Indiana Wrongful Death

Wrongful Death in Indiana

Wrongful death cases in the state of Indiana are governed by statute. At common law, there had been absolutely no tort liability for killing another person, because personal injury claims did not survive the injured party’s death. Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind.Ct.App.1994), adopted by 678 N.E.2d 110 (Ind.1997). Today, wrongful death cases have grown in number, and have developed a body of case law. It is an area of the law that is strictly governed by Indiana statute (code).

Indiana Wrongful Death Process

Indiana’s wrongful death statute (called WDS), Ind. Code § 34-23-1-1 (see below), requires that an estate be opened and the personal representative to recover damages on behalf of the surviving spouse, dependent children, or dependent next of kin.

The “Child Wrongful Death” statute Ind. Code § 34-23-2-1 (see below) allows parents or guardians to recover damages for the wrongful death of unmarried children who had no legal dependents and were under twenty (20) years of age (unless they are in school, and then it is twenty-three).

The statutes allows for the recovery of loss of services, loss of love, care and affection, as well as funeral and medical expenses (with some qualifications), in a wrongful death case.

If an adult dies as the result of the wrongful act or omission of another (deemed a “wrongful death” under the statute) and that adult was unmarried, did not have any dependent children, and was not himself or herself a “child” under    Ind. Code § 34-23-1-2 (see below), then there are some limitations to the recovery possible under the Indiana Wrongful Death Statute. The loss of love and affection is capped at $300,000.00.

The Value of life in a Wrongful Death case

Some years ago, I represented a client whose spouse had been killed in an accident. She had three children. I hired an Economist to value the life of the mother. What was interesting was the fact that her value as a housewife and mother, exceeded her value if she’d been working as a Nurse. Her services were valued at over $2 million dollars as a housewife, but was valued under that amount  as a Nurse. It is a sad reality of life that in these cases, one’s life (some lives) must be measured in dollars. This wrongful death case was settled for a rather large sum of money because (1) there were young children left alive; and (2) there was a husband left alive; and (3) she was relatively young and her life expectancy was relatively long; and (4) she possessed an amazing array of skills that demonstrated that her worth, her value, to those children and her husband, was substantial; and (5) the insured carried a very large amount of coverage. (It does little good, in a wrongful death case, to obtain a large verdict where the defendant has no money, nor an expectation of any substantial sums, and the insurance coverage is small.)

Indiana has Capped Some Wrongful Death Claims

Indiana has chosen to cap certain kinds of cases, and will disallow some claims. In other words, the only value for the wrongful death of some people is to be found in satisfying their doctor bills, funeral expenses and burial costs. That’s about it. The state has chosen to devalue certain lives.

Wrongful Death in Indiana treats childless adults who die, differently

It is ironic that a man or woman who is a victim of a wrongful death in this state, who is childless, without a living parent, and who had a home valued at $200,000.00, with debts  amounting to $210,000.00, would leave the earth owing $10,000.00. Not a dime would go towards paying creditors (except the doctor, hospital, funeral home and cemetery). No heir would get anything because of the wrongful death. Indiana has chosen to make his or her life of little value. The deceased person is, in essence, worth less because of his or her status in life, to wit, unmarried, without parents, and without children. Indiana holds that no one but a child or parent can lose “love and affection.”  The statute clearly states that after payment of the doctor, hospital, funeral home and cemetery bills, the balance of any award “inure to the exclusive benefit of a nondependent parent or nondependent child of the adult person.”

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INDIANA WRONGFUL DEATH STATUTES

Ind. Code § 34-23-1-1 – Wrongful Death
Chapter 1. Wrongful Death Generally

Sec. 1. 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, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission. When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years, 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. If such decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him, the damages inure to the exclusive benefit of the person or persons furnishing necessary and reasonable hospitalization or hospital services in connection with the last illness or injury of the decedent, performing necessary and reasonable medical or surgical services in connection with the last illness or injury of the decedent, to a funeral director or funeral home for the necessary and reasonable funeral and burial expenses, and to the personal representative, as such, for the necessary and reasonable costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney’s fee, and in case of a death under such circumstances, and when 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, such funeral expenses, and such costs and expenses of administration, including attorney fees.

