FATAL CAR ACCIDENT IN INDIANA – WRONGFUL DEATH IN INDIANA

Recently, I saw a news story about a fatal car accident in Indiana.  It seemed to me that almost every day the local news contains a story about another fatal car accident in Indiana.  I have been involved in many lawsuits involving fatal car accident in Indiana as well as fatal truck accidents in Indiana and so I am keenly aware of the pain and family heartbreak behind each one.  The accident may be a blip on the news, but it is a tragically impactful event on many lives.

I thought that the frequency of these stories were increasing but I considered that maybe I just pay more attention to this type of news because my work often involves a fatal car accident in Indiana.  So I decided to review the statistics for fatal car accident in Indiana to see if they are indeed becoming more frequent or if this was just my observational selection bias.  So first let’s review the statistics of fatal car accident in Indiana, then we’ll discuss Indiana’s negligence laws, and Indiana’s wrongful death laws.

FATAL CAR ACCIDENT IN INDIANA STATISTICS

As the following statistics show, a fatal car accident in Indiana are a sad but common occurrence on Indiana’s roads every year.  In 2017, 911 individuals were killed in Indiana collisions.  That is up from 821 fatalities in 2016.  As you can see by the following graph published by Indiana Traffic Safety Facts, fatal car accidents in Indiana do not appear to be declining.

Even more noticeable than the rise in occurrences of a fatal car accident in Indiana, the number of Indiana motorcyclist fatalities reached a five year high of 147 fatalities in 2017.

So after reviewing these statistics, the incidents of a fatal car accident in Indiana and fatal motorcycle accidents in Indiana are actually increasing.

FATAL CAR ACCIDENT IN INDIANA – NEGLIGENCE LAW

Many people do not understand the laws surrounding a fatal car accident in Indiana.  The law is the same for fatal truck accidents in Indiana or fatal motorcycle accidents in Indiana.  This is totally understandable as the law is complicated and most people are not lawyers and do not need to know this information.  But if you are here reading this article, you are interested.  So I am going to try to explain the complicated law in the simplest terms possible.

As a disclaimer, there are many more issues in Indiana negligence law than presented in this article.  This article is not intended to cover all the issues in Indiana negligence law, which would probably take thousands of pages.  This is just to give you a basic understanding of how things work.  If you or a loved one has been injured or killed in a fatal car accident in Indiana, you should speak with a qualified Indiana Personal Injury Lawyer about the specific facts of your case.  This article can help you familiarize yourself with the framework, but a qualified attorney needs to evaluate your case for you.

If someone is injured in a car accident due to the negligence of another person or company, they can file a negligence lawsuit.  Similarly, if someone is killed in a car accident due to the negligence of another person or company, then the personal representative of the deceased person’s estate or parents of deceased child can file a lawsuit for wrongful death.

It is very important to note that all lawsuits for negligence in Indiana must be filed within two years from the date of the accident/incident.  This is known as a Statute of Limitations and it prevents any lawsuits from being filed more than two years after an accident or injury.  If you or a loved one has been injured due to the negligence of another and are seeking legal help, this should be one of the first questions you are asked.

In simplest terms, “negligence” just means that someone was not acting a like a reasonable person should act.  For example, if someone is texting while driving and causes an accident due to distraction, most people would agree that the texting driver was not acting reasonably and was therefore negligent in causing the accident.    Who determines if someone was acting reasonably or is negligent?  A jury (or judge if no jury trial is requested) determines if someone was acting reasonably or not in a particular situation/accident.

Broken down to its simplest form (aside from duty and causation which we will discuss in another article), there are two parts to every negligence lawsuit, whether it resulted in property damage, injury or a fatality:

1. Liability; and
2. Damages.

So let’s take a quick look at these issues.

Liability – Indiana’s Modified Comparative Fault

Liability is the determination of who is ultimately responsible for causing an accident.  Indiana uses a system known as modified comparative fault in negligence cases (except ones involving the government).  This system recognizes that situations aren’t always black of white, but shades of gray.  An accident is not always just one person’s fault.    Liability is different than fault.  More than one person can be at fault and liable and conversely a person can be at fault but not liable.  This is confusing so let’s look at an example.

For example, Mike is trying to turn left at an intersection with a traffic signal.  Mike has a green light, but not a green turn arrow, and therefore, he can turn left at the intersection but the law requires him to yield to oncoming traffic before turning.  Mike sees Daniel’s car coming but Mike thinks he has enough time to turn so starts to turn.  As Mike’s car is turning, his car hits Daniel’s car as Daniel is passing through the intersection.  Daniel thinks the accident is Mike’s fault for turning into his vehicle, but as it turns out, the evidence shows that Daniel was speeding 20 mph over the speed limit.  In this case, both drivers may have some comparative fault assessed to them by a jury:  Daniel for speeding and Mike for failing to yield.

