                                                                           FILED
                                                                     Jun 14 2018, 5:41 am

                                                                           CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE:
                                                           ST. MARGARET MERCY
Timothy S. Schafer
                                                           HEALTHCARE CENTERS, INC.
Timothy S. Schafer, II
Todd S. Schafer                                            Libby Yin Goodknight
                                                           Krieg DeVault LLP
Schafer & Schafer
                                                           Indianapolis, Indiana
Merrillville, Indiana
                                                           Julie A. Rosenwinkel
                                                           Shannon L. Noder
                                                           Krieg DeVault LLP
                                                           Merrillville, Indiana

                                                           ATTORNEY FOR APPELLEE:
                                                           ALBERT MILFORD, D.O.
                                                           Jason A. Scheele
                                                           Rothberg Logan & Warsco LLP
                                                           Fort Wayne, Indiana

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



                                            IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 45A03-1709-CT-2173 | June 14, 2018                      Page 1 of 8
      James T. Horejs, James Harris,                             June 14, 2018
      and Robert Horejs, as Co-                                  Court of Appeals Case No.
      Administrators of the Estate of                            45A03-1709-CT-2173
      Laura A. Shaner, Deceased,                                 Appeal from the Lake Superior
      Appellants-Plaintiffs,                                     Court
                                                                 The Honorable Diane Kavadias
              v.                                                 Schneider, Judge
                                                                 Trial Court Cause No.
      Albert Milford, D.O., St.                                  45D11-0711-CT-195
      Margaret Mercy Healthcare
      Centers, Inc., and TRC-Indiana,
      LLC d/b/a Comprehensive
      Renal Care-Munster d/b/a
      DaVita, Inc.,
      Appellees-Defendants



      Vaidik, Chief Judge.


[1]   Indiana’s general wrongful-death statute, Indiana Code section 34-23-1-1,

      establishes two categories of damages—what we will call “final-expense

      damages” and “survivor damages.” The statute provides that if the decedent is

      not survived by a spouse, dependent children, or dependent next of kin, the

      decedent’s personal representative can recover, on behalf of the decedent’s

      estate, only final-expense damages: medical expenses related to the decedent’s

      last illness or injury; funeral and burial expenses; and expenses of administering

      the estate and pursuing the wrongful-death action, including a reasonable

      attorney’s fee. If the decedent is survived by a spouse, dependent children, or

      dependent next of kin, the decedent’s personal representative can recover both

      the final-expense damages on behalf the decedent’s estate and survivor
      Court of Appeals of Indiana | Opinion 45A03-1709-CT-2173 | June 14, 2018               Page 2 of 8
      damages, including lost earnings of the decedent, on behalf of the statutory

      beneficiary/ies.


[2]   This appeal presents the issue of what happens when one of the statutory

      beneficiaries enumerated in the statute (in this case, a spouse) survives the

      wrongful-death decedent but then dies himself while the wrongful-death action

      is still pending—that is, what happens when the survivor who would have

      collected the survivor damages has ceased being a “survivor”? Our Supreme

      Court addressed this question in Bemenderfer v. Williams, 745 N.E.2d 212 (Ind.

      2001), where a man named Hoy Sturgeon survived his wife Dorothy and filed a

      wrongful-death action but then died himself before the action had concluded.

      The question was whether Hoy’s claim for survivor damages could be carried

      on by the elderly couple’s daughter, who, as Hoy’s heir, stood to ultimately

      recover the damages. The Court held that she could.


[3]   Here, as in Bemenderfer, a husband filed a wrongful-death action after the death

      of his wife but then died himself while the action was still pending. However,

      there is one key difference—the husband died without any heirs, so that any

      survivor damages recovered on his behalf would ultimately pass (“escheat”) to

      the state. We must decide whether the deceased husband’s/beneficiary’s claim

      for survivor damages can be carried on under these circumstances. We hold

      that it cannot.


[4]   The alleged wrongful-death decedent in this case is Laura Shaner, who died in

      January 2006. In November 2007, Laura’s husband David, individually and on


      Court of Appeals of Indiana | Opinion 45A03-1709-CT-2173 | June 14, 2018   Page 3 of 8
      behalf of Laura’s estate (“Laura’s Estate” or “the Estate”), sued Dr. Albert

      Milford, St. Margaret Mercy Healthcare Centers, Inc., and TRC-Indiana, LLC

      d/b/a Comprehensive Renal Care-Munster d/b/a DaVita (“the Providers”).

      David alleged that the Providers had been negligent in their care of Laura and

      caused her death. His complaint included a claim for the following survivor

      damages under the wrongful-death statute:


              loss of [Laura’s] earnings and wages, loss of additional
              employment benefits which he enjoyed as a result of said
              [Laura’s] employment, loss of the reasonable value of [Laura’s]
              services, and further, the loss of love, affection, companionship,
              society and support as well as protection provided by [Laura] to
              [David].


      Appellants’ App. Vol. II p. 53.


[5]   While the case was still pending, David himself died, leaving no will and no

      heirs (David and Laura didn’t have any children, and David’s mother, who

      would have been his only heir, died at the same time as he did). Laura’s Estate

      continued prosecuting the lawsuit relating to Laura’s death, but David’s death

      prompted the Providers to file a motion for partial summary judgment. They

      asserted that because David died without heirs, any survivor damages he would

      have received in relation to Laura’s death (had he lived) would now instead

      pass to the state under Indiana Code section 29-1-2-1(d)(8), “would not

      compensate any party who suffered a pecuniary loss due to the death of Laura

      Shaner as contemplated under the Wrongful Death Statute,” and “would only

      serve as punishment to Defendants.” Id. at 32-45. The Providers argued that

      Court of Appeals of Indiana | Opinion 45A03-1709-CT-2173 | June 14, 2018     Page 4 of 8
      Laura’s Estate should not be able to recover such damages and should be

      limited to the final-expense damages outlined in the wrongful-death statute.

