Articles Posted in Wrongful Death

The Indiana Court of Appeals recently evaluated the timeliness of claims asserted under Indiana’s Child Wrongful Death Statute (CWDS). In Peters v. Girl Scouts of Southwest Indiana, Inc., Amanda Peters (Mother) filed a wrongful death lawsuit against the Girl Scouts of Southwest Indiana (Girl Scouts) after her eleven-year-old daughter Isabelle Meyer was killed when a tree fell and struck her at a camp operated by the Girl Scouts. At the time of Isabelle’s death, Cynthia Meyer (Grandmother) and her husband were co-guardians of Isabelle. After the Girl Scouts filed a motion to dismiss Mother’s lawsuit for failure to join Benjamin Brassard (Father) in the lawsuit, Mother added Father as a defendant to answer as to his interest; however, service was not perfected, and he did not answer, until more than two years after Isabelle’s death. The trial court ultimately denied the motion to dismiss Mother’s claim. Then, almost three years after Isabelle’s death, Mother added Grandmother as a defendant due to her guardianship of Isabelle; however, Grandmother never appeared or filed an answer in the action. The Girl Scouts thereafter filed a motion to dismiss Father’s and Grandmother’s claims as untimely, which the trial court ultimately granted, despite Mother’s argument that their claims were derivative of her timely filed claim.

The CWDS governs actions involving injury or death to children, which the CWDS defines as unmarried individuals without dependents who are less than 20 years of age or less than 23 years of age and enrolled in a postsecondary educational institution or a career and technical education school or program. Ind. Code § 34-23-2-1(b), (c). Actions under the CWDS may be brought by (1) the father and mother jointly, or either of them by naming the other as a codefendant to answer as to his or her interest, (2) in case of divorce or dissolution of marriage, the person to whom custody of the child was awarded, and (3) a guardian, for injury or death to a protected person. Ind. Code § 34-23-2-1(c). In the case of death, damages awarded for loss of the child’s services, love, and companionship, reasonable expenses of psychiatric and psychological counseling of a surviving parent or minor sibling, and uninsured debts of the child inure to the benefit of (1) the father and mother jointly if both parents had custody of the child, (2) the custodial parent, or custodial grandparent, and the noncustodial parent of the deceased child as apportioned by the court, or (3) a custodial grandparent if the child was not survived by a parent entitled to benefit under the CWDS. Ind. Code § 34-23-2-1 (f), (i). Importantly, a CWDS claim must be brought within two years from the date of the child’s death. Ellenwine v. Fairely, 846 N.E.2d 657, 666 (Ind. 2006).

On appeal the Court first noted the “odd procedural posture” of the case and standing issues with regards to the Mother alone appealing the dismissals of the Father’s and Grandmother’s claims. Nonetheless, recognizing it has allowed parties to raise arguments as to the dismissal of other parties when there is prejudice to a party and “some confusion” with regards to the CWDS itself, the Court addressed the merits of the parties’ arguments. The Court noted that service on the Father and his answer occurred more than two years after Isabelle’s death and the Grandmother was not added as a defendant within the two years and never appeared and answered in any case. While Mother argued that neither Father nor Grandmother were required to “bring a claim” to be entitled to an apportionment of damages under the CWDS, the Court found such inconsistent with Indiana’s trial rules and procedures requiring a claim for relief to be made by a party. As such, the Court concluded that, even though the CWDS sets forth an apportionment in their favor, Father and Grandmother were nonetheless required to assert a claim as to any damages, and the two-year time period for them to do so under the CWDS had passed, thereby making their claims properly subject to dismissal. The Court found the trial court did not abuse its discretion and affirmed on appeal.

The Indiana Supreme Court recently examined whether an individual who pleaded guilty but mentally ill to voluntary manslaughter can sue his mental health providers for negligence and emotional distress. The case presented quite a complicated procedural and factual history and, ultimately, generated a strongly worded dissent by the Chief Justice.

