What is wrongful death and does Indiana allow wrongful death lawsuits?
A wrongful death occurs when someone wrongfully, for example, negligently or intentionally, kills another person. Indiana wrongful death claims exist only because Indiana’s legislature has created such actions. Durham ex rel. Estate of Wade v. U-Haul Int’l, 745 N.E.2d 755, 758-759 (Ind. 2001). Indiana has three wrongful death statutes, the General Wrongful Death Statute (GWDS), Ind. Code § 34-23-1-1, the Adult Wrongful Death Statute (AWDS), Ind. Code § 34-23-1-2, and the Child Wrongful Death Statute (CWDS), Ind. Code § 34-23-2-1.
The GWDS applies when there is a surviving spouse, dependent children, or dependent next-of-kin. Ind. Code § 34-23-1-1. The AWDS applies in the case of the death of an adult person, that is, an unmarried person who does not have any dependents and who is not a child as defined by the CWDS. Ind. Code § 34-23-1-2(a). The CWDS applies in the case of injury or death of a child, which the CWDS defines as an unmarried person without any dependents who is 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). “Child” under the CWDS includes a fetus that has attained viability. Id.
Who can file wrongful death lawsuits in Indiana?
Actions under the GWDS and AWDS must be maintained by the personal representative of the decedent. Ind. Code §§ 34-23-1-1, 34-23-1-2(b). Under the CWDS, an action may be maintained by the father and mother of the deceased child jointly, or by either of them by naming the other parent as a codefendant, by the person awarded custody of a deceased child in the case of divorce or dissolution of marriage, by a guardian, and by a personal representative in the case of death of a person to whom custody of the child was awarded. Ind. Code § 34-23-2-1(c), (d).
What damages are recoverable in Indiana wrongful death claims?
Reasonable medical, hospital, funeral and burial expenses necessitated by the wrongful act or omission causing death are recoverable under all of the wrongful death statutes. Ind. Code §§ 34-23-1-1, 34-23-1-2(c)(3), 34-23-2-1(f). Loss of love and companionship are also available under all of the wrongful death statutes; however, such damages are capped under the AWDS at $300,000.00 in the aggregate. Ind. Code § 34-23-1-1; Ind. Code § 34-23-1-2(c)(3)(B), (e); Ind. Code § 34-23-2-1(f). Loss of services are recoverable under all of the wrongful death statutes. Ind. Code § 34-23-2-1(f); Indiana Patient’s Comp. Fund v. Brown, 949 N.E.2d 822, 824 (Ind. 2011); see Ind. Code § 34-23-1-1. Attorney’s fees are recoverable under the AWDS and CWDS. Ind. Code § 34-23-2-1(f)(3)(E); McCabe v. Comm’r, Indiana Dep’t of Ins., 949 N.E.2d 816, 817 (Ind. 2011). However, attorney’s fees are not recoverable as an item of damages under the GWDS when there is a surviving spouse or dependents. SCI Propane, LLC v. Frederick, 39 N.E.3d 675, 681 (Ind. 2015). Punitive damages are not recoverable under any of the wrongful death statutes. Durham ex rel. Estate of Wade v. U-Haul Int’l, 745 N.E.2d 755, 763 (Ind. 2001). Damages for pain and suffering of the decedent are also not recoverable under any of the wrongful death statutes. See Cahoon v. Cummings, 734 N.E.2d 535, 541-542 (Ind. 2000).
Who is entitled to money from a wrongful death claim?
Other than payment to the estate for recoverable expense damages, survivor damages such as loss of love and companionship inure to the exclusive benefit of the surviving spouse, dependent children, or dependent next-of-kin under the GWDS. Ind. Code § 34-23-1-1. Under the AWDS, survivor damages inure to the exclusive benefit of a nondependent parent or nondependent child, so long as the nondependent parent or child had a genuine, substantial, and ongoing relationship with the adult decedent. Ind. Code §§ 34-23-1-2(d), (f). Under the CWDS, damages for loss of love and companionship and loss of services inure to the benefit of the father and mother jointly if both parents had custody of the child, the custodial parent, or grandparent, and noncustodial parent according to their respective losses, or a custodial grandparent if the child was not survived by a parent entitled to recovery under the CWDS. Ind. Code § 34-23-2-1(i).
Is there a time limitation to file a wrongful death claim?
Yes. Wrongful death claims must be brought within two (2) years from the date of death. Ind. Code § 34-23-1-1. Other time limitations may also be applicable.
How can I get help in my wrongful death lawsuit or claim?
Barsumian Armiger Injury Lawyers has extensive experience representing clients in wrongful death cases. If you have suffered the loss of a family member due to another’s fault, call (844) 268-7775 for a free consultation, or submit information about what happened online via our website at www.barsumianlaw.com
. We charge no fee unless there’s a recovery.