ENTRY ON EUROCOPTER DEFENDANTS' MOTION TO DISMISS CONSECO PLAINTIFFS' CLAIMS FOR RELIEF

DAVID F. HAMILTON, Judge United States District Court.

Lawrence W. Inlow was killed in 1997 when he was hit in the head by a helicopter rotor blade after he disembarked from the helicopter during a business trip. This consolidated case presents several claims related to Mr. Inlow's death, including claims brought by Mr. Inlow's employer at the time of his death, Conseco, Inc., and its related entities. Specifically, Conseco, Inc., Conseco Services, L.L.C., CIHC, Inc., and Conseco Health Insurance Company (the "Conseco Plaintiffs") have sued Eurocopter, S.A., American Eurocopter Corporation and Societe Nationale Industrielle Aerospatiale, S.A. (referred to jointly as the "Eurocopter Defendants"). The Eurocopter Defendants are the designers, manufacturers, and sellers of the helicopter in question. The Conseco Plaintiffs leased and operated the helicopter. The Conseco Plaintiffs seek reimbursement from the Eurocopter Defendants for the $10 million in contractual death benefits that they have paid to Mr. Inlow's estate.

In general, the Conseco Plaintiffs' theory for recovery is that the Eurocopter Defendants engaged in wrongful conduct that caused Mr. Inlow's death, which in turn triggered the Conseco Plaintiffs' duty to pay the death benefits. The Conseco Plaintiffs have pled claims for product liability, negligence, breach of contract, indemnification and subrogation, and fraud and constructive fraud.

The Eurocopter Defendants have moved to dismiss all of the Conseco Plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. As discussed below, the court grants the Eurocopter Defendants' motion in its entirety. The Conseco Plaintiffs have not identified any case approving of any of their theories under any circumstances comparable to this case. Under the well-settled authority that this court discussed in an earlier entry in this case, the Conseco Plaintiffs cannot state an indemnification claim under Indiana law. See In re Inlow Accident Litigation, 2001 WL 331625, at *9 (S.D.Ind. Feb. 7, 2001). The Conseco Plaintiffs' claims also are barred by Indiana common law and the Indiana Wrongful Death Act. The Conseco Plaintiffs have made creative efforts to recast the claims as something other than a claim for wrongful death and for indemnification. At bottom, however, the substance of their claims controls.

Recognition of the Conseco Plaintiffs' claims would open new landscapes for sterile litigation often pitting surviving family members against the decedent's former employer or life insurer. The Conseco Plaintiffs have no claim against the Eurocopter Defendants for damages related to Mr. Inlow's death.

Standard for Dismissal

Background

The Conseco Plaintiffs are pursuing the same theory of damages for each of their claims. Under the terms of Mr. Inlow's employment agreement and certain employee benefit plans, the Conseco Plaintiffs have paid (or are obligated to pay) the Inlow estate a total of $10 million as a result of his death. The damages they seek are these payments under the employment contract. The Conseco Plaintiffs do not seek a remedy for the loss of Mr. Inlow's services, for the reimbursement of any workers' compensation benefits (at least at this time), for damage to the helicopter, or for any other type of loss.

I. The Claim for Indemnification or Subrogation

All roads in the Conseco Plaintiffs' First Amended Complaint lead to count four — the claim for "indemnification and subrogation." Without regard to the names assigned to the liability theories articulated in the four other counts, each count seeks indemnification — that is, the reimbursement of the contractual death benefits that became payable by the Conseco Plaintiffs upon Mr. Inlow's death. The Conseco Plaintiffs' allegations do not state a claim for indemnification under Indiana law because their obligation to pay the death benefits arose by contract and was theirs alone. Adding the "subrogation" label to the indemnification claim does not make the claim viable. The Conseco Plaintiffs seek recovery in their own right, which is not what subrogation permits.