By way of background, Plaintiff, Zachary Miller (Miller) pleaded guilty but mentally ill to the voluntary manslaughter of his grandfather, which left his grandmother, Betty Miller, widowed. The conduct and killing arising out of Miller’s actions generated two previous appeals arising out of the same conduct. In Miller I, a case we previously blogged about here, the Court found that the federal Emergency Medical Treatment and Labor Act’s (EMTALA) statute of limitations did not preempt a state rule allowing for amendments relating back to an original pleading. Next, in Miller II, which opinion can be found here, the Indiana Court of Appeals, in reviewing Betty Miller’s claim arising out of her husband’s death, found Zachary Miller’s mental health providers were not immune from liability under two statutory provisions for failing to warn or take precautions to protect others from a patient’s violent behavior.

In the subject of this blog, Miller v. Patel, et al. decided on June 29, 2023 (Miller III), the Court first examined the case background. Miller, who suffered from severe mental illness, killed his grandfather in January 2017 after receiving allegedly negligent care from his mental health providers. Miller pleaded guilty but mentally ill to voluntary manslaughter and was sentenced to 20 years in prison, 12 executed. Miller filed a civil lawsuit against his providers, alleging that they failed to comply with the appropriate standard of care and caused him permanent injuries, pain, emotional distress, and loss of freedom from his incarceration. A medical review panel found that the providers were negligent, and their conduct was a factor of Miller’s damages. However, the trial court granted summary judgment for the providers, finding that Miller’s damages were not compensable under Indiana public policy and that he was estopped from relitigating his responsibility for the crime. The Court of Appeals reversed and remanded, holding that 1) the providers failed to show there were no genuine issues of material fact and 2) collateral estoppel did not apply to Miller’s guilty plea.

The Indiana Court of Appeals recently revived a dismissed wrongful death case brought by two stepchildren against their stepmother for the death of their father. In Estate of Bichler by Ivy v. Bichler, Jennifer Ivy and Tyler Bichler sued their stepmother, Wanda Bichler, for the death of their father, Jeffrey Bichler. Jennifer and Tyler alleged Wanda killed Jeffrey to collect on his $300,000 life insurance policy. The life insurance company had already filed an interpleader action in federal court depositing the $300,000 in life insurance proceeds with the court. Wanda thereafter died, and after her death, two individuals were appointed as personal representatives of her estate and the life insurance proceeds were transferred to state court to be distributed pending the outcome of Jennifer and Tyler’s lawsuit. While Jennifer and Tyler amended their lawsuit to add a count for a state interpleader action for the life insurance proceeds, they did not name the personal representatives of Wanda’s Estate. Wanda’s Estate intervened in the lawsuit, noting Wanda, “who was the original Defendant in the action,” had passed. Wanda’s estate then moved to dismiss Jennifer and Tyler’s lawsuit pursuant to Indiana Trial Rules 12(B)(2) (lack of personal jurisdiction), 12(B)(6) (failure to state a claim), and 12(B)(7) (failure to join a necessary party) because Jennifer and Tyler had not named the personal representatives of Wanda’s Estate as defendants. Jennifer and Tyler opposed the motion and amended their complaint to add a claim for constructive trust, while continuing to name only Wanda as a defendant. The trial court granted Wanda’s Estate’s motion to dismiss under Trial Rule 12(B) and Jennifer and Tyler appealed.

On appeal the Indiana Court of Appeals first explained that a dismissal based upon a plaintiff’s failure to substitute a personal representative of a defendant’s estate as a defendant should not be analyzed under Indiana Trial Rule 12, but rather Indiana Trial Rules 25 and 41(E). Under Indiana’s Survival Statute, “[i]f an individual who is… liable in a cause of action dies, the cause of action survives and may be brought… against the representative of the deceased party…” and it can also “be continued… against the legal representatives… of the deceased.” Ind. Code § 34-9-3-1. When a sole defendant dies in a case, the matter is stayed so that the proper parties can be substituted. Under Indiana Trial Rule 25, with the exception of a public official sued in an official capacity, a “motion for substitution may be made by the court, any party or by the successors or representatives of the deceased party…” Ind. R. Trial P. 25(A). Importantly, unlike Rule 25 of the Federal Rules of Civil Procedure, which states a case must be dismissed if the motion for substitution is not made within 90 days after service of a statement noting a party’s death, Indiana Trial Rule 25 does not include any time limitations for filing a motion to substitute. Nonetheless, a case is still subject to dismissal under Indiana Trial Rule 41(E) if a “Suggestion of Death” is filed putting everyone on notice that a defendant has died, and a plaintiff fails to comply with a court order setting a time to file a motion to substitute or otherwise fails to timely prosecute the action.

