Summary judgment affirmed for grandparents in wrongful-death case after toddler drowned

Deciding a “novel issue grounded in tragedy,” the Indiana Court of Appeals on Monday affirmed summary judgment for a 2-year-old’s maternal grandparents after the child drowned in their backyard pool.

Judge Leanna Weissmann wrote for the unanimous appellate panel in Betty Johnson as personal representative of the Estate of Bobby Nicley as natural father and guardian of deceased minor D.N. v. Ralph Harris, Pamela Harris, and Michelle Nicley, 20A-CT-2384.

The case began in June 2013, when Bobby and Michelle Nicley’s 2-year-old son D.N. drowned while swimming at Ralph and Pamela Harris’ house. The parents divorced, and Bobby hired counsel to pursue a possible wrongful death case against his former in-laws.

However, Bobby died roughly four months after the child’s death. About two years later, Bobby’s mother, Betty Johnson, filed the wrongful death case against Michelle and her parents.

The defendants moved for summary judgment, alleging Indiana’s child wrongful death statute did not authorize Johnson to file the wrongful death case. The Morgan Superior Court agreed, finding that under the statute, Indiana Code § 34-23-2-1, “the right to pursue a case for wrongful death under the statute remains only with the surviving parent.” The surviving parent in this case was Michelle, who “would be entitled to parental immunity from suit, and, more importantly, is the only remaining person per statute who would be entitled to pursue any claims against her own parents. Under the state of the pleadings[,] she is not electing to do so.”

Johnson appealed, though she did not challenge the finding that Michelle would be entitled to immunity. Rather, she argued the trial court erred because, as personal representative of Bobby’s estate, she was authorized to file the wrongful death action under the child wrongful death statute and I.C. 29-1-13-3.

Specifically, I.C. 34-23-2-1(d) holds that, “In case of death of the person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the (wrongful death) action … .” Similarly, I.C. 29-1-13-3 holds that, “Every personal representative shall have full power to maintain any suit in any court of competent jurisdiction … for any demand of whatever nature due the decedent or his estate or for the recovery of possession of any property of the estate.”

But “(t)he plain language of the CWDS reflects a legislative intent to afford parents the sole right to decide whether to file a child wrongful death action except when both parents lack custody of the child at the child’s death,” Weissmann wrote, pointing instead to I.C. 34-23-2-1(c). “… (T)he CWDS’s title — ‘Action by Parent or Guardian’ — suggests wrongful death actions may only be filed by parents and guardians, not by grandparents who are not guardians.”

Further, the child wrongful death statute limits damages “to those sustained by parents or, to a lesser extent, guardians,” Weissmann wrote. Once damages are awarded, “the statute effectively prevents virtually anyone but parents from collecting those monies.”

“If both parents die before any child wrongful death action is filed and at least one the parents had custody of the child at the child’s death, the CWDS does not authorize anyone to file a wrongful death action after the parents’ deaths,” the judge wrote.

Likewise as to I.C. 29-1-13-1, the COA found that because Bobby’s right to sue expired when he died under the CWDS, “as personal representative of Father’s estate, (Johnson) had nothing to collect from Maternal Grandparents under Indiana Code § 29-1-13-2.”

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