*1 Darcy ROBINSON, Appellant J.
(Defendant below),
Robert J. WROBLEWSKI Wroblewski, Appellee
Ann below).
(Plaintiffs
No. 02S03-9809-CV-482.
Supreme Court of Indiana.
Dec. 1998. Samek, Larry Barnard,
Richard P. L. Mil- L.L.P., Boxberger Murphy, ler Carson & Wayne, Appellant. Fort Funk, Levenhagen, Norman T. Donald D. Irvin, Hill, Fulwider, McDowell, Alan J. Indianapolis, Funk & Matthews for Amicus Curiae, Lawyers Indiana Defense Associa- tion. Ulmer, Yoder, Buche, Craig
John D. M. Goshen, Ainlay, Buckingham Ulmer & Appellee. Miller, Wernle,
Gregory Ay- H. Ristine & ers, Crawfordsville, Curiae, for Amicus Lawyers Indiana Trial Association. ON PETITION TO TRANSFER SULLIVAN, Justice. Ann
Robert and Wroblewski’s son was They killed in an automobile accident. seek compan- for the loss of his love and using ionship measured the time from until his death the death of his last Robinson, defendant, parent. Darcy ar- gues measuring period. for a shorter hold that Indiana’s Child Death Act1 authorizes the advo- cated the Wroblewskis. case, 34-23-2-1 At the time evant this was found at rel- statute
468 holding in Miller our in in the wake of 1987
Background
(Ind.1987).
In
N.E.2d 7
Mayberry, 506
v.
4, 1994, Brian Wroblewski’s
September
On
Miller,
damages for the loss
sought
in
Darcy Robinson’s
collided with
automobile
affection after the death
collision,
a child’s love and
of
County. As a result
Monroe
age
twenty-
year
We held
at the
of
old son.
died
of their seventeen
Brian Wroblewski
death, Brian was
his
At the time of
two.
rule is the law
pecuniary loss
then that “the
University in
at Indiana
as a student
enrolled
element of
“as an
in Indiana” and serves
Robert and
parents,
Brian’s
Bloomington.
injury or
parent suing
damages for
Wroblewski,
wrongful death
filed a
Ann
such,
at As
a minor child.” Id.
8.
death of
in
seeking,
Superior
Allen
Court
claim in the
child were
damages
the loss of a minor
for
of their son’s
damages for the loss
part,
pecuniary
on which
limited to those losses
“love,
...
[that
comfort and
a value could be
placed.
be
Such
value could
of their lives.”
the rest
they]
[for]
will suffer
from the assistance
determined
from the com-
moved to strike
Robinson
money,
through
sendees
provided
would
damages
request for
the Wroblewskis’
plaint
(citing
Id. at 10
material
or other
benefits.
period from the
using
time
measured
Burns,
328,
I he is parent for the death of his pecuniary only for the entitled to recover statutory provisions at issue sustained, prop- and that the injury he has by the were enacted General case twenty years dependents than without who is less § of the stat- Ind.Code 34-1-1-8. The convenience, or, twenty-three years unchanged. age; we For less than ute remains opinion. in this higher current code location will use the edu in an institution of and is enrolled program.” school or cation or in a vocational Act, purposes Death of the Child 2. For 34-23-2-1(a) (1998). "unmarried individual a "child” is defined as an (2) value for the loss of the is the er measure of companionship; and injury the time child’s services from majority, attained his until he would have pay expenses of: prospects in in connection with his taken (A) hospitalization health care and ne- life, support and maintenance. To less his *3 cessitated the act or added, cases, the may proper be in death; omission that the caused child’s child, care and attention to the expenses of (B) burial; the child’s funeral and necessary injury, by the funeral ex- made (C) expense psychi- the reasonable of services. penses and medical psychological counseling atric and in- Lilly, v. Pennsylvania Co. by surviving parent curred or minor added). (1881) (citations omitted; emphasis sibling the child required is Wallace, 263-64, Ind.App. child; also at See because of the death of the 491(citations omitted). at N.E.2d (D) child, uninsured debts of the in- cluding parent debts for which a summary, there Miller reiterated that child; obligated on behalf of the and pecuniary loss characteristics of the were two (E) the administration of the child’s wrong- the applied it to an action for rule as estate, including attorney’s (1) reasonable amount of ful of a minor child: the fees. damages recoverable was limited to the eco- (2) (f) parents; may Damages
