Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
JOHN P. YOUNG ROBERT G. ZEIGLER Young & Young BOBBY J. AVERY-SEAGRAVE Indianapolis, Indiana Zeigler Cohen & Koch Indianapolis, Indiana
FILED IN THE Jan 26 2012, 9:22 am
COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
RUTH DISHMAN, Personal Representative of the ) Estate of Julie A. Etchison, Deceased, ) ) Appellant-Plaintiff, ) ) vs. ) No. 48A02-1105-PL-467 ) COMMUNITY HOSPITALS OF INDIANA, INC., ) MEDCHECK ANDERSON, TROY ) ABBOTT, M.D., and STEPHEN ROBERTSON, ) Acting Commissioner of the Indiana Department ) of Insurance, ) ) Appellees-Defendants. )
APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-1012-PL-4041
January 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge Ruth Dishman, as personal representative of the Estate of Julie A. Etchison (the
Estate), appeals a grant of partial summary judgment in favor of Community Hospitals of
Indiana, Inc., Medcheck Anderson, Dr. Troy Abbott, (collectively, the Medical Defendants)
and Stephen Robertson, Acting Commissioner of the Indiana Department of Insurance, in
conjunction with a proposed complaint for medical malpractice filed on behalf of the Estate.
The Estate presents the following restated issue for review: Was Arianna Adams a
“dependent next-of-kin” of Etchison within the meaning of Indiana’s General Wrongful
Death Statute (GWDS), i.e., Ind. Code Ann. § 34-23-1-1 (West, Westlaw current through end
of 2011 1st Regular Sess.)?
We affirm.
The relevant facts are undisputed. Etchison was born in May 1956. She was married
for a short time at some point during her twenties. Except for the duration of that marriage,
perhaps two years, Etchison always lived in her parents’ home. Etchison’s father died in
1994 and Etchison thereafter lived in the home with her mother, Julia Reismiller. Chris
Adams is Reismiller’s grandson and Etchison’s nephew. Adams, who was twenty-six or
twenty-seven years old at the time this appeal was filed, fathered a child with Chastity
Peyton. The two were married when the child, Arianna Adams, was born in August 2006.
The couple separated, however, and sometime around the beginning of October 2006, Adams
and Arianna moved into Reismiller’s home. Eventually, Adams and Peyton divorced and
Adams was awarded custody of Arianna. They continued to live in Reismiller’s home.
Reismiller died in September 2007, after which Etchison, Adams, and Arianna lived in the
home.
2 Adams worked for Sparkle Cleaning from August 22, 2003 until he quit on October
31, 2008. He quit because he “had nobody to really help [him] take care of” Arianna.
Appellant’s Appendix at 30. Etchison died on July 24, 2009. During portions of the time
between when Adams quit his employment and Etchison died, Adams received food stamps.
On May 6, 2010, the Estate filed a proposed complaint for damages alleging that
Etchison’s death was caused by negligent medical treatment rendered by the Medical
Defendants. On December 15, 2010, the Medical Defendants filed a “Motion For
Preliminary Determination of Law and for Partial Summary Judgment on the Issue of
Damages Limited Under I.C. 34-23-1-2, on Behalf of Defendants, Community Hospitals of
Indiana, Medcheck Anderson, and Troy Abbott, MD.” Id. at 6. In their motion, the Medical
Defendants argued that Arianna was not a dependent next-of-kin of Etchison’s under the
GWDS and therefore that the Estate is limited to recovery of damages for only medical,
hospital, funeral, and burial expenses. The trial court agreed and on May 4, 2011, entered an
order granting the Medical Defendants’ motion for partial summary judgment.
The Estate contends the trial court erred in granting partial summary judgment in
favor of the Medical Defendants. We review a summary judgment order de novo. Neu v.
