ON PETITION TO TRANSFER
We hold that the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages. And, as we also held today in Durham v. U-Haul International, 745 N.E.2d 755 (Ind.2001), under the wrongful death statute loss of consortium damages may be recovered beyond the date of death of the injured spouse for the life expectancy of the deceased spouse or surviving spouse, whichever is less.
Facts and Procedural Background
In 1991, Dorothy Sturgeon shared her home with her eighty-year-old husband, Hoy Sturgeon, who suffered from both Parkinson's disease and Alzheimer's disease. In March of that year, Dorothy contacted her family physician about postmenopausal bleeding. She was referred to Dr. Kathleen Bemenderfer, who performed a dilation & curretage (D & C). The bleeding did not ease, and Dorothy was again referred to Bemenderfer in December of 1992. Bemenderfer recommended another D & C, a hysterectomy, and a laparoscopic examination.
Since Hoy's diagnosis of Alzheimer's in 1990, Dorothy had cared for Hoy in their home. When she died, Hoy was admitted to a nursing home. Hoy did not fare well at the home. He was unable to understand that his wife had died, and spent his time wandering the halls searching for Dorothy and calling out her name. His
After Hoy died, Bemenderfer moved for partial summary judgment, alleging that under the wrongful death statute Dorothy's estate is entitled only to Dorothy's medical, hospital, funeral, and burial expenses. She contended that all other items of damage were foreclosed by Hoy's death prior to the date of judgment. Bemenderfer also contended that Hoy's estate may recover on the loss of consortium claim only for the three days between Dorothy's surgery and her death because a loss of consortium claim does not survive beyond the date of the injured spouse's death.
The trial court initially granted Bemenderfer's motion. Upon reconsideration, however, the trial court vacated its ruling. The Court of Appeals affirmed the denial of partial summary judgment, concluding that: (1) the death of a surviving beneficiary during the pendency of a lawsuit does not limit wrongful death damages to medical, hospital, funeral, burial, and administrative expenses; and (2) loss of consortium damages are recoverable beyond the date of the injured spouse's death when death is the result of the tortfeasor's negligence. Bemenderfer v. Williams, 720 N.E.2d 400, 407-08 (Ind.Ct.App.1999).
Standard of Review
On appeal, the standard of review of a denial of a motion for partial summary judgment is the same as that used in the trial court. Premier Invs. v. Suites of America, Inc., 644 N.E.2d 124, 127 (Ind. 1994). Summary 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 a judgment as a matter of law. Ind.Trial Rule 56(C); Shell Oil v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.1998). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. T.R. 56(H); Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993).
I. Beneficiaries Under the Wrongful Death Statute
Williams argues that the plain language of the wrongful death statute requires only that the statutory beneficiary survive the wrongful death victim in order to recover for wrongful death. Bemenderfer counters with case law stating that a
In 1904, the Court of Appeals addressed the same issue under the general wrongful death statute in force at that time and held:
Dillier v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 34 Ind.App. 52, 57, 72 N.E. 271, 273 (1904). In Dillier, the deceased's wife survived him and commenced a wrongful death action, but died before verdict. Although the wife had three surviving brothers, a jury concluded that his wife was the only one dependent on him for support. The court concluded that the wife was the only person statutorily entitled to recovery. Because she was no longer living at judgment, there were no beneficiaries for whom the wrongful death action could be maintained. Id. at 57, 72 N.E. at 273-74.
Several cases have since cited Dillier for the proposition that the surviving beneficiary's right to wrongful death damages abates if the beneficiary dies before verdict. Wabash R.R. Co. v. Gretzinger, 182 Ind. 155, 169, 104 N.E. 69, 75 (1914) ("[A] cause of action under the statute ... in favor of a sole beneficiary would not survive the death of such person."); Thomas v. Eads, 400 N.E.2d 778, 781 (Ind.Ct.App. 1980); Shipley v. Daly, 106 Ind.App. 443, 447-48, 20 N.E.2d 653, 655-56 (1939); Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Reed, 44 Ind.App. 635, 643-45, 88 N.E. 1080, 1082 (1909). Only one of these cases, Shipley, addressed the precise issue presented by this case and Dillier. In Shipley, as in Dillier, the Court of Appeals denied recovery on behalf of a surviving spouse who died before trial. 106 Ind.App. at 447-48, 20 N.E.2d at 655. The disposition of the other three cases did not turn on an analysis of Dillier's holding that a beneficiary must survive until judgment.
In 1891, the Court of Appeals held that under the survival statute the action of a father for the wrongful death of a child does not abate upon his death. Pennsylvania Co. v. Davis, 4 Ind.App. 51, 54-55, 29 N.E. 425 (1891). Davis dealt with the same sections of the survival statute that Dillier addressed, but nevertheless concluded that the executrix could continue the action. There is no significant distinction between the child wrongful death statute and the general wrongful death statute for these purposes. In Jeffersonville, Madison & Indianapolis Railroad Co. v. Hendricks, 41 Ind. 48, 75-76 (1872), this Court approved a jury instruction that provided: "[T]he death of one or more of [the victim's] children occurring after suit is brought, although such deceased children may have left children of their own,
The statute has been amended since Dillier. The wrongful death statute now reads in relevant part:
Ind.Code § 34-23-1-1 (1998).
