Donnie Wayne Winningham, Kelly Annette Winningham, and Kristy Milburn v. The Supervised Estate of Keri L. Winningham and Interested Party Estate of Leigh Ann Schattner (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 30 2017, 5:22 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Richard Walker THE SUPERVISED ESTATE OF Anderson, Indiana KERI L. WINNINGHAM Julia Blackwell Gelinas Jeffrey S. Dible Maggie L. Smith Frost Brown Todd LLC Indianapolis, Indiana ATTORNEY FOR INTERESTED PARTY APPELLEE ESTATE OF LEIGH ANN SCHATTNER

Mark Alan Bennett Anderson, Indiana

IN THE COURT OF APPEALS OF INDIANA

Donnie Wayne Winningham, August 30, 2017 Kelly Annette Winningham, and Court of Appeals Case No. Kristy Milburn, 48A04-1606-ES-1508 Appellants-Beneficiaries Appeal from the Madison Circuit Court v. The Honorable Mark K. Dudley, Judge The Supervised Estate of Keri L. The Honorable Jason A. Childers, Winningham and Interested Master Commissioner

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Party Estate of Leigh Ann Trial Court Cause No. Schattner 48C06-1507-ES-302

Appellees-Petitioner/Interested Party

Baker, Judge. [1] Donnie Winningham, Kelly Winningham, and Kristy Milburn (collectively, the

Appellants) bring this interlocutory appeal of the trial court’s order that the

proceeds from two wrongful death claims be distributed to the beneficiaries

designated under the Adult Wrongful Death Act,1 rather than the beneficiaries

designated under the intestate succession statute.2 We affirm and remand for

further proceedings. [2] The Appellants are the half-siblings of Keri Winningham.3 On September 27,

2014, Winningham was walking in Anderson when she was struck by a vehicle

driven by one person and then run over by a vehicle driven by another person;

1 Ind. Code § 34-23-1-2. 2 Ind. Code § 29-1-2-1. 3 The interested party, Leigh Ann Schattner, was Winningham’s mother. Schattner passed away after Winningham’s death but before the trial court authorized the distribution of Winningham’s assets.

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she died as a result. At the time of her death, Winningham was a twenty-six-

year-old unmarried adult who did not have a will. [3] Lori Rumreich, Winningham’s aunt, opened a supervised estate for

Winningham and was appointed personal representative. As personal

representative, Rumreich brought wrongful death claims against two insurance

companies. Both companies agreed to settle the claims. [4] In her petition to open the estate, Rumreich listed the proceeds from the

wrongful death claims as assets of the probate estate subject to distribution to

the intestate beneficiaries. Sometime after receiving the trial court’s

authorization to distribute those proceeds through intestate succession, but

before the distribution actually took place, Rumreich became aware of the

possibility that the proceeds were not assets of the probate estate and should not

have been included in the assets to be distributed through intestate succession. [5] Rumreich filed a motion to stay the trial court’s order authorizing distribution

of the proceeds from the wrongful death claims through intestate succession

and requested that the trial court provide instructions on which statute should

govern the distribution of the proceeds. The trial court stayed its prior order.

On May 6, 2016, a hearing took place, and on May 24, 2016, the trial court

entered an order providing that the proceeds from the wrongful death claims

were to be distributed to the beneficiaries designated under the wrongful death

statute. The Appellants now appeal.

Court of Appeals of Indiana | Memorandum Decision 48A04-1606-ES-1508 | August 30, 2017 Page 3 of 5 [6] A probate estate includes the property transferred at the death of a decedent

under the decedent’s will or under Indiana’s statute for an intestate decedent.

I.C. § 29-1-1-3(a)(24). Our Court has long held the view that wrongful death

proceeds are not included in the probate estate and therefore are not distributed

under our intestate statute. Specifically, our Court has noted “that funds

collected as a result of any wrongful death action beyond reasonable medical,

hospital, funeral and burial expense are not an asset of the decedent’s estate.

They inure to the exclusive benefit of” the statutory beneficiaries. In re Estate of

Hutman, 705 N.E.2d 1060, 1064 n.1 (Ind. Ct. App. 1999) (internal quotation

marks and citation omitted); see also, e.g., Blusy v. Rugh, 476 N.E.2d 874, 876

(Ind. Ct. App. 1985) (“a wrongful death action is not an asset of the decedent’s

estate”). In other words, the trial court did not err by ordering that the proceeds

from the wrongful death claims be distributed pursuant to the adult wrongful

death statute. [7] The Appellants also contend that the proceeds from the wrongful death claims

should not be distributed under the Adult Wrongful Death Act because it has

not been established that Winningham’s mother meets the statutory

requirements. Specifically, the Appellants point to the requirement that 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.” I.C. § 34-23-1-2(f). This argument is premature. The trial

court did not order that the proceeds be distributed to any specific person;

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rather, the trial court ordered that the proceeds be distributed pursuant to the

adult wrongful death statute. Appellant’s App. Vol. II p. 79. We therefore

remand so that the trial court can determine who is entitled to the proceeds. [8] The judgment of the trial court is affirmed and remanded for further

proceedings.

Mathias, J., and Pyle, J., concur.

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