A. Indemnification

In an earlier decision in this case, the court explained the relatively narrow scope of common law indemnification claims in Indiana:

Under Indiana law, it is well established that, in the absence of an indemnification agreement, indemnification claims lie only in cases of derivative liability (e.g., respondeat superior liability) or in cases of constructive liability (by operation of a statute or rule that imposes a non-delegable duty on a third-party). The definitive statement of Indiana law on this question remains Judge Dillin's opinion in McClish v. Niagara Mach. Tool Works, 266 F. Supp. 987 (S.D.Ind. 1967), in which he granted an employer's summary judgment motion on claims for indemnity and contribution brought by an equipment manufacturer that had been sued by an injured employee. See also Sprigler v. Osnabrucker Mettallwerke, 761 F. Supp. 86, 88-90 (S.D.Ind. 1991) (same, following McClish in case governed by comparative fault legislation); Indianapolis Power Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669, 670-71 (Ind. 1991) (citing McClish with approval).

In re Inlow Accident Litigation, 2001 WL 331625, at *9 (S.D.Ind. Feb. 7, 2001).

The Conseco Plaintiffs' indemnification claim fails because it is not based on an indemnification agreement or on either of the two viable theories of implied indemnification described in McClish. First, there is no derivative or vicarious liability to a purchaser for a seller's actions. See Sears, Roebuck Co., Inc. v. Boyd, 562 N.E.2d 458, 461 (Ind.App. 1990) (reversing denial of motion for judgment on pleadings on implied indemnification: "Although [the purchaser] was [the seller's] customer, no vicarious liability developed from this relationship which would make [the purchaser] liable for [the seller's] acts or omissions.").

Second, there is no constructive liability because the Conseco Plaintiffs' death benefit payments were not required by statute or rule. On the contrary, the Conseco Plaintiffs' liability for Mr. Inlow's substantial death benefits arose only by contract — a contract the Conseco Plaintiffs entered voluntarily in order to obtain Mr. Inlow's services. The contractual death benefits were akin to life insurance benefits, which are not subject to indemnification by a third party tortfeasor because the asserted injury to the insurer is deemed too remote in relationship to the injury that results in the death of the insured. See Insurance Co. v. Brame, 95 U.S. 754, 758 (1877) (affirming dismissal of life insurer's claim against defendant who shot and killed the insured: "The injury [that killed the insured was] against his personal rights; that it happened to injure [the insurer] was an incidental circumstance, a remote and indirect result, not necessarily or legitimately resulting from the act of killing.").

The Conseco Plaintiffs argue in favor of indemnification by describing their liability to Mr. Inlow and his estate as "contingent" and in "combination" with the Eurocopter Defendants' obligations. See Conseco Pl. Mem. at 31, 33. These undefined categories of liability were not recognized by McClish as triggering indemnification rights, nor by other Indiana courts since McClish. In any event, the Conseco Plaintiffs' liability for death benefits was not contingent or dependent upon the Eurocopter Defendants' acts or omissions. The Conseco Plaintiffs had a contractual duty to pay the contractual benefits upon Mr. Inlow's death, regardless of how he died. See Conseco Pl. First Amended Cplt. ¶ 28 ("Under Mr. Inlow's employment agreement with Conseco, he was entitled to participate in Conseco's 1994 Stock and Incentive Plan ('the 1994 Plan') and other employee benefit plans. Under the 1994 Plan and such other plans, a participant's estate was entitled to certain benefits upon the participant's death.").

Under Indiana law, this independent duty to make the contractual payments defeats any claim of implied indemnification. See Elcona Homes Corp. v. McMillan Bloedell, Ltd., 475 N.E.2d 713, 715 (Ind.App. 1985) (right of indemnification may be implied in favor of one whose liability to another is "solely derivative or constructive and only against one whose wrongful act has caused such liability to be imposed.") (emphasis added). Like a life insurer's obligation to the estate of an insured, the Conseco Plaintiffs' obligation to pay death benefits under the contract was no less real or independent for its being conditioned upon Mr. Inlow's death, regardless of the cause.

