Indiana: Who Can Bring Claim for Death of Child When Both Parents Also Die?

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by: Colin E. Flora

Today’s discussion takes us back to Indiana’s Child Wrongful Death Statute and asks the question of what happens when the parents decease alongside the child. We will be looking at the decision in Parsley v. MGA Family Group, Inc. from the Court of Appeals of Indiana to help explain the process.

Before diving into Parsley, there are a few other cases from the past couple weeks that merit mention. The first, coming from the Indiana Court of Appeals, is Yates v. Hites, which held that an instruction on the defense of sudden emergency should not have been given to the jury where the only evidence of encountering a sudden emergency was a witness who testified that black ice was present on the roadway at the time of the accident but the defendant did not testify to encountering or driving over black ice, instead “testif[ying] that the roads were not icy that day and that she never saw any ice.” And, because the closing argument was heavily based upon the issue of sudden emergency, the defense verdict was reversed and the case sent back for a new trial.

Another interesting point was raised for the second time in the last three weeks. That point was what documents must be included in an Indiana appellant’s brief challenging a ruling on summary judgment. It first cropped up in Webb v. City of Carmel, which we discussed a couple weeks ago, and again in American Access Casualty Co. v. Cincinnati Insurance Co. Both cases provided the same point, and, as said in American Casualty:

The purpose of the appendix in civil appeals it to provide us “only those parts of the record on appeal that are necessary for the Court to decide the issues presented.” “The appellant’s Appendix shall contain . . . copies of the following documents . . . (f) pleadings and other documents from the Clerk’s Record in chronological order that are necessary for resolution of the issues raised on appeal.” When reviewing the grant of a motion for summary judgment, we may consider only those portions of the pleadings, depositions, and any other matter specifically designated to the trial court for purposes of the motion for summary judgment. Thus, when appealing the grant or denial of a motion for summary judgment, it is incumbent on the appellant to include “within their appellant’s appendix all documents relating to the disposition of the motion for summary judgment, including any documents that [appellee] designated and filed with the trial court.” In other words, American Access’ Appendix falls woefully short as it omits the motion for summary judgment, the response thereto, the parties’ respective memoranda, and the designated evidence. Even though Cincinnati Insurance submitted an Appellee’s Appendix, which was complete and contained all designated materials necessary for this court’s review, we caution American Access that it is the Appellant’s obligation to present an adequate record on appeal to permit a fair and intelligent review of the issue before us.

It merits note that the Webb court also opted not to deem the arguments on appeal waived because the appellee provided the necessary documents in its appendix.

And the third case also deals with appellate procedure in challenging summary judgment rulings in federal court. The Seventh Circuit addressed the issue in Mimms v. CVS Pharmacy, Inc., writing:

CVS did not move for judgment as a matter of law as to the fourth statement . . . . And generally a party cannot appeal the denial of summary judgment after a full trial. “Once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary-judgment motion.” Where, however, the issue appealed “involve[s] pure questions of law unrelated to the sufficiency of the trial evidence, . . . it’s not necessary for summary-judgment losers to relitigate purely legal issues . . . in a motion under Rule 50(a) or (b).”

Instead, a party wishing to preserve the issue for appeal should move for a directed verdict after the close of the plaintiff’s case-in-chief. That is not necessarily the procedure in state courts.

That finally brings us back to Parsley. The facts are particularly tragic: a fire claimed the lives of three persons, including a mother and her son. While the third person was a male adult, it is unclear from the case whether he was the father of the son. Since a man by the same last name was named as a defendant and identified as the grandfather, it appears that the deceased man was likely the boy’s father. For our purposes, we will presume that he was. The boy’s maternal grandmother was appointed the personal representative of the mother’s estate and brought claims against a handful of defendants for the deaths of her daughter and grandson. At issue was whether the grandmother could pursue the claim for the death of the grandson under Indiana’s Child Wrongful Death Statute.

Let’s look at who can bring a claim under that statute:

(c) An action may be maintained under this section against the person whose wrongful act or omission caused the injury or death of a child. The action may be maintained by:

(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) in case of divorce or dissolution of marriage, the person to whom custody of the child was awarded; and
(3) a guardian, for the injury or death of a protected person.

(d) In case of death of the person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the action for the injury or death of the child.

(e) In an action brought by a guardian for an injury to a protected person, the damages inure to the benefit of the protected person.