nomic loss sustained be awarded under this respect period loss with period the time over which the economic section to the at of ma- time from the death of the child until: calculated terminated jority. change to (1) We declined invitation the date that the child would have pecuni- either of these characteristics of reached: Miller, ary N.E.2d at 11. loss rule. (20) (A) twenty years age; or changed posi- Legislature (B) (23) has not its twenty-three years age if rule, pecuniary tion on the even was enrolled in an institution knowledge full of this though it had higher education or in a vocational interpretations Court’s of its enactments program; or school or spite and in of the fact efforts surviving the date of the child’s last provide change to for a in the been made death; parent’s first occurs. whichever parents to measure of awarded (g) Damages may be under awarded sub- child. for the loss of minor (e)(2) only respect with section period time from the death of Instead, power Id. at 9. we noted child until the date of the child’s last change to the rule if it “dis- surviving parent’s death. agree[d] with the Court’s constructions its (1998)(emphasis § 34^-23-2-1 add- or there fe[lt] enactments ed). change pecuniary loss [the a need to [was] requirements of based on the needs or rule] period calculate measuring used to society.” Id. at 11. Wrongful under the Child Death (f) (g). in Act are described subsections Miller, month after our decision in One section,” Through phrase the use of the “this General amended Child (f) appears subsection to limit Act, authorizing explicitly Death periods calculating each of the three to recover for the loss of a types damages specified in subsections companionship. The Act as child’s love (e)(3) (e)(1), (e)(2) to the date provides pertinent part in as fol- amended age, child would have reached the relevant or lows: the child’s last until the death of (e)In an to the death of action recover for parent, occurs. whichever first child, plaintiff may recover dam- language (g), through specific in subsection ages: (e)(2),” to appears reference to “subsection
(1)for
services;
to
provide
the loss of the child’s
different
minority”
period equivalent to the
a child’s
damages for the loss of
calculate
of a child’s
for the loss
the death of whereas
companionship: from
love
(a non-pecuniary
the child’s last
love and
until the death of
the child
loss)
Therefore,
“solely
awarded
the issue be-
was intended to be
a child until
determine whether
of time from the death of
this Court is to
fore
surviving parent’s
in
“this
subsection
the child’s last
section”
the date of
reference
Carper
Tuning, No.
delineat-
Accord
pertains to all recoverable
death.” Id.
Act, whether,
96-19-C-D/H,
*1
in the face of the
580693 at
1997 WL
ed
EV
(S.D.Ind. Jan.28, 1997).
(g),
companionship are
of a child’s
period from
using the time
to measured
II
*4
the death of the
of the child to
the death
responded to Mil-
legislature
In
child’s last
by enacting
Bill 2—an amendment
ler
Senate
interpretations
two different
Each of these
in-
Wrongful Death
to the Child
Act—which
by one or more courts.
has been utilized
recovery
damages for the loss
cluded the
of
Conrail, Inc.,
Herriman
companionship. Pub.L.
a child’s love and
(19) year
in a railroad
old who died
nineteen
(now
(1987)
codified at Ind.Code
No. 306
crossing
sought
collision
from
grade
34-23-2-1).
history
§
reviewed
Conrail, Inc., 887
Herriman v.
the railroad.
movement of the Child
of the
(N.D.Ind.1995).
