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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

HEATHER HENDRIXSON, Individually ) 

And as Special Administratrix of the Estate ) 

of MICHAEL HENDRIXSON, Deceased, ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Case No. 3:12-CV-770-JD-CAN 

 ) 

CASSENS TRANSPORT and ) 

TREVOR J. MOLNAR, ) 

 ) 

 Defendants. ) 

 

OPINION AND ORDER 

 On March 18 2013, Heather Hendrixson filed an Amended Complaint alleging claims of 

loss of consortium, punitive damages, and wrongful death [DE 19].1

 On March 22, the 

defendants, Cassens Transport and Trevor J. Molnar, filed a motion to dismiss the loss of 

consortium and punitive damages claims, pursuant to Fed. R. Civ. P. 12(b)(6) [DE 22]. 

Hendrixson responded on March 27 [DE 24], and the defendants filed a reply brief on April 2 

conceding that Hendrixson’s independent loss of consortium claim is appropriate but reiterating 

that the punitive damages claim should be dismissed [DE 28]. 

I. Background 

The Court accepts the following facts asserted in Hendrixson’s complaint and draws all 

reasonable inferences in Hendrixson’s favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th 

Cir. 2008). The events supporting the claims took place in the Town of Wanatah, Indiana, on 

 

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 Hendrixson filed her initial complaint in LaPorte Superior Court on October 25, 2012, alleging claims for 

survivorship, loss of consortium, punitive damages, and wrongful death. The defendants moved to dismiss her 

survivorship, loss of consortium and punitive damages claims on January 3, 2013 [DE 9]. The first motion to 

dismiss is technically moot, since the initial complaint has been superseded, but the Court notes that it would be 

denied for the same reasons discussed herein and therefore simply denies both motions. 
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September 9, 2012. See DE 19 at 1. Molnar, a Cassens employee, was involved in a vehicular 

accident that led to the injuring and eventual death of Michael Hendrixson, the Plaintiff’s spouse. 

See DE 19 at 1, 4. 

Acting within the scope of his employment, Molnar drove a semi-trailer truck on a 

westerly route along U.S. Highway 30. See DE 19 at 1. He operated the vehicle with the cruise 

control function enabled and in excess of posted speed limits. See DE 19 at 2. Molnar continued 

to operate the vehicle in this fashion as he approached an intersection controlled by a traffic 

light. See DE 19 at 3. Molnar entered the intersection at a high rate of speed, even though 

westerly traffic had a red light. See DE 19 at 3. Molnar struck the vehicle occupied by the 

decedent at a speed of 61.5 miles per hour. See DE 19 at 4. 

The decedent occupied the passenger seat of the struck vehicle, which was heading 

southbound via U.S. Highway 421. See DE 19 at 2. The struck vehicle entered the intersection 

in accordance to a green light for southbound traffic. See DE 19 at 3. The decedent received 

life threatening injuries from the collision and was transported to South Bend Memorial Hospital. 

See DE 19 at 4. He succumbed to the injuries on September 12, 2012. See DE 19 at 4. The 

Plaintiff was married to the decedent at all relevant times. See DE 19 at 4. 

II. Discussion 

A. Relevant law for dismissal under Fed. R. 12(b)(6) 

Fed. R. Civ. P. 12(b)(6) authorizes dismissal if the complaint fails to sets forth a claim 

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss, pursuant to 

Rule 12(b)(6), tests the adequacy of the complaint and not the merits of the case. Heinze v. S. Ill. 

Healthcare, 2010 WL 276722 *2 (S.D.Ill. 2010); Beery, 2008 WL 2857266 at *1. As such, 

when analyzing a Rule 12(b)(6) motion to dismiss, the Court construes the complaint in the light 
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most favorable to the plaintiff, accepts all well-pleaded factual allegations as true, and draws all 

reasonable inferences in favor of the plaintiff. Tamayo, 526 F.3d at 1081; Wise, 2010 WL 

3980279 at *1; Kmart Corp., 2010 WL 1541296 at *3; Beery, 2008 WL 2857266 at *1. 

However, the Court need not take unsupported legal conclusions contained in the complaint as 

true. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). 