In their brief, the Conseco Plaintiffs try to avoid the plain teachings of McClish and instead rely on inapposite cases from other jurisdictions to support their indemnification claim. See, e.g., Richardson v. St. Charles-St. John, 284 F. Supp. 709, 713, 716 (E.D.La. 1968) (under admiralty law, employer could recover "maintenance and cure" payments from negligent tortfeasor where the shipowner's obligation to make payments to the employee was imposed by law); Atchison, Topeka Santa Fe Ry. Co. v. Hadley Auto Transport, 192 F. Supp. 849, 850 (D.Colo. 1961) (entering judgment for employer on indemnification claim under Colorado law which allowed indemnification of one secondarily liable by one primarily liable); Jones v. Waterman S.S. Corp., 155 F.2d 992, 998 (3d Cir. 1946) (under Pennsylvania law, following the "general law" at that time, an employer may recover from a negligent tortfeasor the value of the services of an injured employee as well as the value of the maintenance and cure the employer paid to the employee under admiralty law); contra, United States v. Gallagher, 467 F.2d 1103, 1104 (9th Cir. 1972) (refusing to follow Jones to permit federal government to recover statutory maintenance and cure payments to seaman employed by the government who was injured by third-party tortfeasor). These cases simply are not instructive on the scope of indemnification law in Indiana. Moreover, even though these cases may be more sympathetic to the Conseco Plaintiffs' liability theory generally, none involved the reimbursement of an employer who had paid contractual death benefits to an employee.

B. Subrogation

The First Amended Complaint describes the Conseco Plaintiffs' indemnification claim as one for "indemnification and subrogation." As with indemnification, in the absence of a subrogation agreement, Indiana courts will impose an equitable subrogation relationship under certain circumstances. The Conseco Plaintiffs' allegations do not state a claim for equitable subrogation under Indiana law because they seek to vindicate their own rights.

Subrogation involves the substitution of a party who has paid a debt to a creditor so that that party may exercise the creditor's rights against the debtor. Equitable subrogation is applicable when a "party, not acting as a volunteer, pays the debt of another which, in good conscience, should have been paid by the one primarily liable." Erie Ins. Co. v. George, 681 N.E.2d 183, 186 (Ind. 1997), citing Loving v. Ponderosa Sys., Inc., 479 N.E.2d 531, 536 (Ind. 1985) ("equitable subrogation . . . is not founded upon contract but upon principles of equity"). If equity permits, the party who has paid the creditor, or subrogee, becomes entitled to the legal rights and security originally held by the creditor. Liberty Mortg. Corp. v. National City Bank, 755 N.E.2d 639, 641 (Ind.App. 2001). Subrogation depends upon the equities and attending facts and circumstances of each case. Osterman v. Baber, 714 N.E.2d 735, 737-38 (Ind.App. 1999).

The Conseco Plaintiffs' subrogation claim fails because the complaint does not allege that they have paid the debt of another or a debt for which another is primarily liable. Instead, they paid their own debts under Mr. Inlow's employment agreement and certain employee benefit plans. In Morton v. Merillville Toyota, Inc., 562 N.E.2d 781 (Ind.App. 1990), the Indiana Court of Appeals ordered dismissal of an employer's claim for the value of lost services of a negligently injured employee. The court rejected the employer's argument that subrogation theory supported its recovery against the tortfeasor: "The right of subrogation is clearly distinguishable from an action for negligence to injured employees. Subrogation allows a substitution of plaintiffs. It does not create additional plaintiffs with a new right of recovery." Id. at 785.

II. Indiana Common Law and the Indiana Wrongful Death Act

Because all of the Conseco Plaintiffs' claims ultimately seek what amounts to indemnification for contractual death benefits, the First Amended Complaint fails to state a claim on which relief can be granted for the reasons discussed above. In addition, the Conseco Plaintiffs' claims fail because Indiana law does not recognize an employer's right to recover damages arising from the negligent injury of an employee and because the Conseco Plaintiffs are not proper plaintiffs under the Indiana Wrongful Death Act.

A. Morton v. Merillville Toyota, Inc.

The Indiana Court of Appeals rejected an employer's common law action for damages related to an employee's injuries inflicted by a negligent third-party in Morton v. Merillville Toyota, Inc., 562 N.E.2d 781 (Ind.App. 1990). The employer sought compensation for loss of its employee's services. Id. at 782. The court reversed the denial of a motion to dismiss the employer's action for failure to state a claim.

