Vaidik, C.J.
Indiana’s general wrongful-death statute, Indiana Code section 34-23-1-1, establishes two categories of damages—what we will call “final-expense damages” and “survivor damages.” The statute provides that if the decedent is not survived by a spouse, dependent children, or dependent next of kin, the decedent’s personal representative can recover, on behalf of the decedent’s estate, only final-expense damages: medical expenses related to the decedent’s last illness or injury; funeral and burial expenses; and expenses of administering the estate and pursuing the wrongful-death action, including a reasonable attorney’s fee. If the decedent is survived by a spouse, dependent children, or dependent next of kin, the decedent’s personal representative can recover both the final-expense damages on behalf the decedent’s estate and survivor damages, including lost earnings of the decedent, on behalf of the statutory beneficiary/ies.
This appeal presents the issue of what happens when one of the statutory beneficiaries enumerated in the statute (in this case, a spouse) survives the wrongful-death decedent but then dies himself while the wrongful-death action is still pending—that is, what happens when the survivor who would have collected the survivor damages has ceased being a “survivor”? Our Supreme Court addressed this question in Bemenderfer v. Williams, 745 N.E.2d 212 (Ind. 2001), where a man named Hoy Sturgeon survived his wife Dorothy and filed a wrongful-death action but then died himself before the action had concluded. The question was whether Hoy’s claim for survivor damages could be carried on by the elderly couple’s daughter, who, as Hoy’s heir, stood to ultimately recover the damages. The Court held that she could.
Here, as in Bemenderfer, a husband filed a wrongful-death action after the death of his wife but then died himself while the action was still pending. However, there is one key difference—the husband died without any heirs, so that any survivor damages recovered on his behalf would ultimately pass (“escheat”) to the state. We must decide whether the deceased husband’s/beneficiary’s claim for survivor damages can be carried on under these circumstances. We hold that it cannot.
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Laura’s Estate contends that it should be able to pursue David’s survivor damages under our Supreme Court’s decision in Bemenderfer. The Estate correctly notes that the Bemenderfer Court’s stated holding was that “the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages.” 745 N.E.2d at 215. The Estate argues that because this passage says nothing about the statutory beneficiary leaving an heir who would ultimately collect the beneficiary’s survivor damages, it can continue David’s claim for such damages even though he had no heirs and those damages would eventually pass to the state. We disagree. [Footnote omitted.]
As we noted at the outset, the statutory beneficiary who died in Bemenderfer, Hoy Sturgeon, did have an heir, and that fact was central to the Supreme Court’s decision…As we noted at the outset, the statutory beneficiary who died in Bemenderfer, Hoy Sturgeon, did have an heir, and that fact was central to the Supreme Court’s decision…That is, the holding turned on the fact that an heir of the deceased statutory beneficiary would receive a smaller inheritance absent an award of survivor damages.
Here, because David left no heirs, there is no one left who can say that they will receive a smaller inheritance—that they would suffer a “pecuniary loss”—if David’s claim for survivor damages is terminated…
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Laura’s Estate also asserts that our holding will give wrongful-death defendants an incentive to “continue and delay cases as long as possible with the hopes that the statutory beneficiary will die.” Id. But that is true only if the statutory beneficiary has no heirs—as established in Bemenderfer, an heir of a statutory beneficiary can pursue that beneficiary’s claim for survivor damages even if the beneficiary dies while the claim is still pending. Moreover, a statutory beneficiary can usually avoid having no heirs. Here, David could have created heirs—and kept the Providers on the hook for survivor damages—simply by executing a will. He didn’t, so he has no heirs, and any survivor damages would pass to the state. That would be contrary to the compensatory purpose of the wrongful-death statute. Therefore, we affirm the trial court’s grant of the Providers’ motion for partial summary judgment.
Affirmed.
Barnes, J., and Pyle, J., concur.