     What happened was the grandmother brought a claim directly asserting that she was the “de facto guardian” of her grandson, “as she was ‘the person who provided all of the financial, housing, clothing and other physical needs of’” the grandson. But the Court of Appeals, looking to definitions of guardian elsewhere in the Indiana Code determined that guardian, for purposes of the Child Wrongful Death Statute, must “be someone appointed by the court to be responsible for the care of a particular person or that person’s property.” Using that view, the court held that the grandmother could not pursue the claim for her grandson.

First, was the Court of Appeals correct? I don’t think so. Based on the two statutory sections that the court reviewed, it is easy to say why the court thinks there must be a formal appointment. But the court does not appear to have been fully informed on the topic. Neither party appears to have brought to the court’s attention the juvenile waiver statute. Under that statute, the constitutional and legal rights of a child can only be waived by “the child’s custodial parent, guardian, custodian, or guardian ad litem” or by the child if “a custodial parent, guardian, or guardian ad litem” is present. In interpreting that statute, the Indiana Supreme Court has held that “guardian” “include[s] de facto guardians acting in loco parentis.” The court explained, “Th[at] interpretation is sensible and complies with the spirit of the law and promotes the purpose of ‘afford[ing] the juvenile defendant a stabilizing and relaxed atmosphere in which to make a serious decision that could possibly affect the rest of his life.’” It would seem that the Child Wrongful Death Statute’s intention of allowing direct suit by those who were the functional parents to a child without need to open an estate is also best served by interpreting “guardian” to include de facto guardians. With the court not having considered this guidance, I would consider the issue still open for future challenge or even for further review in the Parsley case.

There is another angle meriting consideration. The Court of Appeals, in King v. King, indicated that a non-custodial parent may meet the definition of “guardian” as used in the Child Wrongful Death Statute: “If the custodial parent fails to bring suit in the first instance, the non-custodial parent may well be able to maintain the action as a guardian[.]” That a non-custodial parent could bring a claim was established two years before that statement in the case Chamness v. Carter but the case did not explain the basis in the statutory text for its conclusion. Instead, it appears that King explains the statutory rationale. And King cites Chamness in other portions of its discussion, signaling that the court was aware of the Chamness holding. Construing “guardian” as narrowly as Parsley did appears to contrast with the several cases that hold a non-custodial parent can bring a claim on behalf of the deceased child even if the custodial parent has not filed suit. (The two cannot simultaneously pursue different claims, they must be brought in one action with the filing parent naming the other as a defendant.)

So what else could be done if the grandmother cannot bring the case as a de facto guardian? Well the statute instructs, “In case of death of the person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the action for the injury or death of the child.” That is an important nuance because an estate cannot otherwise pursue a child wrongful death claim. As the Court of Appeals explained in Johnson v. Parkview Health Systems, Inc.:

Comparing the [General Wrongful Death Statute (“WDS”)] and the [Child Wrongful Death Statute (“CWDS”)], we see that the legislature has made different choices regarding who may pursue an action for wrongful death under the respective statutes. When an action is brought under the WDS, it must bebrought by the personal representative of the decedent. When an action is brought under the CWDS, it must bebrought by the decedent’s parents, by the parentwho has custody of the child following a divorce or dissolution of marriage, or the guardian of the child. The personal representative of the decedent’s estatemay not maintain the cause of action except upon the death of the person to whom custody of the child was awarded. No other result may be obtained according to the language employed by our legislature.

Because it appears that both of the parents were taken with the fire that claimed the grandson, it appears that the grandmother could have brought this action had she opened an estate on behalf of the boy.

An interesting issue arises if the man who perished in the fire was not the boy’s father, with the biological father being non-custodial and alive. Though I have not seen this precise issue arise, here is how I think it would play out. The trigger for allowing a personal representative is the death of the custodial parent. So, I think a personal representative can pursue the claim. But the non-custodial parent should also be able to pursue a claim as we discussed above. It merits note that if there is a surviving non-custodial parent, regardless of whether the action is brought by an estate or by a guardian, the non-custodial parent must be named. As King explained, “Because we are convinced the legislature intended that only one wrongful death of child action be maintained, it follows that a custodial parent who chooses to bring an action must name the non-custodial parent as a necessary party under Ind. Trial Rule 19(A), despite the fact that [the text of the Child Wrongful Death Statute] does not seem to require it.”

Join us again next time for further discussion of developments in the law.


*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.

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