In reaching its decision, the court discussed in detail the English common law rule of per quod servitium amisit ("whereby he lost the service"). See id. at 783-84 (tracing the rule's evolution from early Roman law). Under this rule, an employer could recover damages for harm by a third-party to his domestic servant, including damages for the loss of the servant's services. The rule was based on the employer's proprietary interest in his servant, which is a concept alien to American law, at least since the Civil War and ratification of the Thirteenth Amendment. The rule was sharply narrowed in the English common law in 1956, limiting its application only to "domestic" employees. Over time, some American jurisdictions had adopted the rule. Following the trend in England, many of those jurisdictions later abandoned it. The Court of Appeals found no relevant Indiana precedent, and the court declined to recognize a new cause of action for the employer, largely on policy grounds:

[The defendant] fails to recognize the probable countervailing effect upon society. Permitting employers to recover for loss of profits for negligent injury to their employees would result in a multiplicity of actions out of the same tortious act. The overwhelming majority of people in today's society are employed, and thus for nearly every injury another possible claim and another possible party would become a factor in the average lawsuit.* * * *

Thus, already overloaded court dockets and burgeoning litigation costs would be augmented by the recognition of the action, all to prevent any loss of profits from being passed on to consumers. Will this result in a benefit to society at large? We think not. Most judgments, as well as litigation costs, will be paid by insurance companies. Insurance companies will pass on these costs to their insureds in the form of higher insurance premiums. Consequently, society would bear both the cost of the economic injury and the cost of litigating that injury. Overcrowded dockets would further burden society, costing more tax dollars and causing extended delay of pending litigation. In summary, the rationale underlying the action for loss of services of a negligently injured employee is outmoded, the policy reasons for adopting it are dubious, and its basis in Indiana law is nonexistent. We are disinclined to adopt a cause of action which has been rejected by every modern court which has addressed it, including that of the country of its origin.

Id. at 786.

In Morton, the employer had argued that its claim was similar to those for loss of consortium or subrogation, or the doctrine that a defendant takes the plaintiff as he finds him, the implied warranty of habitability, the right of bystanders to recover under the Indiana Products Liability Act, and the rights of recovery under the Indiana Wrongful Death Act. Id. at 785. The court rejected each of these theories. In pertinent part, the court did not find persuasive the employer's argument that it should have a remedy because the products liability and wrongful death statutes created rights not available at common law. Id. at 786. In addition, as discussed above, the court found the right of subrogation "clearly distinguishable" from an action for damages based on negligence to an injured employee. Id. at 785.

The Conseco Plaintiffs attempt to distinguish their claims from the ones Morton rejected by emphasizing that they do not seek damages for the loss of Mr. Inlow's services. That distinction does not make a difference. Nothing in the Morton opinion suggests that the outcome would have been different if the employer had coupled its same liability theory to a different damages theory. The reasoning of Morton has been extended to bar employers' claims for expenses as well as lost profits. See, e.g., Phoenix Professional Hockey Club v. Hirmer, 502 P.2d 164 (Ariz. 1972) (affirming dismissal of employer's action for out-of-pocket expenses in hiring and employing a substitute goalie while employee was on leave due to car accident).

Although not binding on this court, the decision of the Indiana Court of Appeals in Morton is authoritative unless the court has a good reason to believe that the Indiana Supreme Court would disagree with its analysis. See General Accident Ins. Co. of America v. Gonzales, 86 F.3d 673, 675 (7th Cir. 1996) (when the Supreme Court of Indiana has not addressed an issue, the decisions of the Indiana Court of Appeals provide a "strong indication of how it believes the Supreme Court would decide a similar question, unless there is a persuasive reason to believe otherwise"); Phelps v. Sherwood Medical Indus., 836 F.2d 296, 306 (7th Cir. 1987).

The reasoning of Morton is consistent with the overwhelming weight of authority from other states, see, e.g., Gonzalez v. Yancey, 939 P.2d 525, 526 (Colo.App. 1997) (citing Morton with approval and collecting cases), and this court has no reason to expect the Indiana Supreme Court to depart from Morton.