In Indiana, a jury (or judge) decides how much comparative fault to assess each party in an accident.  Under Indiana’s modified comparative fault system, a Plaintiff can recover in a lawsuit for injuries as long as his fault does not exceed 50%.

So in our example above, if Daniel sues Mike for personal injuries he sustained in the accident, he can recover as long as a jury (or judge) does not find Daniel more than 50% at fault for the accident.  If the jury decides that Daniel is 51% at fault for the accident, and Mike is only 49% responsible for the accident, he can recover nothing – no matter how serious his injures.  So in this example, a jury determined that Mike is at fault (49%), but he is not liable for any damages because Daniel’s (the Plaintiff) comparative fault is over 50%.  Hopefully, this clears up the difference between fault and liability.

Damages in Indiana Negligence Lawsuits

If a person is determined to be liable (responsible) for an accident by a jury or judge (or if they admit liability), then the next step is to determine how much damages to award the injured party.  Here are a few (not exhaustive) factors a jury may consider when determining the value of an injury and damage award:

1. Whether the Plaintiff was partially responsible for the collision;
2. The permanence of the Plaintiff’s injuries;
3. The amount of time the Plaintiff was out of work due to the injuries and lost wages;
4. Whether the injury has reduced the Plaintiff’s ability to earn an income or return to the same profession;
5. The cost of medical bills Plaintiff has already incurred;
6. The expected cost of Plaintiff’s future medical bills;
7. Whether the injury is preventing the Plaintiff from participating in activities that he or she enjoyed before the accident;
8. Whether the injury has caused intense pain or psychological distress; and
9. Whether the defendant was grossly negligent or acted with willful or wanton misconduct (for punitive damages).

The injuries/damages that a Plaintiff is claiming has to be caused by the person deemed to be at fault for the accident.  So you can’t have a brain tumor and request damages for the brain tumor because of a car accident – unless you have a doctor who will testify that the brain tumor was caused by the accident somehow.  Likewise, if you have a pre-existing condition, you cannot recover for that condition – unless it was aggravated by the accident, in which case you can recover only for the aggravation.  Evidence at trial that a particular injury was caused by an accident or aggravated by an accident almost always has to be presented by a doctor.

Damages awards are the most difficult thing to predict in a negligence case.  Certain types of damages are easier to prove than others.  For example, if an injured person incurred $32,000 worth of medical bills, he can recover those amounts if he proves at trial that they were reasonable, necessary, and caused by the accident.  Likewise, if a person lost $2,465 in wages because of missing work, then he can recover that as well.  Those are called special damages and they are usually easily calculable and proved with the medical bills and or paycheck stubs.  On the list above, 3, 5, and 6 are special damages.

The more difficult type of damages to prove or predict is known as general damages.  This is the type of damages awarded for pain and suffering or permanency of an injury.  There is no book that lawyers can open to point to and say to a jury, look a broken wrist is worth this amount of money.  It is up to a jury (or a judge if no jury trial is requested) at trial to decide how much the Plaintiff’s pain and suffering is worth or the parties can agree on an amount in a settlement (this is usually what happens 90% of the time).  Juries sometimes have a hard time with figuring out the value of pain and suffering.  And because every jury is made up of different citizens with different backgrounds and life experiences, the damage awards are rarely consistent.

If a juror was asked how much a gallon of milk or a car was worth, they could easily reference it from their life experiences and come up with a fairly accurate value.  But when asked to value the pain and suffering for a broken ankle, or a cut to the forehead, or becoming quadriplegic, it is much more difficult.  So it is up to the lawyers to argue to the jury about how much they should award in general damages for things like pain and suffering or the permanent loss of a limb.

Once the jury makes a decision on the total value of the damages, another important thing to note is how comparative fault, which we discussed above, affects a damage recovery.  As you can see by number one on the list above, whether a Plaintiff contributed to the accident is considered in calculating damages.  This is because under Indiana comparative fault scheme, any percentage of fault will reduce damages proportionally.

So using our example from above, if Daniel is found to be 50% at fault for the accident, he can still recover.  However, if the jury awards Daniel $100,000 for his injuries, he can only recover 50% of that amount, or $50,000.  If Daniel was found to be 10% at fault for the accident, and the jury awards him $100,000, he could only recover 90% of his damages, or $90,000.

Now that we (hopefully) have a basic understanding of how negligence law works in Indiana, we need to look at how these things work with a fatal car accident in Indiana and a wrongful death suit.