Gibson, 928 N.E.2d 556 (Ind. 2010). Considering only the facts supported by evidence
designated to the trial court by the parties, we must determine whether there is a “genuine
issue as to any material fact” and whether “the moving party is entitled to a judgment as a
matter of law.” Ind. Trial Rule 56(C); see also Kovach v. Caligor Midwest, 913 N.E.2d 193
(Ind. 2009). We will accept as true those facts alleged by the nonmoving party. Sees v. Bank
One, Indiana, N.A., 839 N.E.2d 154 (Ind. 2005). Moreover, we construe all factual
3 inferences in favor of the nonmoving party and resolve all doubts as to the existence of a
material issue against the moving party. Kovach v. Caligor Midwest, 913 N.E.2d 193. The
appellant bears the burden of demonstrating that the grant of summary judgment was
erroneous. W.S.K. v. M.H.S.B., 922 N.E.2d 671 (Ind. Ct. App. 2010). Finally,
[a] grant of summary judgment may be affirmed upon any theory supported by the designated evidence. While the trial court here entered specific findings of fact and conclusions of law in its order granting summary judgment for the appellees, such findings and conclusions are not required and, while they offer valuable insight into the rationale for the judgment and facilitate our review, we are not limited to reviewing the trial court’s reasons for granting or denying summary judgment.
Gilbert v. Loogootee Realty, LLC, 928 N.E.2d 625, 629 (Ind. Ct. App. 2010), trans. denied,
(quoting Van Kirk v. Miller, 869 N.E.2d 534, 539-40 (Ind. Ct. App. 2007) (citations omitted),
trans. denied).
The question in this case is whether Arianna is a “dependent next-of-kin” within the
meaning of the GWDS. The parties agree that this question must be answered by application
of a two-part test, i.e., the Estate must show “(1) a need or necessity of support on the part of
the alleged dependent; and (2) actual contribution to such support by the deceased.” Terry v.
Stephens, 921 N.E.2d 516, 520 (Ind. Ct. App. 2010) trans. denied. For purposes of our
analysis in this case, it appears that the Medical Defendants do not challenge the Estate’s
claim based upon the second element. That is, they do not dispute that Etchison actually
contributed to Arianna’s support while Adams and Arianna lived in Etchison’s home.
Rather, the basis of the Medical Defendants’ motion centers upon the first element and the
contention that Etchison’s support of Arianna was not based upon need or necessity.
We note that although the evidence of record indicates Arianna’s mother was
4 unreliable with respect to the payment of monetary support or the provision of nonmonetary
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
JOHN P. YOUNG ROBERT G. ZEIGLER Young & Young BOBBY J. AVERY-SEAGRAVE Indianapolis, Indiana Zeigler Cohen & Koch Indianapolis, Indiana
FILED IN THE Jan 26 2012, 9:22 am
COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
RUTH DISHMAN, Personal Representative of the ) Estate of Julie A. Etchison, Deceased, ) ) Appellant-Plaintiff, ) ) vs. ) No. 48A02-1105-PL-467 ) COMMUNITY HOSPITALS OF INDIANA, INC., ) MEDCHECK ANDERSON, TROY ) ABBOTT, M.D., and STEPHEN ROBERTSON, ) Acting Commissioner of the Indiana Department ) of Insurance, ) ) Appellees-Defendants. )
APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-1012-PL-4041
January 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge Ruth Dishman, as personal representative of the Estate of Julie A. Etchison (the
Estate), appeals a grant of partial summary judgment in favor of Community Hospitals of
Indiana, Inc., Medcheck Anderson, Dr. Troy Abbott, (collectively, the Medical Defendants)
and Stephen Robertson, Acting Commissioner of the Indiana Department of Insurance, in
conjunction with a proposed complaint for medical malpractice filed on behalf of the Estate.
The Estate presents the following restated issue for review: Was Arianna Adams a
“dependent next-of-kin” of Etchison within the meaning of Indiana’s General Wrongful
Death Statute (GWDS), i.e., Ind. Code Ann. § 34-23-1-1 (West, Westlaw current through end
of 2011 1st Regular Sess.)?
