In Indiana, if someone dies because of the negligence of another, except for medical malpractice, the claim will be governed under one of the three wrongful death laws. In order to determine, which law applies, we have to look at the age of the person that passed away, whether that person was married, and/or had children. As a general rule, there is statutory law (law made by the legislature) and common law (law made by the courts). In the old days, a claim for injuries terminated when someone died. Because this was pretty unfair, the legislature got involved and created wrongful death law. It is said that a claim for wrongful death is a degradation of common law, so the statutes have to be followed to a “T”.
The difference between a wrongful death claim and a personal injury claim is that a wrongful death claim provides compensation for those who are left behind, whereas a personal injury claim, compensates the injured person.
The Indiana General Wrongful Death Act
The general wrongful death law applies to adults who are married and/or have dependents. The potential recovery under the general wrongful death act is not capped, but it limits the elements of damages to:
Lost earnings are not recoverable whenever a decedent has no living dependents or spouse, even where the dependents or spouse were living at the time of decedent's death;
"Dependency" under the statute is defined as an actual need for the support of the decedent and it can include pecuniary and non-pecuniary support as well as parental dependence on children;
Evidence of love, care, and affection may be submitted only after dependence is established;
Evidence of love, care, and affection should be reviewed for relevance and unfair prejudice on a case-by-case basis.
The Indiana Adult Wrongful Death Act
If a person who passed away is an adult, with no spouse and no dependents, the adult wrongful death act will apply to the claim. Whereas non-economic (loss of love, and companionship) damages are not capped under the general wrongful death statute, non-economic damages are capped at $300,000 in these situations. There is no claim for lost wages in these circumstances. This makes sense because there is no spouse or dependents of the person who passed away.
The Indiana Child Wrongful Death Act
The term “child” under this law is an unmarried individual without dependents who is less than 20 years old; or less than 23 years old and is in school. Under the child wrongful death act, a parent can bring a claim if the fetus has “attained viability.” The law defines viability as the ability of the fetus to live outside of his/her mother's womb.
The damages available under the child wrongful death act include:
- Loss of the child's services;
- Loss of the child's love and companionship;
- Expenses related to healthcare required by the negligence, funeral and burial expenses, psychological services required by the surviving parent(s), uninsured debts of the child, the administration of the child's estate (including attorney's fees).
The damage period under the child wrongful death act is limited to the time of the child's death to the date the child would have reached 20 years old or 23 years old if in school, or the date of the child's last surviving parent's death, whichever comes first.
Under all three Indiana wrongful death laws, there are no damages for pain and suffering for the decedent. Again, the wrongful death law is there to compensate the injury to the folks who remain – not the person who passed away.
What are Pecuniary Damages in an Indiana Wrongful Death Claim?
As said above, at common law, all claims for injury to a person ceased when the person died. So, Indiana's wrongful death law creates a cause of action where one did not exist years ago. The cause of action allows damages for pecuniary loss – well what is pecuniary loss? Well, pecuniary loss is the loss to the individual because of the death. For instance, the loss that a wife would have because her husband died in a car wreck.
Punitive Damages are not available in Indiana Wrongful Death Claims
If some is injured in Indiana because of gross or severe negligence of the defendant, the injured person could bring a claim for punitive damages. Punitive damages are for punishment because of bad behavior. Punitive damages are not available because the Indiana legislature didn't write punitive damages into the law. Remember, a wrongful death claim is only allowed because of a specific law/statute.
Depending on the type of Indiana Wrongful Death Claim attorney's fees may be available to offset the attorney's fees if the claim is under Indiana's Adult and Child Wrongful Death Statutes. Attorney's fees are generally not available under the General Wrongful Death Statute if the decedent leaves a surviving spouse and/or dependents.
If you have any questions about an Indiana wrongful death claim, call Guy DiMartino Law at (219) 690-8997.