These changes also suggest that Dillier rests on reasoning that is not persuasive under the current statutory scheme. First, the phrase "if such decedent depart this life [without statutory beneficiaries]" was added in 1933 as a proviso dealing with the disposition of a decedent's assets in the absence of survivors. Ind.Code Ann. § 34-1-1-2 (West 1983), Historical Note, superseded by § 34-23-1-1. It applies only if the decedent leaves no spouse or dependent beneficiaries. If there is a surviving spouse or dependent, "the remainder of the damages" after expenses inures to the benefit of the surviving spouse or dependent beneficiary. Since 1852, it has been the general rule in Indiana that the wrongful death action may be brought by the personal representative and that damages "inure to the benefit of the widow and children, if any." 2 G. & H. 330, § 784 (1870). There is no suggestion in this version of the statute that the cause of action expires if the surviving spouse or beneficiary dies before the wrongful death action is prosecuted to its conclusion.
The wrongful death statute addressed by the Dillier court did not contain that provision. The court concluded that, because the statute was in derogation of the common law, the statute could not be extended beyond "the legitimate meaning of the words employed," and that if the right of the beneficiary to bring the action were to continue, this right would have to be expressly provided by statute. Dillier, 34 Ind.App. at 58-59, 72 N.E. at 273-74. The language of the statute now 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.
Second, Dillier relied on the fact that under the survival statute at that time, a cause of action for personal injury did not survive beyond the death of the wrongdoer. Thus, the court reasoned, it would not make sense for a cause of action to survive beyond the death of the beneficiary
Bemenderfer argues that, because the purpose of the wrongful death statute is to compensate those who have suffered pecuniary loss rather than to punish wrongdoers, policy dictates that there should be no recovery where there is no remaining spouse or dependent beneficiary. Dillier shared this concern, concluding that allowing recovery after the death of the beneficiary would mean that damages would inure to the benefit of someone not contemplated by the statute. 34 Ind.App. at 57, 72 N.E. at 273. Williams responds that it would run counter to public policy to allow an elderly or infirm person's short life-expectancy to inure to the benefit of a tortfeasor. Williams also points out that permitting the death of the plaintiff to terminate the claim creates an incentive for tortfeasors and their insurers to stall litigation in the hopes that the beneficiary will die before judgment.
We agree with Williams that the policy concerns cited by the parties are at least in equipoise, and perhaps favor Williams. The circumstances of this case illustrate that point. 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. The wrongful death defendant should not be allowed to avoid compensation to a beneficiary merely because the beneficiary, as an elderly person profoundly affected by the death of a spouse, is more vulnerable than the average person. It is a staple of tort law that the tortfeasor takes her victim as she finds him. E.g., Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174, 1177 (1992).
Requiring that the beneficiary survive to the date of judgment would also create a cut-off that is arbitrary and unsupported by statute. The survivor statute was enacted in the same law that contained the wrongful death statute. It provides: "[I]f 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 (1998). Thus, the plain language of the survival statute tells us that a cause of action, once accrued, does not abate. The survival statute and the wrongful death statute must be construed together. There is nothing in the wrongful death statute that contravenes the direction of the survival statute that Hoy's claim, once accrued, survived. Nor does Bemenderfer point to anything in either the wrongful death statute or survival statute that suggests that
In sum, the legislature is of course free to limit recovery to statutory beneficiaries who survive until judgment, as Bemenderfer urges. But we conclude that it has not done so. Because we conclude that Hoy's damages did not abate upon his death, and because, as an heir, Williams stands to recover those damages, we do not address the Court of Appeals' conclusion that Dillier establishes that Williams may bring a separate action to recover her pecuniary losses. Bemenderfer, 720 N.E.2d at 405. It is also unnecessary to address the Court of Appeals conclusion that because Hoy could have proceeded directly under the Medical Malpractice Act, his claim survives his death under the survival statute. Id. at 407.
II. Loss of Consortium
Williams maintains that loss of consortium damages should be assessed for the period of time between Dorothy's death and Hoy's death. Bemenderfer claims that to the extent loss of consortium damages are appropriate, they may be recovered only for the three days between Dorothy's surgery and her death because a loss of consortium claim does not continue beyond the date of the injured spouse's death.
As we explained today in Durham v. U-Haul International, although the common law rule may have been that loss of consortium damages are not recoverable after the date of the injured spouse's death, loss of consortium damages have long been recoverable beyond this date under the wrongful death statute. 764 N.E.2d 745, 755 (Ind.2001). As a matter of common law, the loss of consortium claim is extinguished upon Dorothy's death because the wrongful death statute provides the sole basis for recovery for a death caused by the defendant. But under the wrongful death statute, a surviving spouse may recover damages beyond the date of the death if caused by the tortfeasor. Thus, Hoy or his successor in interest is entitled to recover loss of consortium damages as a common law claim for December 21, 1992 to December 24, 1992 and under the wrongful death statute for the period from December 24, 1992 to the end of his life expectancy as of that date.
We affirm the trial court and remand for proceedings consistent with this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.