INDIANA WRONGFUL DEATH STATUTES

First, you should know that historically under the common law, parents, a widow, children, or a personal representative of an estate could not file a lawsuit for the death of a loved one – even if caused by the negligence of another.  Essentially, the personal injury claim was extinguished with the person’s death.  So the Indiana legislature passed the Indiana Wrongful Death Statute which changed the law in Indiana to allow surviving spouse, dependents, or next of kin who have lost loved ones to bring a negligence suit and be compensated for their loss due to the negligence of another person or company.

There are three relevant wrongful death statutes in Indiana:

1. The Indiana Wrongful Death Statute;
2. The Indiana Adult Wrongful Act; and
3. The Indiana Child Wrongful Death Act.

Since a lawsuit for wrongful death did not exist at common law, these wrongful death statutes passed by the legislature to allow for these types of suits control the lawsuit and change the rules a bit that we discussed above.  So let’s review each one to understand how a wrongful death lawsuit differs from a traditional negligence lawsuit.

Indiana Wrongful Death Statute

The first statute we will look at wrongful death is contained in Indiana Code § 34-23-1.  This is the general wrongful death statute.

There is a lot of information in this wrongful death statute, and the language is rather old-fashioned, so let’s break down some of the important information contained in this statute:

1. Personal Representative Must File Suit – A negligence action for wrongful death must be filed by a personal representative of the estate of the deceased person. Even if the person has no other assets that would warrant opening an estate for probate, an estate needs to be opened to bring an action.

2. Two Year Statute of Limitations – The action must be filed within two (2) years of the accident/incident causing death. So this is the same statute of limitations as it is for a regular negligence lawsuit.  This is applicable to all three statues as well.

3. No Cap On Damages – The Adult Wrongful Death Act does contain caps (limits) on the amount of damages a Plaintiff can recover and the Child Wrongful Death act also has some limitations on damages. This one does NOT.  The jury (or judge) can award any damages it determines, including but not limited to reasonable medical, hospital, funeral and burial expenses, and lost earning of the deceased. Damages awarded for medical, hospital, and funeral expenses go to the estate to pay for those items.  The remainder of any damage award goes to the widow/widower and to dependent children or dependent next of kin to be distributed in the same manner as any personal property of the deceased (either via a will or intestacy statute).

Indiana Adult Wrongful Death Act

The next section is often referred to as the Adult Wrongful Death Act.  While the General Wrongful Death Act also applies to adults, this statute will be used instead of the general wrongful death statute when an adult is UNMARRIED and has NO dependent (think minor) children or dependent next of kin.  A dependent next of kin could be an adult child with special needs who relies on parents to function or elderly parents who are cared for and live with the decedent.

So for example, if someone is killed in fatal car accident in Indiana due to the negligence of another, and that person was in their 60s, was unmarried or a widow at the time of death, and only has adult children surviving them, then this statute would be used instead of the general wrongful death statute.

There are major differences between the Indiana Wrongful Death Statute and the Indiana Adult Wrongful Death Act.  The Indiana Adult Wrongful Death Act It is contained in Indiana Code § 34-23-1-2.  Some of the important information contained in that statute:

1. http://Indiana Code § 34-23-1-2Definition of Adult Person – This section applies to the death of “Adults”, which is defined as someone older than 20 years of age or older than 23 years old if in college, who are NOT married at the time of their death and who does NOT have any dependents (minor children).

2. Personal Representative Must File Suit – A negligence action for wrongful death must be filed by a personal representative of the estate of the deceased person. Even if the person has no other assets that would warrant opening an estate for probate, an estate needs to be opened to bring an action.

3. Cap on Damages – This section does contain a cap on damages of $300,000.00, which is the maximum recovery. The jury does not get to learn there is a cap at trial, but if they award more than $300,000.00, the award is reduced to $300,000.  The damages are determined by a jury and CANNOT include damages for lost earnings, grief, or punitive damages but damages may include reasonable medical expenses, hospital, funeral and burial expenses, as well as the loss of the adult person’s love and companionship.  If the jury awards for the loss of the adult person’s love and companionship, the jury must specify how much of its total award is for the loss of love and companionship.Damages for reasonable medical expenses, hospital, funeral and burial expenses go to the estate to pay those entities but damages for loss of love and companionship go to the nondependent parents or nondependent children of the adult person.

