                                                                          Oct 26 2015, 8:44 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Brent Westerfeld                                           W. Brent Threlkeld
      Indianapolis, Indiana                                      Indianapolis, Indiana

      William M. Horne                                           Kelly A. Roth
      Indianapolis, Indiana                                      Indianapolis, Indiana




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Robbie Lomax,                                              October 26, 2015
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 12A05-1503-CT-124
              v.                                                 Appeal from the Clinton Superior
                                                                 Court
      Jennie L. Michael,                                         The Honorable Justin H. Hunter,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 12D01-1203-CT-210



      Altice, Judge.


                                                 Case Summary


[1]   Edward Lomax died as a result of injuries sustained after the bicycle he was

      riding was struck from behind by a vehicle driven by Jennie Michael. Robbie

      Lomax, individually and as Personal Representative of the Estate of Edward


      Court of Appeals of Indiana | Opinion 12A05-1503-CT-124 | October 26, 2015                 Page 1 of 9
      Lomax (the Estate), filed a wrongful death action against Jennie. The trial

      court granted partial summary judgment in favor of Jennie based on its

      conclusion that Robbie does not qualify as a dependent next of kin to Edward

      as required by Ind. Code § 34-23-1-1, otherwise known as the General

      Wrongful Death Statute (GWDS). Finding no just cause for delay, the court

      issued a final judgment against Robbie, individually. Robbie appeals, asserting

      that the facts demonstrate he does qualify as a dependent next of kin, or, in the

      alternative, that there is at least a question of fact as to whether he is a

      dependent next of kin thus making summary judgment inappropriate.


[2]   We reverse and remand.


                                        Facts & Procedural History


[3]   On December 24, 2010, Edward was riding his bicycle in the town of Frankfort

      when he was struck from behind by a vehicle operated by Jennie. Edward died

      two days later as a result of the injuries he sustained in the accident.


[4]   Edward was Robbie’s uncle and Robbie’s last living relative on his Father’s side

      of the family. Edward was not married and did not have any children. Edward

      had lived in the same home with Robbie on and off since Robbie was a child.

      Since approximately 2005 or 2006, Edward began living with Robbie and his

      wife on a full-time basis. Robbie described his relationship with Edward as that

      of a father and son.




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[5]   While Edward lived with Robbie, Edward contributed financially to the

      household. Edward received $700 each month in government assistance, of

      which he regularly paid $400 to Robbie. According to Robbie, this money went

      toward rent and utility bills. The rent for the home they lived in at the time was

      $600 a month. During this timeframe, Robbie operated a local bar, which

      eventually closed because it was not financially viable. Robbie then went to

      work as an auto body repairman, but after two years, left the employment

      because he was not being paid for his hours worked.


[6]   In addition to the regular $400 contributions to the household, Edward would

      make separate financial contributions to help cover grocery and other

      miscellaneous expenses, especially during times when Robbie’s financial

      situation was bleak. Edward also contributed to the household by helping to

      take care of Robbie’s dogs and with household chores such as vacuuming and

      dishes. Edward and Robbie would go on bike rides together and hang out in

      the evenings.


[7]   On December 2, 2011, Robbie was appointed to be the Personal Representative

      of the Estate for the sole purpose of pursuing a wrongful death action.

      Thereafter, Robbie filed a wrongful death action in both an individual capacity

      and on behalf of the Estate on March 8, 2012. In the complaint, Robbie sought

      damages “for hospital and medical expenses, funeral and burial expenses, lost

      earnings, costs and expenses incurred in the administration of the estate and

      prosecuting this complaint, including attorney fees, for pain and suffering, as

      well as the loss and enjoyment of life, and for the loss of financial support, love,

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       and companionship he provided to his next of kin . . . .” Appellant’s Appendix at

       11. Robbie alleged therein that he was Edward’s dependent next of kin.


[8]    Jennie filed an Answer to the Complaint and subsequently filed a motion for

       summary judgment on December 27, 2013, which the trial court denied. Jennie

       filed a second motion for summary judgment on October 2, 2014, to which

       Robbie responded. The trial court heard arguments from both parties and, on

       February 25, 2015, issued its order granting partial summary judgment in favor

       of Jennie. The court concluded that the evidence did not establish Robbie was

       a dependent next of kin for purposes of the GWDS, and thus, dismissed Robbie

       in his individual capacity from the action. Finding there was no just reason for

       delay, the court entered final judgment against Robbie in his individual

       capacity. See Ind. Appellate Rule 54(B). This appeal ensued. Additional facts

       will be provided as necessary.


                                            Discussion & Decision


[9]    On appeal, Robbie does not challenge the court’s dismissal of him from the

       action in his individual capacity, but rather challenges only the court’s

       determination that he does not qualify as a dependent next of kin. This

       determination is relevant because the wrongful death claim as between the

       Estate and Jennie is still pending and if Robbie is found to be a dependent next

       of kin, he could recover pecuniary damages related to Edward’s death.


[10]   When reviewing a trial court’s ruling on summary judgment, we apply the same

       standard as the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013).

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       Summary judgment is appropriate where there is no genuine issue of material

       fact and the moving party is entitled to judgment as a matter of law. Ind. Trial

       Rule 56(C). Our review is limited to facts designated to the trial court. Meredith

       v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013). All factual inferences are made in

       favor of the non-moving party, and we resolve all doubts as to the existence of

       an issue of material fact against the moving party. Manley, 992 N.E.2d at 673.

