Wednesday, May 13, 2009
Ind. Courts - Supreme Court issues a second opinion today
In Maggie Bush and Leonard Bush v. State Farm Mutual Automobile Ins. Co., a 7-page, 5-0 opinion, Justice Boehm writes:
We hold that an uninsured motorist policy restricting coverage to bodily injury or death sustained by an insured does not violate Indiana’s uninsured motorist statute. * * *
Finally, although this issue is one of first impression in Indiana, our conclusion is consistent with the substantial majority of other states that have addressed the issue under their uninsured motorist statutes. Fifteen states have interpreted their statutes to require that injury be sustained by an insured. Seven states have interpreted their statutes as requiring compensation for injuries sustained by third parties, but in at least four of these, the legislature subsequently amended the statute to require that the injury be sustained by an insured. In short, the clear weight of authority from other jurisdictions supports our conclusion that Indiana’s uninsured motorist statute requires coverage only for bodily injuries sustained by an insured.
Apart from the problem that they did not suffer “bodily injury,” the Bushes have no uninsured motorist coverage for Leonard’s death because, in their individual capacities, they are not persons “legally entitled to recover damages” for Leonard’s death. At common law, there was no tort liability for wrongful death because personal injury actions did not survive the injured party’s death. Estate of Sears ex rel. Sears v. Griffin, 771 N.E.2d 1136, 1138 (Ind. 2002). As a result, wrongful death actions are purely statutory. Id. In Indiana, claims for the death of a person must be brought under either the Child Wrongful Death Act, the Adult Wrongful Death Act, or the general Wrongful Death Act. See id. Leonard was an unmarried childless adult, and therefore his death is governed by the Adult Wrongful Death Act. I.C. § 34-23-1-2(a). A claim under that statute may be asserted only by the decedent’s estate. Id. § 34-23-1-2(b). This is no mere technicality. If the claim is asserted under the Adult Wrongful Death Act, some proceeds are subjected to creditors of the decedent’s estate, and aggregate damages for loss of love and companionship are capped at $300,000. Id. § 34-23-1-2(d), (e).
Conclusion. The trial court’s grant of summary judgment is affirmed.
Posted by Marcia Oddi on May 13, 2009 05:24 PM
Posted to Ind. Sup.Ct. Decisions