Indiana Appellate Courts Limit Damages Available under Indiana’s General Wrongful Death Statute
By Justin O. Sorrell — PartnerIndiana has three wrongful death statutes. The General Wrongful Death Statute (“GWDS”) permits the personal representative of the decedent to bring a lawsuit on behalf of the decedent’s estate. Ind. Code § 34-23-1-1; SCI Propane, LLC v. Frederick, 39 N.E.3d 675, 677-79 (Ind. 2015). The GWDS is distinguishable from the Adult Wrongful Death Statute (“AWDS”) and the Child Wrongful Death Statute (“CWDS”) because the GWDS applies only if the decedent is survived by a spouse or dependents, while the AWDS and CWDS apply only if the decedent is unmarried and has no dependents. See I.C. §§ 34-23-1-1, 34-23-1-2, and 34-23-2-1; SCI Propane, 39 N.E.3d at 679.
The purpose of Indiana’s wrongful death statutes is to compensate surviving dependents for pecuniary losses but not for loss of life. Franciscan ACO, Inc. v. Newman, 154 N.E.3d 841, 848 (Ind. Ct. App. 2020). Pecuniary loss is the foundation of the wrongful death action, and this loss can be determined in part from the assistance the decedent would have provided through money, services, or other material benefits. Id.
Wrongful death actions did not exist as common law because tort liability for personal injury did not survive the death of the injured party. Chamberlain v. Parks, 692 N.E.2d 1380, 1384 (Ind. Ct. App. 1998) (citing Ind. Code § 34-1-1-2, which was recodified as I.C. § 34-23-1-1). Thus, it is well settled that wrongful death actions are purely statutory, and only damages prescribed by the applicable wrongful death statute may be recovered. See id.; see also Franciscan, 154 N.E.3d at 848) (“Because wrongful death actions are purely creatures of statute and in derogation of common law, they are strictly construed and only those damages prescribed by statute may be recovered.”); and see Durham v. U-Haul Int’l, 745 N.E.2d 755, 759 (Ind. 2001) (the GWDS is in derogation of common law, thus it is construed strictly against the expansion of liability).
For example, in Estate of Kuba by Kuba v. Ristow Trucking Co., the Indiana Supreme Court was asked to decide whether a claim for damages is available in wrongful death actions. 508 N.E.2d 1, 2 (Ind. 1987). The Court observed that the wrongful death statute makes no mention of treble damages, and because the statute is in derogation of common law it must be strictly construed. Id. The Court also noted that the legislature has traditionally limited the elements of damages for which recovery could be had. Id. Despite the statute’s inclusion of the phrase “but not limited to,” the Court decided “this language can not be broadly construed to permit any perceivable damage claim to be available in a wrongful death action.” Id. Ultimately, the Court decided “[t]he confines and limitations inherent in a statutorily based wrongful death action do not permit a claim for treble damages.” Id. at 3.
Later, in Durham, the Indiana Supreme Court was asked to decide whether punitive damages are available to a plaintiff under the GWDS. The Court observed that the Indiana legislature had declined to explicitly authorize punitive damages under the GWDS, despite a consistent line of cases finding punitive damages unavailable. Durham, 745 N.E.2d at 761. The Court also disagreed that there is an identifiable trend in Indiana law in favor of expanding access to punitive damages, noting several instances where the Indiana legislature has explicitly curtailed their availability altogether. Id. at 762. Moreover, the Court reiterated that the goal of the GWDS was to compensate survivors of the wrongful death victim rather than to punish defendants. Id. at 764. Thus, the Court reaffirmed that “punitive damages are not recoverable in a wrongful death action.” Id. at 766.
Then, in SCI Propane, the Indiana Supreme Court was asked to decide whether attorneys’ fees are recoverable by a surviving spouse or surviving dependents under the GWDS. 39 N.E.3d at 676. The Court observed that the CWDS expressly allows for the award of attorneys’ fees, and the Court had previously authorized recovery of attorneys’ fees under the AWDS. Id. at 679. However, the Court also observed that it had previously determined that the GWDS “‘can not be broadly construed to permit any perceivable damage claim to be available in a wrongful death action.’” Id. at 680 (quoting Estate of Kuba, 508 N.E.2d at 2). The Court found the rule announced in Kuba and upheld in Durham controlling, and the Court decided “[a]ttorneys’ fees . . . do not qualify as damages, because since the estate ultimately bears the burden for their payment, such fees do not evolve from a deprivation to a survivor.” Id. (internal quotation marks and citations omitted) (emphasis in original). Thus, the Court decided “attorneys’ fees are not recoverable as compensatory damages under the GWDS when the decedent leaves a surviving spouse and/or dependents.” Id. at 681.
More recently, in Edna Martin Christian Ctr., Inc. v. Smith, we asked the Indiana Court of Appeals to decide whether a claim for intentional infliction of emotional distress was permitted under the GWDS. 202 N.E.3d 1118, 1119 (Ind. Ct. App. 2023). The Court reiterated that “[p]ecuniary loss is the foundation of a wrongful death action[.]” Id. at 1121. Thus, the damages to which any dependents were entitled “must be tied to pecuniary losses, and those that are related to loss of life, grief, and wounded feelings are not recoverable.” Id. at 1124. The Court also observed that in Ind. Patient’s Comp. Fund v. Patrick, the Indiana Supreme Court held that emotional distress damages are disallowed under the AWDS. Id. (citing 929 N.E.2d 190, 191 (Ind. 2010)). The Court of Appeals cited to Patrick, and similarly concluded that permitting a decedent’s estate to advance a separate claim for emotional distress damages would result in an improper expansion of liability, which is contrary to the principle that only statutorily prescribed damages are allowable under Indiana’s wrongful death statute. Id. For these reasons, the Court concluded the estate’s claim for intentional infliction of emotional distress was not permitted under the GWDS. Id.
While Indiana law on the damages available under the GWDS is well-settled, evaluating cases within this framework can be complicated. If you are presented with a claim seeking damages under a wrongful death statute, we recommend you promptly consult with an attorney to seek guidance.
Justin Sorrell – Attorney at Law
Justin is a problem-solver who seeks creative solutions to his clients’ legal issues while understanding and advising his clients of the business impact of litigation and transaction choices to help guide his clients’ decision-making. Justin has served as outside corporate counsel, including handling bank loan transactions, real estate transactions, and commercial leases, and loan work-outs and bankruptcy matters.
When disputes arise and an amicable resolution is not possible, Justin is an experienced litigator who aggressively and diligently pursues his clients’ interests in many types of disputes in federal and state courts across Indiana. He often represents businesses and employers in lawsuits including wage and retaliation claims, trade secret and confidentiality claims, non-competition and non-solicitation covenants, breach of contract claims, collections, and appeals. Justin also defends health-care providers against licensing complaints, including against consumer complaints and administrative complaints brought by the Office of the Attorney General. He has helped numerous clients amicably resolve contentious disputes, saving them and their businesses significant time and money.