We affirm.
The relevant facts are undisputed. Etchison was born in May 1956. She was married
for a short time at some point during her twenties. Except for the duration of that marriage,
perhaps two years, Etchison always lived in her parents’ home. Etchison’s father died in
1994 and Etchison thereafter lived in the home with her mother, Julia Reismiller. Chris
Adams is Reismiller’s grandson and Etchison’s nephew. Adams, who was twenty-six or
twenty-seven years old at the time this appeal was filed, fathered a child with Chastity
Peyton. The two were married when the child, Arianna Adams, was born in August 2006.
The couple separated, however, and sometime around the beginning of October 2006, Adams
and Arianna moved into Reismiller’s home. Eventually, Adams and Peyton divorced and
Adams was awarded custody of Arianna. They continued to live in Reismiller’s home.
Reismiller died in September 2007, after which Etchison, Adams, and Arianna lived in the
home.
2 Adams worked for Sparkle Cleaning from August 22, 2003 until he quit on October
31, 2008. He quit because he “had nobody to really help [him] take care of” Arianna.
Appellant’s Appendix at 30. Etchison died on July 24, 2009. During portions of the time
between when Adams quit his employment and Etchison died, Adams received food stamps.
On May 6, 2010, the Estate filed a proposed complaint for damages alleging that
Etchison’s death was caused by negligent medical treatment rendered by the Medical
Defendants. On December 15, 2010, the Medical Defendants filed a “Motion For
Preliminary Determination of Law and for Partial Summary Judgment on the Issue of
Damages Limited Under I.C. 34-23-1-2, on Behalf of Defendants, Community Hospitals of
Indiana, Medcheck Anderson, and Troy Abbott, MD.” Id. at 6. In their motion, the Medical
Defendants argued that Arianna was not a dependent next-of-kin of Etchison’s under the
GWDS and therefore that the Estate is limited to recovery of damages for only medical,
hospital, funeral, and burial expenses. The trial court agreed and on May 4, 2011, entered an
order granting the Medical Defendants’ motion for partial summary judgment.
The Estate contends the trial court erred in granting partial summary judgment in
favor of the Medical Defendants. We review a summary judgment order de novo. Neu v.
Gibson, 928 N.E.2d 556 (Ind. 2010). Considering only the facts supported by evidence
designated to the trial court by the parties, we must determine whether there is a “genuine
issue as to any material fact” and whether “the moving party is entitled to a judgment as a
matter of law.” Ind. Trial Rule 56(C); see also Kovach v. Caligor Midwest, 913 N.E.2d 193
(Ind. 2009). We will accept as true those facts alleged by the nonmoving party. Sees v. Bank
One, Indiana, N.A., 839 N.E.2d 154 (Ind. 2005). Moreover, we construe all factual
3 inferences in favor of the nonmoving party and resolve all doubts as to the existence of a
material issue against the moving party. Kovach v. Caligor Midwest, 913 N.E.2d 193. The
appellant bears the burden of demonstrating that the grant of summary judgment was
erroneous. W.S.K. v. M.H.S.B., 922 N.E.2d 671 (Ind. Ct. App. 2010). Finally,
[a] grant of summary judgment may be affirmed upon any theory supported by the designated evidence. While the trial court here entered specific findings of fact and conclusions of law in its order granting summary judgment for the appellees, such findings and conclusions are not required and, while they offer valuable insight into the rationale for the judgment and facilitate our review, we are not limited to reviewing the trial court’s reasons for granting or denying summary judgment.
Gilbert v. Loogootee Realty, LLC, 928 N.E.2d 625, 629 (Ind. Ct. App. 2010), trans. denied,
(quoting Van Kirk v. Miller, 869 N.E.2d 534, 539-40 (Ind. Ct. App. 2007) (citations omitted),
trans. denied).