4. Court or Jury Specifies Damages to Persons – In awarding damages under this section to more than one (1) person, the court or the jury shall specify the amount of the damages that should be awarded to each person. This means that if a parent and or nondependent child/children sue for wrongful death, the court will break down whatever is awarded to specify exactly how much each eligible person is awarded.  Example: – Jury awards Estate $270,000 for loss of love and companionship.  Mother of decedent award $100,000, Father of Decedent is awarded $20,000, Adult Child 1 of Decedent is awarded $100,000, Adult Child 2 of Decedent is awarded $50,000.

5. Parent or Child Seeking Damages Must Prove Relationship –A parent or child who wishes to recover damages under this section has the burden of proving that the parent or child had a genuine, substantial, and ongoing relationship with the adult person before the parent or child may recover damages. Therefore, if a Father had a strained relationship with his unmarried adult son who passes and had not spoken to him in years, the Court may award him less of the total damages when splitting damages as explained above.  If a parent or child does not have a relationship at all with the decedent, they may receive nothing.

In terms of damages, the major differences between this statute and the general wrongful death statute are the $300,000 cap in damages and that loss of earnings cannot be recovered.  These differences can cause large differences in damage awards.

For example, let’s say a 35 year heart surgeon is killed in a fatal car accident in Indiana.  If he is married or has minor children, his estate can recover for his loss of love and companionship to his spouse and children AND also for his lost earnings.  If the heart surgeon is making $2,000,000 a year at the time of his death, the jury can award his estate 30 years of earnings or $60,000,000 just for lost earnings that he would have earned during his lifetime and from which they would have benefited.  However, if that same 35 year old heart surgeon was unmarried and had no minor children at the time of the fatal car accident in Indiana, the most his parents or his non-dependent adult children could recover is $300,000 under the Adult Wrongful Death Act.

Indiana Child Wrongful Death Act

The last wrongful death section is referred to as the Indiana Child Wrongful Death Act.  As its name implies, it is applicable to the deaths of children (under age of 20 or 23 if in college) due to the negligence of another.  The statute is contained in Indiana Code § 34-23-2-1 and here is some of the relevant information from that statute:

1. Definition of Child – A “child” means an unmarried individual without dependents who is (1) less than twenty (20) years of age; or (2) less than twenty-three (23) years of age and is enrolled in a post-secondary educational institution or a career and technical education school or program that is not a post-secondary educational program.

2. Parents can file suit – A wrongful death action for death of a child can be brought by (1) 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; (2) in case of divorce or dissolution of marriage, the person to whom custody of the child was awarded; and (3) a guardian, for the injury or death of a protected person.

In case of death of the person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the                  action for the injury or death of the child.

3. Damages –The plaintiff may recover damages for the loss of the child’s services; for the loss of the child’s love and companionship; and to pay the expenses of health care and hospitalization necessitated by the wrongful act or omission that caused the child’s death; the child’s funeral and burial; the reasonable expense of psychiatric and psychological counseling incurred by a surviving parent or minor sibling of the child that is required because of the death of the child; uninsured debts of the child, including debts for which a parent is obligated on behalf of the child; and the administration of the child’s estate, including reasonable attorney’s fees.  Damages for loss of the child’s services, loss of child’s love and companionship, and for counseling or uninsured debts of the child are awarded to the  (1) the father and mother jointly if both parents had custody of the child; (2) the custodial parent, or custodial grandparent, and the noncustodial parent of the deceased child as apportioned by the court according to their respective losses; or (3) a custodial grandparent of the child if the child was not survived by a parent entitled to benefit under this section.  However, a parent or grandparent who abandoned a deceased child while the child was alive is not entitled to any recovery under this chapter.

4. Cap On Damages – While there is no monetary cap on damages, damages may be awarded only with respect to the period of time from the death of the child until the date that the child would have reached twenty (20) years of age; or twenty-three (23) years of age, if the child was enrolled in a postsecondary educational institution or in a career and technical education school or program that is not a postsecondary educational program; or the date of the child’s last surviving parent’s death; whichever first occurs.  Damages for the loss of the child’s love and companionship can only be awarded with respect to the period of time from the death of the child until the date of the child’s last surviving parent’s death.

Schedule a Free Consultation with an Indianapolis Car Accident Lawyer

If you made it this far, you can see how complicated the law is surrounding wrongful death in Indiana.  If your loved one was injured in a car accident in Indiana, or was involved in a fatal car accident in Indiana, contact us to discuss the case and the issues contained in this article.

As you can see, Avnet Law is well versed in the Indiana laws that govern car accidents in Indiana and the Indiana wrongful death laws that govern a fatal car accident in Indiana. We can help you navigate the law, the proceedings, avoid costly mistakes, and fight for the maximum compensation.

Call 1-877-77-AVNET today for a free initial consultation or contact us below with any questions you may have about your case.