Under Morton, the Conseco Plaintiffs have no common law right of recovery against the Eurocopter Defendants for damages related to injuries to Mr. Inlow.

B. The Indiana Wrongful Death Act

Even if the Conseco Plaintiffs might have had a viable liability theory for expenses arising from a nonfatal injury to Mr. Inlow, which they do not under the reasoning of Morton, any such claim would have expired with Mr. Inlow's death. The Conseco Plaintiffs may not maintain an action under the Indiana Wrongful Death Act.

The Indiana Wrongful Death Act provides: "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 therefor against the latter." Indiana Code § 34-23-1-1. "[T]he only proper plaintiff in a wrongful death action is the one designated in the wrongful death statute, i.e., the personal representative." General Motors Corp. v. Arnett, 418 N.E.2d 546, 548 (Ind.App. 1981). The Wrongful Death Act created new rights for a decedent's survivors because claims for injuries did not survive death at common law. See South v. White River Farm Bureau Co-Op, 639 N.E.2d 671, 673 (Ind.App. 1994) (wrongful death action does not exist at common law in Indiana). The purpose of the statute is to compensate a decedent's dependents for pecuniary loss. See Chamberlain v. Parks, 692 N.E.2d 1380, 1383 (Ind.App. 1998) ("Permitting nondependents to recover under the Wrongful Death Act would allow a host of unknown potential claimants to seek recovery.").

The Conseco Plaintiffs do not disagree with these principles. They acknowledge that they are not entitled to bring a wrongful death action. They argue, however, that the Wrongful Death Act does not bar their claims because they do not seek relief under the statute.

Judge Gerry faced similar facts and arguments in Trump Taj Mahal Associates v. Construzioni Aeronautiche Giovanni Agusta, S.p.A., 761 F. Supp. 1143 (D.N.J. 1991), aff'd mem., 958 F.2d 365 (3d Cir. 1992), and dismissed the employer's claim for damages arising from the deaths of three executives killed in a helicopter crash. The employer sought damages for a variety of harms including the loss of the executives' services, workers' compensation benefits, and contractual death benefits. The employer asserted claims under eight different liability theories, including strict liability in tort, fraud, gross negligence, and breach of express and implied warranties.

The court dismissed all of the employer's claims because the employer was not entitled to seek damages related to its employees' deaths under the New Jersey wrongful death statute. Like the Indiana statute, the New Jersey Wrongful Death Act limited the class of plaintiffs to individuals who had an entitlement to the decedent's estate. Like the Conseco Plaintiffs here, the employer in Trump Taj Mahal agreed that it was not entitled to bring a wrongful death action and simply contended that it had not done so. The court rejected that argument:

Plaintiffs argue that their claim is not a wrongful death action because their link to their employees is contractual, not familial. Plaintiffs here attempt to transform what is a bar to their recovery into the means to redefine their claim and so avoid the bar. However, that they do not have the statutorily mandated link to the deceased which would entitle them to recover under the wrongful death statute does not alter the fact that this action is grounded in the allegedly wrongful death of their employees. Plaintiffs' "contractual obligations" — salary and worker's compensation payments — along with their damages, all arose from the ashes of "that fiery helicopter crash" that killed their employees. However described by plaintiffs, this is a wrongful death action.

The same analysis applies here under Indiana law. There is no right of recovery for the Conseco Plaintiffs. All of their claims, no matter how they are labeled, are claims arising from the allegedly wrongful death of Mr. Inlow. See, e.g., Rogers v. R.J. Reynolds Tobacco Co., 731 N.E.2d 36, 42 (Ind.App. 2000) (observing that plaintiff's wrongful death claim included theories of strict liability, negligence, and fraud), aff'd in relevant part, 745 N.E.2d 793 (Ind. 2001); Small v. Centocor, Inc., 731 N.E.2d 22, 29 (Ind.App. 2000) (plaintiff's claims of "forgery," "active fraud," "deceit," "constructive fraud," and "fraudulent concealment" were all based on decedent's medical treatment and therefore were governed by the statutes of limitations under the malpractice and wrongful death statutes; plaintiff could not take advantage of longer limitations periods for tort actions by invoking fraud theories).