IC 34-23-1-2 Wrongful death actions; damages

Chapter 1. Wrongful Death Generally

Sec. 2. (a) As used in this section, “adult person” means an unmarried individual:
(1) who does not have any dependents; and
(2) who is not a child (as defined in IC 34-23-2-1).
(b) If the death of an adult person is caused by the wrongful act or omission of another person, only the personal representative of the adult person may maintain an action against the person whose wrongful act or omission caused the death of the adult person.
(c) In an action to recover damages for the death of an adult person, the damages:
(1) must be in an amount determined by a:
(A) court; or
(B) jury;
(2) may not include:
(A) damages awarded for a person’s grief; or
(B) punitive damages; and
(3) may include but are not limited to the following:
(A) Reasonable medical, hospital, funeral, and burial expenses necessitated by the wrongful act or omission that caused the adult person’s death.
(B) Loss of the adult person’s love and companionship.
(d) Damages awarded under subsection (c)(3)(A) for medical, hospital, funeral, and burial expenses inure to the exclusive benefit of the adult person’s estate for the payment of the expenses. The remainder of the damages inure to the exclusive benefit of a nondependent parent or nondependent child of the adult person.
(e) Aggregate damages that may be recovered under subsection (c)(3)(B) may not exceed three hundred thousand dollars ($300,000). A jury may not be advised of the monetary limits placed on damages under this subsection. If the jury awards the plaintiff damages under subsection (c)(3)(B) in an amount that exceeds three hundred thousand dollars ($300,000), the court shall reduce that part of the damages awarded to the plaintiff to three hundred thousand dollars ($300,000).
(f) A parent or child who wishes to recover damages under this section has the burden of proving that the parent or child had a genuine, substantial, and ongoing relationship with the adult person before the parent or child may recover damages.
(g) In an action brought under this section, a court or a jury may not hear evidence concerning the lost earnings of the adult person that occur as a result of the wrongful act or omission.
(h) In awarding damages under this section to more than one (1) person, the court or the jury shall specify the amount of the damages that should be awarded to each person.
(i) In an action brought under this section, the trier of fact shall make a separate finding with respect to damages awarded under subsection (c)(3)(B).
IC 34-23-2-1 Injury or death of child; action by parent or guardian

Sec. 1. (a) This section does not apply to an abortion performed in compliance with:
(1) IC 16-34; or
(2) IC 35-1-58.5 (before its repeal).
(b) As used in this section, “child” means an unmarried individual without dependents who is:
(1) less than twenty (20) years of age; or
(2) less than twenty-three (23) years of age and is enrolled in a postsecondary educational institution or a career and technical education school or program that is not a postsecondary educational program.
The term includes a fetus that has attained viability (as defined in IC 16-18-2-365).
(c) An action may be maintained under this section against the person whose wrongful act or omission caused the injury or death of a child. The action may be maintained by:
(1) the father and mother jointly, or either of them by naming the other parent as a codefendant to answer as to his or her interest;
(2) in case of divorce or dissolution of marriage, the person to whom custody of the child was awarded; and
(3) a guardian, for the injury or death of a protected person.
(d) In case of death of the person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the action for the injury or death of the child.
(e) In an action brought by a guardian for an injury to a protected person, the damages inure to the benefit of the protected person.
(f) In an action to recover for the death of a child, the plaintiff may recover damages:
(1) for the loss of the child’s services;
(2) for the loss of the child’s love and companionship; and
(3) to pay the expenses of:
(A) health care and hospitalization necessitated by the wrongful act or omission that caused the child’s death;
(B) the child’s funeral and burial;
(C) the reasonable expense of psychiatric and psychological counseling incurred by a surviving parent or minor sibling of the child that is required because of the death of the child;
(D) uninsured debts of the child, including debts for which a parent is obligated on behalf of the child; and
(E) the administration of the child’s estate, including reasonable attorney’s fees.
(g) Damages may be awarded under this section only with respect to the period of time from the death of the child until:
(1) the date that the child would have reached:
(A) twenty (20) years of age; or
(B) twenty-three (23) years of age, if the child was enrolled in a postsecondary educational institution or in a career and technical education school or program that is not a postsecondary educational program; or
(2) the date of the child’s last surviving parent’s death;
whichever first occurs.
(h) Damages may be awarded under subsection (f)(2) only with respect to the period of time from the death of the child until the date of the child’s last surviving parent’s death.
(i) Damages awarded under subsection (f)(1), (f)(2), (f)(3)(C), and (f)(3)(D) inure to the benefit of:
(1) the father and mother jointly if both parents had custody of the child;
(2) the custodial parent, or custodial grandparent, and the noncustodial parent of the deceased child as apportioned by the court according to their respective losses; or
(3) a custodial grandparent of the child if the child was not survived by a parent entitled to benefit under this section.
However, a parent or grandparent who abandoned a deceased child while the child was alive is not entitled to any recovery under this chapter.
(j) This section does not affect or supersede any other right, remedy, or defense provided by any other law.


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  2. […] over the person and/or the estate of the minor. In those cases involving automobile accidents, or wrongful death cases where a parent or parents have been killed, a Guardianship will always be required for the […]