After
F.Supp.
through the
Death Act amendment
General
law,
Indiana ease
the federal dis-
review of
history
Assembly in
and believe that
had not
concluded that Indiana
trict court
helpful to our
certain conclusions
dictates
rule,
mere-
pecuniary loss
but
abandoned the
begin
general
with a
overview
inquiry. We
permit recovery of an addi-
ly amended it to
problem and then turn to a more
of the
of a child’s love
type
tional
—loss
history.
specific
legislative
review
at 1154. The court
companionship. Id.
pecuniary
that the
loss rule
further reasoned
A
temporal
to contain the
in Indiana “continues
throughout
the bill’s
As introduced
engrafted upon
it
previously
limitations
legislature,
through
movement
the 1987
Consequently, dam-
law.” Id. at 1156.
case
provided,
Bill 2
inter
of Senate
SECTION
a child’s love and com-
ages for the loss of
alia,
would be
three new subsections
using
to measured
panionship were held
1 of
34-23-2.
added to section
that for
period
the same
introduced,
contained
As
those subsections
services. Id.
loss of a child’s
provisions:
following
later,
us
years
in the case before
Two
—
(d)
first,
(changed to
The
subsection
Appeals declined
today, the Indiana Court of
(e)
bill), pro-
in the final version of the
Instead, the court held
to follow Herriman.
wrong-
plaintiff in a child
vided that the
parent
to recover dam-
that a
was entitled
damages:
ful death action could recover
of a child’s love and com-
ages for the loss
surviv-
panionship
(1)
services;
until the death of the last
the loss of the child’s
Robinson,
(g) in the period legislation.3 vided (d)(2) damages under would age 1. The maximum a child whose of the child’s death run from the time trigger recovery provisions death would the child’s last surviv- until the death of statute,4 pro- bill as introduced parent. ing were vided recoverable for the 2, 105th No. Ind. General Assem Senate Bill age of a child under (1987) (Nov. 18, 1986printing). bly Judiciary Senate Committee amended the changes made to the important were While age bill to the maximum of covered increase provisions these and other 21; details of children from 18 to the full re- Senate through the General progressed bill as it 18; age the maximum back duced Assembly, of these three sub- the structure Judiciary the maxi- House Committee set until final sections remained same or, college mum age at 18 for children noted, emerged. of the bill As version school, 23; vocational and the full House set And, as men- subsections were re-lettered. or, the maximum at 20 for children supra, the second subsection was tioned school, college or vocational 23. The bill as provide for meas- changed to passed adopted approach, full House’s *5 uring damages under “this section” would i.e., setting the maximum of covered child’s death until run from the time of the or, college children at 20 for children or age. specified have reached a the child would school, vocational 23. third un- the subsection remained expenses parent 2. The which a is enti- such, change in the lan- changed. As the damages tled to recover as under the stat- provided a guage of the second subsection ute .5 The bill as introduced provided measuring period calculating for different (a) damages pay health were recoverable to of and damages for loss love hospitalization expenses necessitat- care and language of the third subsection. than the by the act or omission that ed then, change the inquiry, is whether Our (b) caused the death and funeral and burial inserting final of the bill the “this the version expenses. full the bill Senate amended expression legis- language was an of section” damages to to add to the list of recoverable measuring period that the for lative intent (a) family psychiat- pay expenses reasonable calculating damages of love and com- for loss expenses psychological counseling ric and at- panionship runs from the time of the child’s (b) death, tributable to the child’s uninsured a death until the child would have reached (c) child, of the and and unsecured debts specified age rather than from the time of of the estate. costs of administration child’s until the of the child’s the child’s death amended Judiciary The House Committee inqui- surviving parent. pursue To this last the the bill to delete from list of ry, a more examination of we turn to detailed pay expenses to the word “unse- recoverable history. legislative the bill’s full cured” and the House added meaning include within the of “debts of stages during At various the to child,” parent those debts for which provisions concerning following process, following legislative materials reflect also on several occasions 5. The bill was amended 3. 