On similar facts, other courts have reached the same conclusion under different wrongful death statutes. See Lusby v. Union Pacific Railroad Co., 4 F.3d 639, 642-43 (8th Cir. 1993) (corporation owned by decedent could not recover for loss of his services because it was not a proper plaintiff under the Arkansas wrongful death statute); Owen v. United States, 713 F.2d 1461, 1468 (9th Cir. 1983) (affirming dismissal of employer's complaint under California wrongful death statute even though employer described its claim as one for negligence); Preiser Scientific, Inc. v. Piedmont Aviation, Inc., 432 F.2d 1002, 1002 (4th Cir. 1970) (summarily affirming holding that employer could not recover under common law or West Virginia wrongful death statute for allegedly negligent airplane crash that resulted in employee's death); Harris Corp. v. Comair, Inc., 510 F. Supp. 1168, 1170-72 (E.D.Ky. 1981) (dismissing employer's claims for damages based on tort and contract theories under the Kentucky wrongful death statute); see also Risdon Enterprises, Inc. v. Colemill Enterprises, Inc., 324 S.E.2d 738, 740-41 (Ga.App. 1984) (applying South Carolina law and affirming dismissal of employer's claims, including allegations that the defendants had committed intentionally tortious acts by concealing the unairworthy condition of airplane); Fuksman v. General Motors Corp., 447 So.2d 74 (La.App. 1984) (affirming dismissal of corporation's claim for loss or diminution of its value due to its owner-operator's death on ground that such damages were too speculative).

The Conseco Plaintiffs attempt to distinguish their claims from these cases by pointing out that they do not seek damages for the loss of Mr. Inlow's services. That effort to distinguish the cases, however, simply returns the focus to the Conseco Plaintiffs' voluntary contractual undertakings with Mr. Inlow to pay his estate. This argument puts the Conseco Plaintiffs essentially in the position of any life insurer, which would not be entitled to bring an action to recover the value of its benefit payments, as discussed above.

The Conseco Plaintiffs also argue that their claims are not barred by the Indiana Wrongful Death Act because they are asserting "independent" causes of action. They rely on cases that enforced the provisions of the Indiana Medical Malpractice Act where that act conflicts with the wrongful death statute. See Community Hosp. of Anderson v. McKnight, 493 N.E.2d 775 (Ind. 1986) (claim not barred on the ground that plaintiffs were not appointed as decedent's personal representative under the Wrongful Death Act; plaintiffs were entitled to bring action under medical malpractice statute); Frady v. Hedgcock, 497 N.E.2d 620, 622 (Ind.App. 1986) (medical malpractice wrongful death action accrues at the time of the act or omission giving rise to claim and not at the time of death — as would be the case under the wrongful death statute).

However, a wrongful death claim brought under the Indiana Products Liability Act was treated differently. See Holmes v. ACandS, Inc., 709 N.E.2d 36, 43-44 (Ind.App. 1999) (wrongful death action accrued at death and was not subject to discovery rule which applies to Indiana Product Liability Act claims during decedent's lifetime). In Holmes, the Court of Appeals explained that the comprehensiveness of the medical malpractice statute was evidence that its specific requirements should prevail over the more general provisions of the wrongful death statute. The court did not make the "same presumption" regarding the product liability statute. Thus, while Indiana courts have carved out some limited exceptions to strict compliance with the Wrongful Death Act for medical malpractice claims, there is no general rule that "independent" claims are not subject to the statute. The Conseco Plaintiffs have not drawn the court's attention to any context (other than malpractice claims) in which Indiana courts have failed to apply the standards of the Wrongful Death Act to claims within the scope of the statute.

Here, there is no basis for excluding the Conseco Plaintiffs' claims from the requirements of the Wrongful Death Act. All of their claims, regardless of their labels and forms of pleading, fall within the statute's purview. The Conseco Plaintiffs are not entitled to relief on any of these claims.

Conclusion

For all the foregoing reasons, the Conseco Plaintiffs' First Amended Complaint is dismissed under Federal Rule of Civil Procedure 12(b)6 for failure to state a claim on which relief can be granted.

So ordered.