In this case, Wanda’s Estate did not file a Suggestion of Death but intervened in the action based upon Wanda’s passing. Contrary to Indiana Trial Rule 24(C), Wanda’s Estate did not note in its motion to intervene the claim, defense, or matter for which intervention was sought, and in its motion, Wanda’s Estate also referred to Wanda as “the original Defendant.” Jennifer and Tyler thought, reasonably so according to the Indiana Court of Appeals, that the intervention served as a substitution, but they also noted in their response to the motion to dismiss that Wanda’s Estate could be substituted if the trial court found such necessary. While noting that intervention and substitution are not the same thing, the Court of Appeals noted there is no reason an intervention cannot also serve as a substitution when the sole purpose of intervening is to replace a defendant. In any case, the Court of Appeals found Jennifer and Tyler did not fail to comply with any deadline under Indiana Trial Rules 25 or 41(E), and therefore, their case should not have been dismissed.

We previously discussed the potential significance of an MCS-90 insurance policy endorsement in a truck accident case in discussing Prime Insurance Co. v. Wright. Such an endorsement is considered a guarantee of sorts, or suretyship, by an insurance company that a federally-regulated motor carrier will meet its public financial responsibility obligation under the Motor Carrier Act of 1980 as required and regulated by the Federal Motor Carrier Safety Administration.

Recently, in Progressive Southeastern Insurance Co. v Brown, the Indiana Supreme Court addressed whether an MCS-90 endorsement applies when a commercial truck crash occurs during an intrastate trip involving the transportation of non-hazardous cargo. In Brown, the commercial truck driver, Bruce Brown, an employee of B&T Bulk, a Mishawaka-based motor carrier out of Mishawaka, Indiana, was driving a truck and empty trailer when his truck crossed the centerline, striking another vehicle killing the driver, Dona Johnson.

Ms. Johnson’s surviving spouse brought a wrongful death case against Brown and B&T on his own behalf and on behalf of his widow’s estate. Progressive Southeastern Insurance Company then filed a separate declaratory judgment case against Johnson, B&T and Brown requesting a declaration from the court that it should not owe any duty to defend or indemnify B&T or Brown, because the insurance policy it had issued did not include the truck and trailer and, although Progressive had provided B&T with an MCS-90 endorsement, the endorsement should not apply. State Farm Mutual Automobile Insurance Company, Johnson’s insurer, intervened in the case and joined with Johnson’s widow and her estate, Brown, and B&T, in arguing that the MCS-90 endorsement should apply binding Progressive to pay any final judgment in the case. The trial court agreed with Progressive that the truck and trailer were not insured autos and that Progressive had no duty to defend or indemnify Brown. However, the trial court found the MCS-90 endorsement applied, which ruling Progressive appealed.

The Indiana Court of Appeals recently affirmed the judgment of a trial court finding a paternal grandmother serving as personal representative of her deceased son had no standing to file a wrongful death case under Indiana’s Child Wrongful Death Statute (CWDS) for the death of her grandson. In Johnson v. Harris, a two-year-old boy drowned while swimming in his maternal grandparents’ swimming pool. The boy’s parents divorced 4-5 months after his death and the boy’s father then died four days later. Betty Johnson (“Paternal Grandmother”), as personal representative of the boy’s father’s estate, filed a wrongful death lawsuit against the mother and maternal grandparents. The mother and maternal grandparents filed a motion for summary judgment arguing the CWDS did not allow Paternal Grandmother to file a lawsuit arising from the boy’s death. The trial court granted the motion, and Paternal Grandmother appealed.

The CWDS applies when a child dies because of a wrongful act or omission causing injury or death to the child. Ind. Code § 34-23-2-1. The CWDS defines child in subsection (b) as an unmarried individual without dependents who is less than 20 years old or less than 23 years old and enrolled in a postsecondary educational institution or a career and technical education school or program. The CWDS specifically states who may bring an action under the CWDS in subsection (c): (1) the father and mother jointly, or either of them by naming the other parent as a codefendant to answer as to his or her interest, (2) the person to whom custody of the child was awarded in the case of divorce or dissolution of marriage (with the Indiana Court of Appeals noting in Johnson v. Harris that it had previously interpreted the CWDS to also permit non-custodial parents standing to bring an action for injury or death of a child), and (3) the child’s guardian. The CWDS also provides in subsection (d) that in the case of the death of a person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the action for the child’s death.