       The appellant has the burden of demonstrating that the summary judgment

       ruling was erroneous. Amaya v. Brater, 981 N.E.2d 1235, 1239 (Ind. Ct. App.

       2013), trans. denied.


[11]   The GWDS provides, in pertinent 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 therefor against the latter . . . and the
               damages 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, 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. . . . [W]hen such decedent leaves no such widow,
               widower, or dependent children, or dependent next of kin,
               surviving him or her, the measure of damages to be recovered
               shall be the total of the necessary and reasonable value of such
               hospitalization or hospital service, medical and surgical services,
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               such funeral expenses, and such costs and expenses of
               administration, including attorney fees.


       I.C. § 34-3-1-1. Here, it is undisputed that Edward left no widow or dependent

       children. In order for Robbie to recover under the GWDS, Robbie must

       establish he is Edward’s dependent next of kin.


[12]   We begin by noting that the purpose of the GWDS is to benefit survivors by

       providing compensation for the loss of the decedent’s life. Luider v. Skaggs, 693

       N.E.2d 593, 596 (Ind. Ct. App. 1998), trans. denied. Pecuniary loss is the

       foundation of a wrongful death action. Id. This loss can be determined in part

       from the assistance the decedent would have provided through money, services,

       and other material benefits. Southlake Limousine & Coach, Inc. v. Brock, 578

       N.E2d 677, 679 (Ind. Ct. App. 1991), trans. denied.


[13]   Our Supreme Court has set a standard for dependency in the context of

       wrongful death actions. The Court has stated that “proof of dependency must

       show a need or necessity of support on the person alleged to be dependent . . .

       coupled with the contribution to such support by the deceased.” New York Cent.

       R.R. Co. v. Johnson, 127 N.E.2d 603, 607 (Ind. 1955); see also Deaconess Hosp., Inc.

       v. Gruber, 791 N.E.2d 841, 845 (Ind. Ct. App. 2003) (describing the two-part test

       to prove dependency as (1) a need or necessity of support on the part of the

       alleged dependent; and (2) actual contribution to such support by the deceased).

       This court has further explained:




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               Dependency is based on a condition and not a promise, and such
               dependency must be actual, amounting to a necessitous want on
               the part of the beneficiary and a recognition of that necessity on
               the part of decedent, an actual dependence coupled with a
               reasonable expectation of support or with some reasonable claim
               to support from decedent. The mere fact that deceased
               occasionally contributed to the support of the beneficiary in an
               irregular way, is not sufficient to support the action . . . .


       Wolf v. Boren, 685 N.E.2d 86, 88 (Ind. Ct. App. 1997) (quoting Kirkpatrick v.

       Bowyer, 169 N.E.2d 409, 412 (Ind. App. 1960)), trans. denied. Total dependency

       is not required. Deaconess Hosp., 791 N.E.2d at 846. In fact, a “plaintiff may be

       partially dependent even though he could survive without the contribution

       made by the deceased.” Id. (citing Lustick v. Hall, 403 N.E.2d 1128, 1131-32

       (Ind. Ct. App. 1980)).


[14]   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. 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. The Supreme Court held that the GWDS 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 606-07. The Court


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       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.

       Id. at 607.


[15]   In Necessary v. Inter-State Towing, 697 N.E.2d 73 (Ind. Ct. App. 1998), trans.

       denied, decedent’s son filed a wrongful death action after his mother was killed

       in an automobile accident. Decedent resided with her son and grandson for

       several years preceding her death and they shared household expenses.

       Decedent made regular financial and non-financial contributions to the

       household. Even though the evidence also established that decedent’s son and

       grandson could survive without the decedent’s contributions, the court held a

       jury could have reasonably concluded that the familial and financial

       relationship gave rise to a “partial and mutual dependency” between decedent

       and her son and grandson. Id. at 78. The court therefore concluded that

       summary judgment was improper.


[16]   The same result follows here. We note that Edward regularly contributed a

       significant portion of his monthly government benefits to help cover household

       expenses. Edward was also helpful with household chores and on occasion

       would make additional financial contributions to pay for other types of

       expenses. And, even though Robbie never asked Edward to contribute, it

       remains that Edward’s contribution was significant in terms of the costs

       associated with maintaining Robbie’s household. Moreover, during the time

       Edward lived with Robbie and his wife, Robbie and his wife struggled

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       financially in that they were dealing with a failing business and then a period of

       non-payment of earned wages. Given the facts as designated to the court, a

       reasonable trier of fact could conclude that Robbie was dependent on Edward,

       at least in part, or that Robbie was not, in fact, a dependent next of kin to

       Edward. A determination in this regard is a matter appropriately reserved for

       the finder of fact. See id.; cf. Longest ex. rel Longest v. Sledge, 992 N.E.2d 221, 230

       (Ind. Ct. App. 2013) (affirming the grant of summary judgment on ground that

       parents of adult decedent were not dependent next of kin where decedent

       contributed $50 to $100 per week to offset expenses of him living with his

       parents because such contributions were not regular and amounted to “no more

       than the sort of gifts, acts of generosity, and kindness to be expected of a son

       still living under his parents’ roof”), trans. denied. Having concluded that

       questions of fact exist as to whether Robbie is a dependent next of kin to

       Edward, we reverse the trial court’s grant of partial summary judgment in favor

       of Jennie and remand this matter to the trial court for further proceedings.


[17]   Judgment reversed and remanded.


       Riley, J., and Brown, J., concur.




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