Estate of Miller v. City of Hammond

691 N.E.2d 1310, 1998 Ind. App. LEXIS 128, 1998 WL 87381
CourtIndiana Court of Appeals
DecidedMarch 3, 1998
Docket45A03-9707-CV-242
StatusPublished
Cited by19 cases

This text of 691 N.E.2d 1310 (Estate of Miller v. City of Hammond) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Miller v. City of Hammond, 691 N.E.2d 1310, 1998 Ind. App. LEXIS 128, 1998 WL 87381 (Ind. Ct. App. 1998).

Opinion

OPINION

GARRARD, Judge.

STATEMENT OF THE CASE

The Estate of Michael Miller, deceased, Harry Miller, and Linda Miller (collectively the “Millers”) appeal from the trial court’s grant of summary judgment in favor of the City of Hammond, the City of Hammond Emergency Medical Technicians, and Mitchell Marks (collectively the “City”), on the Millers’ wrongful death claim for compensatory damages against the City. We affirm.

ISSUE

Whether the deceased’s parents are “dependent next of kin” within the meaning of Indiana’s Wrongful Death Statute, Indiana Code § 34-1-1-2.

FACTS AND PROCEDURAL HISTORY

Michael Miller, the decedent, died at age 23 after suffering a severe electric shock while welding on a roof in Hammond. Michael was survived by his parents, the Millers. At the time of his death, Michael was a full-time student at Indiana Vocational Technical College 1 and resided at home with his parents. Also at the time of his death, Michael provided his services to two family businesses known as Triple M Welding and Fabricating and Triple M Supply.

The Millers brought a wrongful death action against the City and alleged that the City negligently failed to render emergency medical care to Michael and, as a result of such failure, Michael died. Following a motion for summary judgment filed by the Millers on the issue of liability, the trial court granted summary judgment in the Millers’ favor, leaving the extent of the Millers’ damages as the only remaining issue.

On September 10, 1996, the City filed its motion for summary judgment and alleged that the Millers were not “dependent next of kin” within the meaning of Indiana Code § 34-1-1-2. Thus, the City contended, the Millers were not entitled to damages beyond reasonable medical, hospital, funeral and burial expenses, and the costs and expenses of the administration of Michael’s estate. Following a hearing, the trial court granted the City’s motion for summary judgment. This appeal ensued.

DISCUSSION AND DECISION Standard of Review

When reviewing a motion for summary judgment, we apply the same standard as the trial court. Henshilwood v. Hendricks County, 653 N.E.2d 1062, 1065 (Ind.Ct.App.1995), trcms. denied. We resolve any doubt as to any fact, or inference to be drawn therefrom, in favor of the. party opposing summary judgment. Id. Summary judgment should be granted only when the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). On appeal, we must determine whether there is a genuine issue of material fact and whether the law has been correctly applied by the trial court. City of Elkhart v. Agenda: Open Government, 683 N.E.2d 622, 625 (Ind.Ct.App.1997). The party appealing the grant of summary judgment has the burden of persuading the court on appeal that the trial court’s ruling was improper. Jordan v. Deery, 609 N.E.2d 1104, 1107 (Ind.1993). We will affirm the grant of summary judgment on any theory or basis found in the evidentiary matter designated to the trial court. Trout v. Buie, 653 N.E.2d 1002, 1005 (Ind.Ct.App.1995), trans. denied.

Dependent Next of Kin

Indiana’s wrongful death statute, Indiana . Code § 34-1-1-2, provides in relevant part;

When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years, and the damages shall be in such an amount as may be determined by the court or jury, including, but not limited to, *1312 reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission. That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedent’s estate for the payment thereof. The remainder of the damages, if any, shall subject to the provisions of this article, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased.

(emphasis added). Actions for wrongful death are purely statutory as, at common law, there was no liability in tort for killing another because actions for personal injury did not survive the death of the injured party. Robinson v. Wroblewski, 679 N.E.2d 1348, 1350 (Ind.Ct.App.1997). Because the cause of action is in derogation of the common law, the statute creating the cause must be strictly construed, permitting recovery of only those damages specifically prescribed. Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind.Ct.App.1994), opinion adopted by 678 N.E.2d 110 (Ind.1997).

The issue in the instant ease is whether the Millers qualify as “dependent next of kin” within the meaning of the wrongful death statute and, thus, are entitled to damages for their pecuniary loss suffered as a result of Michael’s death. As we recently noted in Wolf v. Boren, 685 N.E.2d 86 (Ind.Ct.App.1997), trans. denied, our supreme court has set a standard for dependency within the meaning of the wrongful death statute stating that “proof of dependency must show a need or necessity of support on the part of the person alleged to be dependent ... coupled with the contribution to such support by the deceased.” Id. at 88 (quoting New York Central Railroad Co. v. Johnson, 234 Ind. 457, 127 N.E.2d 603, 607 (1955)); see also Roger v. Reid, 417 N.E.2d 1142, 1145 (Ind.Ct.App.1981). In other words, “dependency must be actual, amounting to a necessitous want on the part of the beneficiary and a recognition of that necessity on the part of the decedent, an actual dependence coupled with a reasonable expectation of support or with some reasonable claim to support from the decedent.” Kirkpatrick v. Bowyer, 131 Ind.App. 86, 169 N.E.2d 409, 412 (1960) (quoting 25 C.J.S. Death § 33, p. 1108).

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Cite This Page — Counsel Stack

Bluebook (online)
691 N.E.2d 1310, 1998 Ind. App. LEXIS 128, 1998 WL 87381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-miller-v-city-of-hammond-indctapp-1998.