Showley v. Kelsey

991 N.E.2d 1017, 2013 WL 3834407, 2013 Ind. App. LEXIS 356

• Court: Indiana Court of Appeals
• Decided: July 25, 2013
• Docket: No. 09A04-1301-ES-22
• Status: Published

Opinions

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Respondent, Eddie G. Show-ley, as Executor of the Estate of Phillip J. Showley (Showley), appeals the trial court’s Order, distributing the wrongful death proceeds to Appellee-Petitioner, Tracey Kelsey (Kelsey), Individually and as Successor Personal Representative of the Estate of Sonya Sue Showley.

We affirm.

ISSUE

Showley raises one issue on appeal, which we restate as follows: Whether the trial court abused its discretion when it distributed the wrongful death proceeds pursuant to the laws of the State of Rhode Island.

FACTS AND PROCEDURAL HISTORY

Sonya Sue Showley (Sonya), domiciled in Indiana, died intestate' on May 26, 2006, due to a defective hernia patch. At the time of her death, she was married to Phillip Showley (Phillip). To pursue an action for the hernia patch’s improper design and manufacture, Phillip sought to be appointed personal representative of Sonya’s estate. To that end, he filed a petition for issuance of letters with the trial court on April 25, 2008, listing Tracey Kelsey (Kelsey) as sole heir of Sonya’s estate.¹ Kelsey is Sonya’s adult daughter, she is not Phillip’s daughter. On April 28, 2008, Phillip was appointed as administrator of Sonya’s estate. As administrator, Phillip filed a tort claim against Davol Inc. and C.R. Bard, Inc. in Rhode Island, instituting, in pertinent part, an action for Sonya’s wrongful death.

On August 7, 2011, while the tort claim action was pending in Rhode Island, Phillip died. On August 15, 2011, as Sonya’s sole remaining heir, Kelsey filed a petition for appointment of successor personal representative of Sonya’s estate, which was granted by the trial court on August 22, 2011. On November 8, 2011, Kelsey, as administrator of Sonya’s estate, accepted a gross settlement offer of $292,500 for the Rhode Island tort claim, which was classified as a wrongful death entitlement.

On June 7, 2012, Kelsey filed her personal representative’s intermediate accounting and petition for partial distribution. In this petition, Kelsey proposed to apply the Rhode Island statutory scheme for distribution of the wrongful death proceeds. Application of the Rhode Island statute would award these proceeds to Kelsey, as Sonya’s only surviving beneficiary. On June 27, 2012, Phillip’s estate objected to the petition for partial distribution. Showley, Phillip’s son and personal representative of Phillip’s estate, argued that Indiana law should be applied to the distribution and as such, all proceeds should be awarded to Phillip’s estate. Showley is not Sonya’s son; Phillip and Sonya did not have children together. On July 11, 2012, the trial court conducted a hearing on Kelsey’s petition. On October 2, 2012, the trial court issued its Order, distributing the wrongful death proceeds pursuant to the laws of the State of Rhode Island and awarding the settlement proceeds to Kelsey, as Sonya’s only surviving beneficiary.

On November 1, 2012, Showley filed a motion to correct error, which was denied by the trial court without a hearing.

Showley now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Showley contends that the trial court erred when it approved Kelsey’s petition for partial distribution and awarded her the wrongful death settlement as the sole surviving beneficiary of Sonya’s estate pursuant to the laws of Rhode Island. Showley maintains that the wrongful death proceeds should have been distributed pursuant to Ind.Code § 34-28-1-1 and thus, Phillip’s estate would have been the sole beneficiary.

This case comes before us as an appeal from a denial of a motion to correct error. A trial court has discretion to grant or deny a motion to correct error and we reverse its decision only for an abuse of that discretion. Hawkins v. Cannon, 826 N.E.2d 658, 662 (Ind.Ct.App.2005), trans. denied. An abuse of discretion occurs when the trial court’s decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id.

Properly characterized, the issue before us is whether the trial court abused its discretion in applying Rhode Island law to the distribution of the wrongful death proceeds when the decedent and all heirs are residents of Indiana and the injury, giving rise to the wrongful death settlement, occurred in Indiana but suit was filed in Rhode Island. We analyzed a similar question in Matter of Estate of Bruck, 632 N.E.2d 745 (Ind.Ct.App.1994), in which we approved the distribution of wrongful death proceeds in accordance with Ohio law.