2, changes where the to refine the entitlement to here: Senate Bill No. 105th discussed joint (1987) (as introduced); did not have deceased child's custody both Assembly Ind. Gen. death. We omit at the time of discussion Journal, (1987); at Senate Indiana appear changes they of these as do not to Journal, 711, 799, 975, 1010 House at Indiana relationship inquiry. any to our (1987). following legislative reflect the 4. The materials having making the effect of 6. We read this as changes discussed here: Senate Bill No. 105th debts—secured and unse- clear that all uninsured (as introduced); Ind. Gen. cured—are recoverable. 61, 399, Journal, (1987); at Indiana Senate Journal, Indiana House at (a) inserted, obligated providing on the child. The both that the measur behalf of bill ing period calculating all of adopted approach, full House for for passed as (i) (ii) services, i.e., damages pay loss loss love and com are recoverable the ex- of (iii) (a) panionship, expenses and run from hospitalization would penses of health care and child’s death first to date of the until the wrongful act or necessitated omission (b) birthday or death, occur of the child’s 20th 23rd that caused the the funeral and surviving parent; (c) the death of the child’s last burial, family psychiatric reasonable and (b) measuring period for calcu expenses psychological counseling attribut- lating damages for (d) loss of love death, able to child’s uninsured debts run date of would from the child, including the debts for which until the child’s death death of the child’s child, obligated parent is on behalf last (e) costs administration of child’s es- tate. An for offset parents’ loss a child’s services for measuring period calculating 3.The expenses reasonable that would have been (a) (b) services, child’s rearing the incurred in child.9 The bill companionship, a child’s love and provided that damages introduced recovera (c) expenses.7 The bill as introduced ble for loss of child’s services would be provided for calcu parents’ expenses reduced reasonable lating damages was set for from rearing that would have been incurred in (a) until, the date of the child’s death for loss Judiciary child. The Senate de Committee services, child’s the first occur of the rearing expenses; leted this offset for child birthday child’s 18th or the death offset; the full restored Senate (b) until, surviving parent; last Judiciary House Committee made the offset companionship, for loss child’s love and child-rearing expenses permissive rather *6 parent. the death of the child’s last mandatory; passed than and the bill the full measuring period calculating damages No for passed House in this fashion. The as bill until expenses for would be inserted final the child-rearing contained no offset for ex Judiciary of the
version
bill. The Senate
penses.
Committee
the bill to set
amended
the meas
uring
calculating damages
for
period
damages
5. A
limitation
for
dollar
on the
a child’s
the
services from
date of the
a
child’s love and
for
companionship.10
birthday
child’s death until the child’s 21st
The bill as introduced
altogether
measuring peri
provided
damages
and to delete
the
recoverable for loss of
calculating damages
od for
companionship
for loss of a
love and
could not
child’s
$35,000.
companionship.
child’s love and
exceed
Judiciary
The effect
The Senate
Com-
latter
altogether any
of this
deletion is not clear.
mittee deleted
limitation on
language
of the bill as introduced was
recoverable for loss of a child’s love
by the full
and companionship.
restored
Senate
remained
The full
amend-
Senate
unchanged until
provide
conference committee.8 In
ed the bill to
recovera-
committee,
conference
for
conflicting
companion-
lan
ble
loss of a child’s love and
$100,000.11
guage
subject
ship
that is
of our inquiry
was
could not exceed
The House
Journal,
61, 399,
(1987);
following legislative
7. The
materials
at
reflect
Indiana Senate
872
2,
Journal,
711, 975,
changes
(1987).
discussed
Bill
(as
here: Senate
No.
105th
at
Indiana House
1010
(1987)
introduced);
Assembly
Ind. Gen.
61, 399,
Journal,
(1987);
Indiana Senate
at
following legislative
materials reflect the
10.
Journal,
711, 975,
(1987).
Indiana House
at
2,
changes discussed here: Senate
105th
Bill No.
introduced);
(1987) (as
Assembly
Ind. Gen.
bill,
8. After the full
House amended
the Sen-
Journal,
61, 399,
(1987);
at
Indiana Senate
ate dissented and a conference committee was
Journal,
975-76,
711-12, 799,
at
Indiana House
Journal,
appointed.
at
Indiana Senate
(1987)
following legislative
containing
provi-
materials
11. An
these
reflect the
amendment
all of
2,
changes
adopted by
discussed
Senate Bill No.
sions
Sen.
here:
105th
offered
Costas was
(as
introduced);
Earlier,
nays.
yeas
Ind. Gen.
