Indiana Court of Appeals Affirms Dismissal of Father’s and Grandmother’s Claims in Child Wrongful Death Case

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.

You can read the full opinion here.

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