Paternal Grandmother argued on appeal that she was entitled to bring the action under subsection (d) because of her son’s death and her appointment as his personal representative. She also argued she was entitled to bring the action under Indiana’s probate code, which allows personal representatives of deceased persons to maintain lawsuits for any demand due the decedent or his estate or for the recovery of property of the estate. However, the mother and maternal grandparents argued that the boy’s father was never awarded custody of the boy and no wrongful death lawsuit had been filed, thus making subsection (d) of the CWDS inapplicable.

The Indiana Court of Appeals recently issued an opinion allowing a deceased woman’s estate to move forward in a wrongful death lawsuit arising from the operation of a county 911 system. In Howard Cty. Sheriff’s Dep’t & Howard Cty. 911 Commc’ns v. Duke, Tammy Lynn Ford (“Ford”) called the Howard County 911 Dispatch from her cell phone, provided her address, and reported she could not breathe. According to the County’s standard operating procedures, dispatchers were supposed to verify a caller’s location and manually enter it into the computer. The two dispatchers who took Ford’s call did not correctly enter her address into the computer or verify her address, and as a result, medics were dispatched to the wrong address. Once medics finally arrived at the correct address, Ford had no pulse. She was subsequently pronounced dead at the hospital.

Derrick Duke and Dustin Duke, as co-personal representatives of the Estate of Tammy Lynn Ford (the “Ford Estate”), filed a lawsuit against the County alleging the County’s 911 delay caused Ford’s death and the County’s actions amounted to willful and wanton misconduct. Under Indiana law, governmental entities have immunity for losses resulting from the use of a 911 system, except to the extent of willful or wanton misconduct. Willful or wanton misconduct includes an intentional act done with reckless disregard of the natural and probable consequence of injury to a known person under circumstances known to the actor at the time, or an omission or failure to act when the actor has knowledge of the natural and probable consequence of injury and the actor’s opportunity to avoid the risk. To prove willful and wanton misconduct, a plaintiff must show (1) the defendant had knowledge of an impending danger or consciousness of a course of misconduct calculated to result in probable injury, and (2) the defendant’s conduct exhibited an indifference to the consequences of the defendant’s conduct. Typically, whether a defendant engaged in willful and wanton misconduct is a question of fact for the trier of fact to decide (e.g., a jury). However, in this case, the County filed a motion for summary judgment arguing that the trial court should find as a matter of law that it did not engage in willful and wanton misconduct, and as such, was entitled to the 911 immunity. The trial court denied the County’s motion and the County appealed.

On appeal, the Indiana Court of Appeals noted that to succeed in its motion for summary judgment, the County was required to show that there was no genuine issue of material fact as to whether it engaged in willful and wanton misconduct. The County argued its dispatchers’ actions were not willful and wanton, but merely a simple mistake. However, the Ford Estate designated evidence in response showing that there had been prior reported problems with the 911 dispatch reported by the Kokomo Police Department and the Kokomo Fire Department and the dispatchers’ failure played a “big role” in Ford’s death. As such, the Indiana Court of Appeals found there existed a genuine issue of material fact as to whether the County engaged in willful and wanton misconduct and the County was not entitled to the 911 immunity as a matter of law. The Court affirmed the trial court’s order denying the County’s motion and remanded the case for further proceedings.


Super Lawyers rates Indiana attorneys on a yearly basis in more than 70 different practice areas, including personal injury and medical malpractice.  Following its completion of a peer review process, together with a patented evaluation process, the organization determines the lawyers in Indiana it will include on its Super Lawyers and Rising Stars list and announces those named online and in its Super Lawyers Magazine.  Super Lawyers rates attorneys nationwide among their peers for their respective states and areas of practice.

This year marks Barsumian’s fourth consecutive selection as a Super Lawyer in the field of personal injury.  Super Lawyers recognizes no more than 5 percent of the attorneys in Indiana.  Barsumian was previously selected as a Rising Star on four occasions.  Armiger, recognized for the area of medical malpractice, has now been selected to the Rising Star list on five occasions.  The Rising Stars designation recognizes attorneys 40 years old or younger and represents only 2.5 percent of the attorneys in Indiana.