vote of 25
to 23
the Senate
any
ing damages for loss of
child’s love and
altogether
Judiciary
deleted
Committee
part
full
of the
or simi-
damages. The
House
was
same
on
limitation
that,
legislative compromise
an inadver-
provide
for
lar
the bill to
amended
1987,
1,1990, damages
May
drafting
May
tent
error.
period
love and
of a child’s
recoverable for loss
conclude that
it was an inadvertent
$100,000,
could not exceed
error;
drafting
did not
The bill as
no limitation thereafter.12
with
bill,
change
aspect
intend to
as
through
provided that
October
passed
reach this conclusion for
introduced. We
for loss of a
damages recoverable
several reasons.
companionship could not ex-
love and
First,
matter, although
general
as
$100,000,
no limitation thereafter.
ceed
with
substantively
amended
in Senate
bill was
foregoing history, we believe
From the
floor,
Committee,
in House
on
Senate
introduced,
bill,
set
clear that the
as
that it is
Committee,
floor,
and on the House
none of
calcu-
forth a different
(with
exception of the
the amendments
a child’s services
lating damages for loss of
supra)
discussed
one
Senate Committee
.in
child’s love and
for loss of the
than that
changed
provisions providing separate
in-
helps
focus our
companionship. This
us
loss of
measuring periods for
whether,
proceeded
the bill
quiry on
companion-
of love and
services and for loss
process, there
evi-
through
changes,
ship. Because there were no such
Assembly meant to
that the General
dence
does not seem to have been
measuring
provisions of
change
compromise in
likely
confer-
candidate
We conclude
the bill as introduced.
ence committee.
there is not.
Second,
despite all of
specifically,
and more
be-
give-and-take
There was extensive
skirmishing
over a limitation on
opponents of ex-
supporters and
tween the
and com-
amount
for loss of love
recovery for the
panded
attempt
any
panionship, there was no
children, the ex-
of covered
child:
limit the
those amendments to
damages, the offset for
penses recoverable as
calculating
damages. This
period for
those
and,
all,
expenses,
most of
child-rearing
subject
our conclusion that the
does
bolsters
compan-
cap
on
for loss of
likely
to have been a
candidate
not seem
give-and-
ionship
play.”
“in
This
were
—all
*7
compromise.13
compromise that
in the
was
take resulted
matter,
Third,
drafting
if the
a technical
question,
legislative intent
final bill. Our
language change
“this section” was intend-
then,
to
itself to whether the confer-
reduces
ed,
to
also have had both
the drafter would
language (replacing the
committee
ence
(d)(1)” (now
immediately following subsection
delete the
“subsection
cross-reference
section”)
(e)(1))
following subsec-
redesignate
the next
arguably
that
with “this
changes were
But neither of those
measuring period for calculat-
tion.14
shortened
Journal,
at
This lan-
by
nays
yeas
House
rejected
and 15
another
Indiana
a vote of 33
guage
in the final version of
Sen. Costas that was identical in
was not retained
amendment
except
respects
limitation on
all
that the
bill.
capped
companionship was
loss of love and
for
$50,000.
argued
measuring
at
that the
13. While it could
really
be-
period only
an issue after it
became
damages cap
expire
following
would
came
amendment contains the
clear
12.The House
being
explaining
purpose
years,
language
of the limitation
the risk of there
no
after several
damages provision:
early
damage cap
in the
on
at all became clear
Judiciary
process
Committee.
the Senate
—in
chapter
purpose
this
to establish a
It is the
recognition
public policy
of the value of
detail,
point
if the
in more
14. To make this
wrongfully
been
killed. The
a child who has
language
change
SECTION 1 of the bill
in the
chapter
temporary
this
for
limit established
(d)(1)” (now (e)(1)) to "this
from "subsection
companionship
the loss of love
intended,
would
the drafter also
section” was
wrongdoers
phase
to
to enable insurers of
redesignated
newly
delete
have had not
to
experience
and is for no other
their
tables
(containing
(g)
purpose.
subsection
stated
Thus,
intended,
statutory provision,
change
construing
a
we
if the
was
made.
