 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Horn v. Hendrickson3/29/2005
E.2d at 203: At common law, a person killed by another's tortious acts had no right to recover damages. The victim's dependents or other heirs therefore had no recognized cause of action, either. This inequity gave rise to wrongful death statutes, first in England in 1846, and soon thereafter in every United States jurisdiction. Indiana's wrongful death statutes are found at Indiana Code § 34-23-1-1 (general wrongful death statute), § 34-23-1-2 (death of adult persons), and § 34-23-2-1 (injury or death of children).
(Citation omitted). Before it was recodified, the child wrongful death statute was found at Indiana Code Section 34-1-1-8. For many years prior to 1987, the statute provided in relevant part:
The father and mother jointly, or either of them by naming the other parent as a co-defendant to answer as to his or her interest, or in case of divorce or dissolution of marriage the person to whom the custody of the child was awarded, may maintain an action for the injury or death of a child[.]
But that version of the statute did not define the term "child."
In Britt v. Sears, 150 Ind. App. 487, 277 N.E.2d 20, 21 (1971), this court addressed an issue of first impression, namely, whether the father of "a full term healthy male capable of independent life" but was stillborn as a result of a fetal injury that occurred when the mother was nine months and one week pregnant could maintain a wrongful death action under Section 34-1-1-8. Acknowledging that the applicable statute did not define the term "child," this court held "that `a full term healthy male capable of independent life' with which its mother, at the time of its death in her womb, `was then nine months and one week pregnant' is a `child' within the meaning of the statute[.]" Id. at 27. Thus, under our 1971 decision in Britt, parents could bring a wrongful death action against a tortfeasor for causing the death of their unborn child capable of independent life.
Until 1987, Indiana had followed the pecuniary loss rule, which provided that damages for the loss of love and affection of a child were not compensable in an action for the wrongful death of a minor child. In Miller, 506 N.E.2d at 8, our supreme court reaffirmed that "the pecuniary loss rule the law in Indiana." As we have noted, Chief Justice Shepard wrote a separate opinion in Miller in which he agreed that the pecuniary loss rule applied and that it "has been the long- standing interpretation given" to Section 34-1-1-8, but suggested that it would not be inappropriate for the court to revisit its long-standing interpretation of Section 34-1-1-8. Id. at 12 (Shepard, C.J., concurring in result).
Only one month after the Miller opinion, the legislature approved Public Law 306-1987, which significantly amended Section 34-1-1-8. The 1987 amendments were important for two reasons: (1) the legislature included a definition of "child" in the statute (which is the same definition of "child" as in the current statute), and (2) the legislature expanded the damages recoverable under the statute to include damages for the loss of the child's love and companionship. It is clear that the legislature passed the 1987 amendments primarily to expand the type of damages recoverable under the statute. But the question presented in Bolin was what the legislature intended when it defined "child" under the statute.
As our supreme court observed in Bolin, 764 N.E.2d at 207, child wrongful death claims are "entirely a creature of statute." And " ecause statute is in derogation of the common law," the court construed it strictly against the expansion of liability. Id. However, this court's decision in Britt was still good law in 1
Page 1 2 3 4 5 6 7 8 9 10 11 Indiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|