In Brack, two separate estates were opened in Indiana for spouses Derek and Michelle who had died intestate after they were killed in an accident in Ohio. Id. at 746. Michelle survived Derek for approximately ten to forty minutes. Id. Analyzing the issue of determining the law to govern a wrongful death distribution as one of first impression, we first turned to the traditional lex loci delicti — the law of the place where the injury occurred. Id. at 747. Recognizing the modern trend of abandoning the lex loci delicti in favor of the significant relationship test, we noted that “[i]n this case, the most relevant factor is the unique legal status of the wrongful death proceeds.” Id. at 748. We acknowledged that pursuant to Indiana’s wrongful death statutes, no award would have been made as Derek had not left a surviving spouse or dependent children; whereas Ohio law permits not only recovery for survivors other than dependents and spouses, but also permits an equitable distribution of the damages. Id. Another distinction focused on the fact that the wrongful death proceeds may not become part of the estate and pass through intestate distribution in Indiana. Id. As such, we concluded that

Because Indiana’s wrongful death statute does not contemplate the damages awarded in the present case, and because wrongful death proceeds may not enter the decedent’s estate, the present case is best treated as outside the ambit of our statutory scheme for the distribution of wrongful death proceeds. No mechanism for the distribution of these damages exists in Indiana.

[I]t may be taken as thoroughly established that the law of the forum will govern if the question for determination involves the remedy or procedure, except where the remedy prescribed by the foreign law which is the basis of the right sought to be enforced is so inseparable therefrom that it must also be enforced in order to preserve the integrity of the substantive right.

Here, the distribution of the recovery is inseparable from the recovery in that only under Ohio law can the distribution fulfill the essential purpose of the damages, which is to benefit the immediate survivors regardless of dependency.

Id. at 748^49 (quoting 15A C.J.S. Conflict of Laws § 9).

Likewise, here, Phillip, as initial administrator of Sonya’s estate, filed a suit for wrongful death based on the laws of Rhode Island. In his complaint, Phillip requested to be awarded punitive damages for Sonya’s wrongful death. Pursuant to Rhode Island, punitive damages are permitted under the wrongful death statute, whereas this award cannot be made under Indiana law. Compare R.I. Gen. Law § 10-7-7.1 with I.C. § 34-23-1-1. Under Indiana’s wrongful death statute, when the decedent leaves no surviving spouse, dependent children, or dependent next of kin, only medical, funeral, and administrative expenses may be awarded; while under Rhode Island statute a wrongful death action may be brought for the benefit of survivors other than dependents and spouses and provides for a minimum recovery of $250,000. Compare I.C. § 34-23-1-1 with R.I. Gen. Law § 10-7-2.

As in this situation a recovery under the Indiana wrongful death statute would have been doubtful, this case falls into a similar legal lacuna as Bruch Because a recovery only exists under the law of Rhode Island, its distribution cannot be separated and must be enforced in accordance with Rhode Island statute in order to preserve the integrity of the underlying substantive right.

In support of his argument that Indiana law should be applied, Showley focuses on Bemenderfer v. Williams, 745 N.E.2d 212 (Ind.2001)' where bur supreme court held that the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages. In other words, Showley maintains that even though Phillip survived Sonya but died prior to the settlement of her wrongful death, Phillip’s estate is the sole beneficiary of -the proceeds. However, by falling exclusively within Indiana’s jurisdiction, Bemenderfer does not provide us with guidance to resolve the threshold procedural choice of law issue we are faced with here as the instant situation was derived from a cause instituted in Rhode Island. Therefore, we find Bemenderfer inapplicable to the facts before us.²

In sum, based on the unique facts of the case, we conclude that the trial court properly applied the law and thus, did not abuse its discretion by applying Rhode Island statutory law to the distribution of the wrongful death settlement.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly ordered the wrongful death proceeds to be distributed pursuant to the laws of the' State of Rhode Island.

Affirmed.

BRADFORD, J., concurs. BROWN, J., dissents with separate opinion.

1 . On October 12, 2011, Phillip’s estate filed a petition to rectify the omission in the petition for issuance of letters requesting the trial court to add Phillip as heir of Sonya’s estate.

2 . For the first time in his reply brief, Showley argues that even if Rhode Island statutory law is applicable to the distribution of the wrongful death proceeds, Phillip’s estate is entitled to receive half of the amount recovered based on R.I. Gen. Law § 10-7-2 which provides that "of the amount recovered in every action under this chapter one-half shall go to the husband or widow, and one-half shall go to the children of the deceased[.]” However, it is well settled that grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in the reply brief, they are waived. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005).

Nevertheless, waiver notwithstanding, Showley's argument does not prevail. In Walsh v. Bressette, 51 R.I. 354, 155 A. 1, 2 (1931), the supreme court held that ”[i]n our opinion the class which is to participate in the recovery is closed, and the beneficiaries determined, not when the death occurs, but when judgment is entered.... It follows that the right of [deceased widow] to share to the extent of one-half in the amount recovered terminated with her death and vested in such of the children who are living when judgment is entered.”