Barsumian and Armiger are proud of this recognition and look forward to continuing to serve their clients in the Indianapolis and Evansville area in the areas of personal injury, medical malpractice, and wrongful death.

The United States Court of Appeals for the Seventh Circuit recently requested the Indiana Supreme Court address two questions through a process known as certification of questions.  Both Seventh Circuit Rule 52(a) and Indiana Rule of Appellate Procedure 64 recognize federal courts may seek guidance from a state’s highest court on questions arising under the law of that state which will control the outcome of a case pending in federal court.

The questions arose out of a tragic car crash in Gibson County, Indiana, which claimed the lives of two drivers and a passenger.  Sylvia Watson was driving from a repair shop in Owensville, Indiana to Princeton, when she approached a red light and exclaimed to the sole survivor of the crash, her granddaughter/passenger, Brandy Mayer, that she could not stop the vehicle.  Watson’s vehicle struck a vehicle driven by Claudine Cutchin, whose daughter, Adelaide, was in the passenger seat.  Claudine died at the scene and Watson and Adelaide died later from the injuries suffered.

A blood test on Watson revealed opiates in her bloodstream and Mayer recounted Watson had taken two pills before leaving the repair shop.  It was later discovered that a physician had prescribed Watson eight different medications, including an opioid and muscle relaxers.

Depending on the circumstances surrounding a fatality caused by another’s negligence, Indiana statutes may place limits on the monetary value of the human life taken when it comes to compensating the remaining family members for their loss.  Known as a “damage cap,” such limits may be triggered by the status of the negligent actor being a qualified healthcare provider or a governmental entity. Another damage cap depends on the dependency of those family members left behind, which is the topic of today’s blog.

The Indiana Court of Appeals recently ruled that the adult son of a decedent was not a dependent for purposes of Indiana’s General Wrongful Death Statute and that he could not pursue an alternative survival claim based upon the Defendants’ admissions of liability. In Franciscan ACO, Inc. v. Newman, Virginia Newman was being transported by an employee of Franciscan ACO, Inc. and/or Franciscan Alliance, Inc. (“Franciscan”). During the transport, Virginia and her wheelchair were not properly secured, and when the employee turned, Virginia and her wheelchair fell over. Virginia suffered injuries and subsequently died. Virginia’s son, Vaughn Newman, filed a lawsuit alleging wrongful death and asserting an alternative survival claim for his mother’s injuries.

Defendants filed an answer in which they admitted the factual allegations in Vaughn’s complaint as to negligence and that the negligence caused Virginia’s death. They thereafter filed a motion for summary judgment arguing that Vaughn was not a dependent under Indiana’s General Wrongful Death Statute and was therefore limited to the $300,000 cap for loss of love and companionship under Indiana’s Adult Wrongful Death Statute. They also argued the evidence established that Defendants caused Virginia’s death, and therefore, Vaughn’s survival claim should be dismissed. After holding a hearing, the trial court denied the Defendants’ motion.

A few months ago we wrote about an Indiana Supreme Court decision granting a plaintiff a new trial as a result of a trial court’s refusal to strike a biased juror for cause which caused the plaintiff to lose a peremptory strike of another juror.

In Floyd v. Neal, the Kentucky Supreme Court reversed the Kentucky Court of Appeals decision to give an alleged medical malpractice wrongful death victim’s spouse and her late husband’s estate a new trial under similar circumstances albeit with a twist of facts.

The Kentucky Court of Appeals had concluded that a juror was biased and should have been struck for cause and that the plaintiff should have thus been able to use a peremptory strike on another prospective juror who was ultimately empaneled.  In other words, a peremptory strike was utilized unnecessarily, depriving the plaintiff of utilizing it later.  The Supreme Court, over a lone dissent, concluded that the plaintiff failed to preserve the error, even though the error apparently would have been preserved under the language of then-existing precedent.  The dissent took issue with the Court’s retroactive application of a clarified striking procedure and the constitutionality of allowing a juror with an admitted bias to sit on the jury. Of significance to the Supreme Court’s decision was that in identifying the peremptory strikes she would have used, the plaintiff identified not one, but two jurors, when she only had one peremptory strike remaining.

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