,
[daughter] stands to recover those damages…” Id. at 219 (emphasis added).
Defendants interpret this language to mean that the entire opinion turned
on the existence of an heir. But Defendants fail to quote the second part of
that sentence, which reads, “…we do not address the Court of Appeals’
conclusion that Dillier establishes that [daughter] may bring a separate
action to recover her pecuniary losses.” Id. Read as a whole, this sentence
is inconsequential to the overall holding and purpose of Bemenderfer,
which was to affirm the finding that, despite the husband’s death prior to
final judgment, his claim for survivor damages did not abate. The
sentence simply explained why the Court’s opinion did not address a
particular portion of the Court of Appeals analysis.

  We decline to carve out an exception to the central holding of
Bemenderfer in today’s opinion. After all, a wrongful death action is
“entirely a creature of statute.” Durham ex rel. Estate of Wade v. U-Haul, 745
N.E.2d 755, 758 (Ind. 2001). Because the plain language of the wrongful
death and survival statutes require that a properly–accrued claim does not
abate, we hold that David’s claim for survivor damages could have



Indiana Supreme Court | Case No. 19S-CT-97 | February 21, 2019      Page 8 of 11
survived regardless of the existence of an heir. Therefore, summary
judgment on this basis was inappropriate.


II. The proper party to this claim remains unclear.
   Although we hold today that an heir was not required under the
wrongful death and survival statutes for David’s claim to continue, we are
not convinced that the Estate of Laura Shaner is the proper party to assert
this claim. Defendants have hinted as much, arguing that the co–
administrators of Laura’s estate should not be the party pursuing this
claim. Rather, as Defendants suggest, David’s estate should have taken
up this claim when it had the opportunity.2

  As noted above, the wrongful death statute allows a claim for damages
beyond final–expense damages to “inure to the exclusive benefit of the
widow or widower…to be distributed in the same manner as the personal
property of the deceased.” Ind. Code § 34-23-1-1. As it relates to this
provision, the survival statute allows an action to be continued “by or
against the legal representatives or successors in interest of the deceased.”
Ind. Code § 34-9-3-1(a). Applied to David’s claim, survivor damages were
to inure to his exclusive benefit. The survival statute allows David’s legal
representative or successor in interest to continue this action beyond
David’s death. This claim “is considered a continued action and accrues to
the representatives or successors at the time the action would have
accrued to the deceased if the deceased had survived.” Ind. Code § 34-9-
3-1(b). As such, the party seeking any survivor damages to which David
was entitled must be either a legal representative or successor in interest
to David.

    We note that the key difference between Bemenderfer and today’s
decision is that the daughter in Bemenderfer was appointed as a personal
representative of the husband’s estate and the wife’s estate. 745 N.E.2d at




2The trial court’s findings of fact indicate that David Shaner’s estate escheated to the state
after his death in late 2015.



Indiana Supreme Court | Case No. 19S-CT-97 | February 21, 2019                         Page 9 of 11
215. This position allowed her to continue the husband’s claim for
survivor damages on behalf of the husband’s estate after his death. Here,
only Laura’s estate is before our Court. We recognize that the trial court
concluded the “[s]uccessor Co-administrators of the Estate of Laura A.
Shaner do not have the standing to continue a claim on behalf of the Estate
of David Shaner,” Appellant’s App. Vol. 2 at 22, and take this conclusion
at face value. But given that David’s claim for survivor damages could
have survived David’s death regardless of the existence of an heir, we
instruct the trial court on remand to consider whether a proper party
exists to continue this claim such that David’s estate would be eligible to
be reopened. See Ind. Code § 29-1-17-14.


Conclusion
   We hold that David’s claim for survivor damages did not abate upon
his death and was not dependent on the existence of an heir. Therefore,
summary judgment on this claim was inappropriate. We reverse the trial
court’s grant of partial summary judgment and remand this matter for
additional proceedings.


Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.




Indiana Supreme Court | Case No. 19S-CT-97 | February 21, 2019   Page 10 of 11
ATTORNEYS FOR APPELLANTS
Timothy S. Schafer
Timothy S. Schafer, II
Todd S. Schafer
Schafer & Schafer
Merrillville, Indiana

ATTORNEYS FOR APPELLEE ALBERT MILFORD, D.O.
Jason A. Scheele
Edward L. Murphy
Rothberg Logan & Warsco LLP
Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE ST. MARGARET MERCY
HEALTHCARE CENTERS, INC.
Libby Yin Goodknight
Krieg DeVault LLP
Indianapolis, Indiana

Shannon L. Noder
Julie Ann Rosenwinkel
Krieg DeVault LLP
Merrillville, Indiana

ATTORNEYS FOR APPELLEE TRC-INDIANA LLC
Leslie B. Pollie
Travis W. Montgomery
Kopka Pinkus Dolin PC
Carmel, Indiana




Indiana Supreme Court | Case No. 19S-CT-97 | February 21, 2019   Page 11 of 11