The question in this case is whether Arianna is a “dependent next-of-kin” within the
meaning of the GWDS. The parties agree that this question must be answered by application
of a two-part test, i.e., the Estate must show “(1) a need or necessity of support on the part of
the alleged dependent; and (2) actual contribution to such support by the deceased.” Terry v.
Stephens, 921 N.E.2d 516, 520 (Ind. Ct. App. 2010) trans. denied. For purposes of our
analysis in this case, it appears that the Medical Defendants do not challenge the Estate’s
claim based upon the second element. That is, they do not dispute that Etchison actually
contributed to Arianna’s support while Adams and Arianna lived in Etchison’s home.
Rather, the basis of the Medical Defendants’ motion centers upon the first element and the
contention that Etchison’s support of Arianna was not based upon need or necessity.
We note that although the evidence of record indicates Arianna’s mother was
4 unreliable with respect to the payment of monetary support or the provision of nonmonetary
support, Adams worked until Arianna was approximately two years old. He voluntarily left
his employment, evidently to care for Arianna. It appears that this option was open to him
primarily because he was able to continue living in Etchison’s home and thereby minimize
his living expenses. We can find no indication of record that Adams was disabled or for
some other reason unable to work. Indeed, Adams admitted that during the relevant period of
time, i.e., October 2008 until Etchison’s death in July 2009, he looked for work, albeit
unsuccessfully. It was fortuitous for Adams that he was able to stay with relatives during that
period of time, as he coped with the responsibilities of providing and caring for his young
daughter. This does not, however, transform Etchison’s commendable generosity toward her
nephew and his daughter into a legally cognizable expectation of support from her on
Arianna’s part.
We understand the GWDS does not require that the decedent must have been under a
legal obligation to support the next of kin in order to establish dependency for purposes of its
provisions. See Estate of Sears ex rel. Sears v. Griffin, 771 N.E.2d 1136 (Ind. 2002). There
is no doubt that Arianna “depended” on Etchison, as she had previously depended upon
Dishman,1 in the everyday sense of the word, but it is the legal definition that matters here.
See id. As our Supreme Court has noted, “Services must go beyond merely helping other
1 The designated evidence reveals that for the first eight months after Adams and Peyton separated, a time during which Adams lived with Etchison, Adams signed over to Dishman temporary legal custody of Arianna. Like Etchison, Dishman was also Adams’s aunt. Adams “got [Arianna] back” from Dishman in October 2008. Appellant’s Appendix at 31. After that, Dishman was “a frequent visitor” at Etchison’s house. Id. at 35. She occasionally watched Arianna for Adams, usually taking the child back to her (Dishman’s) house on those occasions.
5 family members, even those who have relied on that assistance.” Id. at 1139. They must also
“be more than just a service or benefit to which the claimed dependent had become
accustomed.” Id.
In the instant case, Etchison helped Adams and Arianna during a time of need by
permitting them to stay in her home while he was temporarily unemployed and looking for a
job. It appears this arrangement was precipitated not so much by necessity as by
convenience. The opportunity to live in Etchison’s home afforded Adams the freedom to
quit his job to look for one that presumably paid better. Moreover, we must not lose sight of
the fact that in this situation, Arianna was Adams’s dependent next of kin and it was his
responsibility, both moral and legal, to support her. We understand that Adams’s needs at
the time were real and pressing, and that Etchison helped him in his time of need. But while
Arianna’s dependency upon Adams was total and long-term, Adams’s need for support from
Etchison was temporary and not a function of the sort of dependency contemplated in the
GWDS, either with respect to Adams or Arianna. Finally, we note with interest that less than
two years after Etchison’s death, Adams had married Sara Neal, secured employment, and he
and his family, including Arianna, were living independently without assistance from family
members.
In summary, the facts of this case failed to establish dependency for purposes of the
GWDS based upon financial support and services provided by Etchison that Adams was
capable of providing, and indeed has been providing since Etchison’s death.
Judgment affirmed.
RILEY, J., and MATHIAS, J., concur.