DICKSON, J.
The Wrongful Death Act contains no provisions expressly applicable to the distribution of proceeds from settlements before adjudication of the amount of damages. The Act directs that, in a wrongful death action, “the damages shall be in such an amount as may be determined by the court or jury.” Ind. Code § 34-23-1-1. Its directive regarding payment of “reasonable medical, hospital, funeral and burial expense” applies only to “[t]hat part of the damages,” which refers to the damages “determined by the court or jury.” Id. Such damages thus must be understood in the context of adjudicated damages. Personal injury damage claims or actions, including those for wrongful death, are commonly resolved by settlement agreements before the amount of actual damages is determined by a court or jury. Such settlements can be motivated by a wide variety of considerations such as disputed liability, limited available insurance proceeds or collectible assets, avoidance of litigation expenses, special needs for prompt access to settlement proceeds, etc. It is not uncommon for claims or lawsuits occasionally to be compromised for amounts substantially less than the actual medical, hospital, funeral, and burial expenses incurred by a claimant or plaintiff—particularly in cases where there may be a remote likelihood of liability. Pre-trial settlements are usually, as here, opaque with respect to the proportion of medical, hospital, funeral, and burial expenses in relation to the total recovery. To impose upon all pre-trial wrongful death settlements a requirement that the net proceeds must first be allocated to medical, hospital, funeral, and burial expenses before distribution for other damages could frequently, as here, be inequitable and create an undesired counter-incentive to seek settlement. In light of these factors, we decline to construe expansively the Wrongful Death Act so as to impose upon compromise settlements made before an adjudication of total damages a requirement that resulting proceeds first be used to fully repay the medical, hospital, funeral, and burial expenses.
We do not agree, however, with the widow’s contention that none of the wrongful death settlement proceeds can be paid to the Estate for the funeral and burial expenses. It is quite apparent from the language of the Act that, in creating a statutory cause of action for wrongful death, the legislature intended particular attention to the payment of medical, hospital, funeral, and burial expenses. To extend this legislative objective to pre-trial settlements, a proportional allocation appears most equitable. To guide the distribution of pre-adjudication settlements in wrongful death cases in a manner consistent with the statutory scheme for distribution of proceeds when damages are adjudicated, we exercise our common law supervisory authority.
We hold that, to resolve such disputes as presented in this case, a court should direct payment from the pre-trial wrongful death settlement that part of the medical, hospital, funeral, and burial expenses that corresponds to the ratio of the total of such expenses to the estimated total damages sustained.[1] We understand that in such disputes a court’s allocation of a pre-trial wrongful death settlement may require that the court receive evidence from the parties to enable it to ascertain the approximate total damages and thus determine a proportionate equitable allocation.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
[1] For the purpose of this calculation, and because the objective is to apportion fairly small pre-trial settlements that likely already reflect improbable liability, comparative fault, collectability, or other similar factors, the “estimated total damages sustained” are those that would be assessed under the Act from all sources, but without diminution for comparative fault. The Wrongful Death Act specifies:
[T]he damages shall be in such an amount as may be determined by the court or jury, including, but not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission.
Ind. Code § 34-23-1-1. Damages for wrongful death may include “such a sum as will compensate the persons on whose behalf the action is brought for the pecuniary injury which they have sustained by the death.” Consolidated Stone Co. v. Staggs, 164 Ind. 331, 337, 73 N.E. 695, 697 (1905) (quoted approvingly in Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind. 2001)). In addition, such damages may also include loss of care, love and affection, and of training and guidance for children. Dillon v. Glover, 597 N.E.2d 971, 974 (Ind. Ct. App. 1992).