Who Can File a Wrongful Death Lawsuit in Indiana?

A wrongful death lawsuit is similar to the kinds of personal injury lawsuits a person might file if they have been injured in an accident. The key difference, of course, is that in the case of a wrongful death lawsuit, the person died as a result of their injuries. Historically, common-law courts in the United States could not hear personal injury cases brought by the deceased–you need a living plaintiff–so state legislatures created the wrongful death lawsuit as a special type of claim to address these situations.

In Indiana, there are 2 wrongful death statutes that need to be considered when bringing the claim.   Indiana’s General Wrongful Death Act (GWDA) is found at Ind. Code 34-23-1-1. Under the GWDA, “When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefore against the latter, if the former might have maintained an action had he or she…lived.” The damages to a claim under the GWDA include “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. Indiana courts also provide that the surviving spouse, dependent children, and dependent next of kin may recover for the loss of love and affection of the decedent. Richmond Gas Corp. v. Reeves, 302 N.E.2d 795 (Ind. Ct. App. 1973).

Indiana later enacted the Indiana Adult Wrongful Death Act (AWDA), Indiana Code 34-23-1-2 provides that “[I]f the death of an (unmarried) adult person is caused by the wrongful act or omission of another…the personal representative may maintain an action against” the negligent party. In doing so, the Estate may seek damages for “reasonable medical, hospital, funeral, and burial expenses.”

In either scenario, questions of dependency, love and affection, and the proper party to bring the claim all require knowledge of the statutory schemes and the case law interpreting the wrongful death statutes.

Do You Need to Open a Probate Estate? 

In any civil lawsuit a plaintiff must have standing, which is the legal capacity to bring a claim. In a typical personal injury case, a plaintiff has standing if they were directly injured as the result of the defendant’s alleged negligence. In a wrongful death case, by contrast, standing is conferred by state law, either directly on the surviving family members of the victim, or as is more common on the probate estate of the victim.  Standing may seem like a useless formality but courts take it quite seriously.

In Indiana, actions for the wrongful death of adults must be filed by the estate of the deceased, but that is not true when the case regards the death of a child. The Indiana Child Wrongful Death Act (“CWDA”) Indiana Code 34-23-2-1 states that when an unmarried child less than twenty years of age or less than 23 years of age and enrolled in technical school or college dies, the action must be maintained by the parents, not by the child’s estate.

Contact a Madisonville Wrongful Death Attorney Today

Kentucky, like Indiana, vests standing to file a wrongful death claim exclusively in the personal representative of the victim’s probate estate. It is important to note, however, that even though the estate is responsible for prosecuting a wrongful death claim, any damages recovered from the negligent defendant are typically obtained on behalf of the victim’s family. For instance, Kentucky’s wrongful death statute provides that after paying any funeral and administration expenses, the personal representative must pay over any wrongful death settlement or judgment to the victim’s surviving spouse and children, if any, otherwise to their next of kin under the normal laws of inheritance.

Obviously, contemplating a wrongful death lawsuit is often not a family’s first priority when dealing with the sudden death of a family member. But it is important not to delay in asserting your rights under the law. Our experienced Madisonville wrongful death lawyers can review your case and advise you on a course of action. Contact us at Whitfield Crosby & Flynn today to schedule a free consultation. We have offices in Madisonville, Kentucky; Chattanooga, Tennessee; and Indianapolis, Indiana.

Source:

scholar.google.com/scholar_case?case=15353110873700992012