      The trial court granted the Providers’ motion, and Laura’s Estate appeals. We

      review motions for summary judgment de novo. Hughley v. State, 15 N.E.3d

      1000, 1003 (Ind. 2014).


[6]   Laura’s Estate contends that it should be able to pursue David’s survivor

      damages under our Supreme Court’s decision in Bemenderfer. The Estate

      correctly notes that the Bemenderfer Court’s stated holding was that “the

      wrongful death statute does not operate to preclude the statutory beneficiary

      who dies before judgment from recovering wrongful death damages.” 745

      N.E.2d at 215. The Estate argues that because this passage says nothing about

      the statutory beneficiary leaving an heir who would ultimately collect the

      beneficiary’s survivor damages, it can continue David’s claim for such damages

      even though he had no heirs and those damages would eventually pass to the

      state. We disagree.1


[7]   As we noted at the outset, the statutory beneficiary who died in Bemenderfer,

      Hoy Sturgeon, did have an heir, and that fact was central to the Supreme

      Court’s decision. In holding that Hoy’s daughter, as his heir, could continue




      1
        Laura’s Estate also asserts that David did, in fact, have an heir: a Pennsylvania woman named Aileen
      Waltman. However, the first mention of Ms. Waltman was in an affidavit attached to a motion to reconsider
      filed by Laura’s Estate a month after the trial court’s summary-judgment order. The trial court rejected that
      affidavit as untimely, and Laura’s Estate doesn’t challenge that ruling on appeal, so we must proceed as
      though David died without heirs.

      Court of Appeals of Indiana | Opinion 45A03-1709-CT-2173 | June 14, 2018                          Page 5 of 8
      Hoy’s quest for survivor damages arising from the death of his wife Dorothy,

      the Court explained:


              Hoy was eighty-two and suffering from Alzheimer’s and
              Parkinson’s when his wife died. He lost his life-long companion
              and caregiver. When Dorothy died, Hoy was placed in a nursing
              home and soon deteriorated to the point that he could not
              comprehend his wife’s death and lost all will to live. This human
              tragedy was compounded by its financial effect. Hoy’s estate
              was depleted by the additional expenses, and this loss was
              ultimately visited on his heirs. The wrongful death defendant
              should not benefit from the early death of a beneficiary, and
              certainly not from a death that was likely accelerated by a
              defendant’s own wrongdoing. At least under these
              circumstances, the very purpose of the law invoked by
              Bemenderfer—compensation of pecuniary loss—is furthered by
              allowing recovery.


      Bemenderfer, 745 N.E.2d at 218 (emphasis added). The emphasized language

      (which Laura’s Estate was careful to exclude from its brief) shows that the

      Court’s holding turned on Hoy having an heir who would suffer a pecuniary

      loss if she couldn’t recover the survivor damages Hoy himself would have

      recovered if he had lived until the wrongful-death case was wrapped up. That

      is, the holding turned on the fact that an heir of the deceased statutory

      beneficiary would receive a smaller inheritance absent an award of survivor

      damages.


[8]   Here, because David left no heirs, there is no one left who can say that they will

      receive a smaller inheritance—that they would suffer a “pecuniary loss”—if

      David’s claim for survivor damages is terminated. In another case decided the

      Court of Appeals of Indiana | Opinion 45A03-1709-CT-2173 | June 14, 2018    Page 6 of 8
       same day as Bemenderfer, the Supreme Court reaffirmed that the purpose of the

       wrongful-death statute is to compensate for pecuniary loss caused by the death

       of the decedent, not to punish the defendant. Durham ex rel. Estate of Wade v. U-

       Haul Int’l, 745 N.E.2d 755, 763-64 (Ind. 2001). Requiring the Providers to pay

       survivor damages in this case—damages that would simply pass to the state—

       would serve only to punish the Providers.


[9]    Laura’s Estate maintains that the Providers will “avoid accountability” if they

       don’t have to pay survivor damages. Appellants’ Rev. Br. p. 14. That may be

       true, but it is consistent with the wrongful-death statute, which specifically

       contemplates that some fortunate defendants will not have to pay survivor

       damages. The legislature could change the statute so that all defendants are

       treated the same, but it has so far chosen not to do so.


[10]   Laura’s Estate also asserts that our holding will give wrongful-death defendants

       an incentive to “continue and delay cases as long as possible with the hopes that

       the statutory beneficiary will die.” Id. But that is true only if the statutory

       beneficiary has no heirs—as established in Bemenderfer, an heir of a statutory

       beneficiary can pursue that beneficiary’s claim for survivor damages even if the

       beneficiary dies while the claim is still pending. Moreover, a statutory

       beneficiary can usually avoid having no heirs. Here, David could have created

       heirs—and kept the Providers on the hook for survivor damages—simply by

       executing a will. He didn’t, so he has no heirs, and any survivor damages

       would pass to the state. That would be contrary to the compensatory purpose



       Court of Appeals of Indiana | Opinion 45A03-1709-CT-2173 | June 14, 2018    Page 7 of 8
       of the wrongful-death statute. Therefore, we affirm the trial court’s grant of the

       Providers’ motion for partial summary judgment.


[11]   Affirmed.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1709-CT-2173 | June 14, 2018   Page 8 of 8
