By Jeff Hammond
A few months ago, a colleague asked for my thoughts on an argument made by defense counsel in his case. The situation: a single mother is killed in a crash leaving behind a young daughter. The defense attorney refuses to consider paying any damages to the young daughter beyond her 18th birthday, including for the loss of love, care and affection of her deceased mother. Can that be right?
My first reaction was “Of course not! The loss of the love, care and affection of a parent does not magically go away at age 18.” I pulled up the General Wrongful Death Statute, IC 34-23-1-1, and pointed out that there was no such limitation in the statute. The defense attorney’s argument simply could not be the way the law works in Indiana. Or is it? After studying the issue in greater detail, the answer is both “it appears so” and “absolutely not, but the caselaw and statute need to be updated to make that clear.”
The first answer is derived from the Indiana Supreme Court decision in TRW Vehicle Safety Systems, Inc. v. Moore, 936 N.E.2d 201 (Ind. 2010). In TRW, a damages award to the decedent’s son was reduced because, under the General Wrongful Death Statute, the son was entitled to damages “for the loss of love, care, affection, parental training, and guidance only during the son’s dependency, not for the projected remainder of [his father’s] life.” The Indiana Supreme Court held that a son’s loss of his father’s love, care and affection ends at age 18. If you stop your inquiry there, and many would, it “appears” that damages for the loss of love, care and affection end when dependency ends.
It is easy to understand how damages for the value of future monetary support that the son could have reasonably expected to receive from his father and even the loss of his father’s parental training and guidance could both rationally be tied to a finding of “dependency” and end when the son turns 18. In that instance, the loss ends when dependency ends. However, the same is not true when applied to the loss of love, care and affection. The loss of love, care and affection does not necessarily end when dependency ends.
The Adult Wrongful Death Statute implicitly recognizes that the loss of a deceased parent’s love and companionship may continue after the child is no longer “dependent.” Under the Adult Wrongful Death Statute, a non-dependent child is entitled to recover damages for the loss of an unmarried parent’s love and companionship for the remainder of the deceased parent’s life expectancy or the remainder of the child’s life expectancy, whichever would have ended first. IC 34-23-1-2(c)(3)(B), Indiana Model Civil Jury Inst. 733. The Adult Wrongful Death Statute does not otherwise limit the length of time that love and companionship may be recoverable, but requires proof of “a genuine, substantial, and ongoing relationship with the adult person.” IC 34-23-1-2(f). The Adult Wrongful Death Statute looks at the relationship between the non-dependent child and the parent at the time of death; if a genuine and substantial relationship existed, then a presumption is applied that the relationship (and the loss of love and companionship) would have continued in the future.
In stark contrast, the Indiana Supreme Court’s interpretation of the General Wrongful Death Statute in TRW looks at the relationship between the dependent child and the parent at the time of death, but applies the opposite presumption — that the relationship (and the loss of love, care and affection) would have ended once dependency ends. This a grossly unfair and unequal treatment of the same loss; the outcome dependent entirely on the chance that a parent dies before or after a child reaches the age of majority or otherwise is no longer dependent. If the parent’s death occurs before this mark, then the child’s recovery for the loss of the parent’s love, care and affection could be dramatically and inappropriately limited.
Under the TRW interpretation of the General Wrongful Death Statute, a dependent child who is one week shy of his 18th birthday that loses a parent may be limited to only one week of damages for the loss of love, care and affection. In contrast, under the Adult Wrongful Death Statute, an 18-year-old who is already independent and loses an unmarried parent may be able to recover a lifetime of damages for the loss of love and companionship. Such disparate treatmentunder the law is inconsistent with the primary purpose of Indiana’s wrongful death statutes, which is to compensate survivors of the wrongful death victim.
As caselaw exists today, Indiana takes a “tough love” approach to the loss of love, care and affection for minors who lose a parent. This approach derives out of an overly simplistic reading of the General Wrongful Death Statute’s use of the qualifier “dependent” as applied to children as a class of beneficiaries. The status of dependency may fairly determine the classes of beneficiaries who should be entitled to recover the value of future financial support that the decedent reasonably could have been expected to provide and for how long.
However, one’s “dependency” status does not fairly determine the classes of beneficiaries who could reasonably expect to receive ongoing love, care and affection from the decedent during his or her lifetime. If a non-dependent child is entitled to recover for the loss of love and companionship of their unmarried, deceased parent, so too should the child who was at the time of death but is no longer considered to be a dependent. It may be time for the Legislature to amend the General Wrongful Death Statute to correct this inequity and clarify the recoverable items of damages. In the absence of a legislative clarification of the law, it will be up to astute trial attorneys to identify cases in which it may be appropriate to preserve this issue for appeal so that Indiana Court of Appeals and Supreme Court may be given an opportunity to address and correct this inequity themselves.•
Jeff Hammond is a partner at Cohen & Malad LLP and can be reached at firstname.lastname@example.org. The opinions expressed are those of the author.