entirety,
the statute as an
must consider
drafting er-
be two inadvertent
there would
part being viewed not as an
with each
ie.,
here,
to
the im-
the failures
delete
rors
fragment but with reference to all
isolated
following
and to redes-
mediately
subsection
companion provisions.
effect
the other
To
By
following subsection.
ignate the next
intent,
legislature’s
this Court will con-
change to “this section”
finding
language
ambiguous
an
statute in a manner
strue
error,
minimize the total num-
to be the
we
other
of the enact-
consistent with
sections
ber of eiTors.
ment.
possible explanation for the
We note a
Jay County,
Hinshaw v. Bd. Comm’rs
provided recov-
error. The
as introduced
bill
(internal
(Ind.1993)
cita
611 N.E.2d
ery
damages for the child’s health care
omitted).
examine the statute as a
tions
hospitalization prior to death and for
give
ordinary mean
whole and
common and
expenses. No
funeral and burial
ing
employed.
the words
Matter
Law
to
required
(Ind.1991)
calculate these dam-
rance,
to
(citing
N.E.2d
ages.
Ins.,
But
of the bill added
later versions
Department
Ins. v.
Foremost
of.
Life
(1980))
elements,
at least one of
expense
additional
“[W]hat Herriman, (g) of the Act?” B possible F.Supp. at 1157. He offered two Our conclusion is consistent with two can- explanations. possibility, In the first “sub- statutory ons of construction. (g) Legislature’s section underscores damages pursuant view to subsection statutory provisions are in Where (e)(2) companion- [loss of child’s love and conflict, part ren no statute should be *8 ship] par- must cease with the death of the meaningless should reconciled dered but be In ents no matter who asserts loss.” Id. with the of the statute. v. rest Garvin Chad view, (g) express subsection serves to 499, 512-13, Realty Corp., wick 212 Ind. 9 legislative special intent there is no 268, (Ind.1937); N.E.2d 273-74 Chamness v. measuring period calculating damages in Carter, 317, (Ind.Ct.App. custody 575 N.E.2d 319 the child was in the of a cases where 1991). non-parent guardian.15 Despite guardian companion- age. from loss of love and the fact that the or ship) redesignate following but also subsec- may developed custodian an affectionate (h) (i). child, tion as subsection resulting having bond with the minor in companionship sustained child, lost love upon (g) which can "[O]ne basis subsection be damages cease with the death of the those explained is the situation where child has Thus, surviving (g) parent. un- last subsection placed (perhaps grand been parent with a custodian a Legislature’s derscores the view that sibling) pre or adult with the child then (e)(2) pursuant to subsection must cease with the deceasing subsequently who die be twenty years have attained fore child would
475
(f)
However,
(g)
categorized
general
2-1
can
is reached
be
conclusion
same
(f)
legisla-
specific.
alone. The
subsection
applying
mutually
measur-
exclusive
ture outlined two
calculating
dam-
(f): (1)
in
the date
periods
subsection
able
(cross-
ages
general
in
more
subsection
23;
age 20 or
would have reached
the child
section”)
referencing
than
“this
subsection
the child’s last
or
the date of
(e)(2).
(g), which cross-references subsection
death;
occurs.
parent’s
whichever
first
specific provision,
more
As
latter is the
(f) can be
way
no
that subsection
There is
provision
controls.
measuring period in
provide
special
a
read to
non-parental guardianship situations. Sub-
C
nothing
regard.
in this
(g) adds
section
supra,
times
Herriman
As noted several
Second,
suggested that the lan-
the court
legislature
concluded that
the'
intended to
(g)
emphasize
in subsection
could
guage
limit
for the
recoverable
loss of a child’s
merely that
for the
child’s love and
“only”
limited
companionship were
conclusion,
majority.
In support of this
injury cases.
death eases —not child
to child
Trucking
v.
court relied on Ed Wiersma
Co.
introductory
sentence
Id.
Pfaff,
(Ind.Ct.App.1994),
sible the addition of *10 —that costs, etc., recoverable items chiatric