Summary
evaluating the effective wrongful death statute at the time, Indiana Code section 34-1-1-2, now Indiana Code section 34-23-1-1
Summary of this case from Smith v. ToneyOpinion
No. 46A03-9707-CV-249.
December 19, 1997.
Appeal from the Laporte Superior Court #2, The Honorable Steven E. King, Judge, Cause No. 46D02-9607-CT-135.
Daniel H. Pfeifer, Jeffrey J. Stesiak, Sweeney, Pfeifer Morgan, South Bend, Indiana, Attorney for Appellant.
R. Kent Rowe, III, Marie Anne Hendrie, Rowe Rowe, South Bend, Indiana, Attorney for Appellee.
OPINION
Jason Ward appeals the trial court's entry of summary judgment against him on his wrongful death claim for the death of his fiancee. Ward's fiancee was killed in an automobile accident. The trial court ruled that Ward did not fall within the class of individuals entitled to bring a wrongful death claim under Indiana Code § 34-1-1-2 (1988). Ward presents one issue on appeal: whether IC 34-1-1-2 allows a fiance to recover for the death of his betrothed.
We affirm.
Wrongful death actions are purely statutory in Indiana. Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994), adopted on transfer, Ed Wiersma Trucking Co. v. Pfaff, 678 N.E.2d 110 (Ind. 1997). At common law, there was no tort liability for killing a person. Id. "Because wrongful death actions are purely creatures of statute, they are strictly construed. Therefore, only those damages prescribed by the Statute may be recovered." (Citations omitted.) Id. IC 34-1-1-2 does not prescribe that a fiance may recover damages, stating in relevant part:
That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedent's estate for the payment thereof. The remainder of the damages, if any, shall, subject to the provisions of this article, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased.
Ward did not provide medical or funeral services to the decedent, was not a dependent child or next of kin of the decedent, and was not the decedent's widower. The wrongful death statute does not prescribe that damages may be recovered by a fiance. Therefore Ward does not have a cause of action for the death of his fiance under IC 34-1-1-2.
Ward acknowledges that IC 34-1-1-2 does not allow a cause of action to a fiance, but he argues that "under the totality of the circumstances in this case" he should be entitled to bring suit. Appellant's brief at 10. The circumstances are that Ward and the decedent had lived together for two years, had received a marriage license, and were going to marry in six days.
The circumstance that Ward and his fiance had lived together for two years is not legally significant. In Indiana, there can be no common law marriage unless it was entered into before 1958. Ind. Code § 31-7-6-5 (1993), recodified at Ind. Code § 31-11-8-5 (Supp. 1997). Even the law governing common law marriage holds that cohabitation does not equate to marriage. Anderson v. Anderson, 235 Ind. 113, 131 N.E.2d 301, 306 (1956). As to the scheduled wedding, it serves only to emphasize the fact that they were not yet married. The statute and precedent are clear; a fiance has no cause of action under IC 34-1-1-2.
Affirmed.
HOFFMAN, J., and NAJAM, J., concur.