B. Analysis 

Cassens and Molnar originally moved to dismiss the loss of consortium claims in their 

entirety, but have since conceded that Hendrixson does have a loss of consortium claim under 

Bemenderfer v. Williams, 745 N.E.2d 212 (Ind. 2001). See DE 28 at 2. The only part of their 

motion to dismiss that remains is thus their attack on the availability of punitive damages under 

the allegations in the complaint. 

Cassens and Molnar argue that punitive damages are not available for “independent 

claims for loss of consortium in wrongful death actions.” DE 28 at 2. In support, they cite 

Durham ex rel. Estate of Wade v. U-Haul Int'l, 745 N.E.2d 755 (Ind. 2001), which held that 

punitive damages are not available in any suit brought under Indiana’s wrongful death statute, 

Ind. Code § 34-23-1-1 et seq. In that case, a U-Haul truck was unable to stop in response to 

slowed traffic and struck a vehicle with two passengers; one passenger died instantly and the 

other within minutes. Id. at 757. The second victim’s survivors, including her spouse, sued for 

wrongful death and loss of consortium, seeking punitive damages. Id. 

The Indiana Supreme Court resolved three questions. First, it held that punitive damages 

are not available in suits under Indiana’s wrongful death statute. Second, it held that a common 

law action for loss of consortium is derivative of the injured spouse’s personal injury claim and 

is therefore extinguished by the injured spouse’s death. Id. at 764. Third, however, the Court 
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held that although a common law cause of action for loss of consortium may not include postdeath loss of consortium, a spouse may recover post-death loss of consortium as a measure of 

damages in a wrongful death action. Id. at 765. The upshot of these holdings was that a spouse 

may recover damages for post-death loss of consortium in a wrongful death action, but may not 

recover punitive damages, which are unavailable under the wrongful death statute. Id. at 765-66. 

The defendants read Durham to forbid, as a policy matter, the award of punitive damages 

for loss of consortium claims after the injured spouse has died. But Durham stopped short of 

saying that a spouse may never recover punitive damages in a loss of consortium claim once the 

injured spouse died. It said little about the measure of damages that would be available in a 

common law loss of consortium claim addressed to the pre-death loss of consortium, merely 

noting that “[m]ost states continue to adhere to the rule that common law recovery for loss of 

consortium damages is limited to the period between the spouse’s injury and the spouse’s death.” 

Id. at 765 (citing cases). 

However, in Bemenderfer (decided on the same day as Durham), the Indiana Supreme 

Court clarified that given an attenuated death of a spouse, the surviving spouse is able to bring a 

separate common law loss of consortium claim. 745 N.E.2d 212. There, the tortious act was 

committed three days prior to the spouse’s death. Id. at 215. The court held that “[the surviving 

spouse is] entitled to recover loss of consortium damages as a common law claim for [the three 

days preceding death] and under the wrongful death statute for the period from [the date of 

death] to the end of his life expectancy as of that date.” Id. at 219. Thus, the fact that post-death 

loss of consortium claims are available only under the wrongful death statute (without punitive 

damages) does not mean that a separate pre-death common law loss of consortium claim 

(potentially including punitive damages) cannot also proceed. 
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Defendants, quoting Durham, argue that legislative policy would be circumvented if 

punitive damages were available in this case. See DE 28 at 2 (arguing that “Durham held that if 

a loss of consortium claim could circumvent the unavailability of punitive damages in wrongful 

death cases, ‘a number of legislative policy calls would be circumvented.’” (quoting Durham, 

745 N.E.2d at 764)). But Durham concluded only that the Indiana legislature did not intend to 

allow punitive damages under the wrongful death statute. It said nothing about eliminating 

punitive damages from loss of consortium claims altogether, once the injured spouse dies. 

Indeed, because the death in Durham was essentially instantaneous, the Court had no reason to 

consider the availability of punitive damages in a separate loss of consortium claim covering the 

period before death. Because Hendrixson’s punitive damage claim is rooted in a common law 

claim, Durham’s holding regarding the legislative policy behind the wrongful death statute 

simply do not apply. 

Defendants also argue that no decision from the Indiana Supreme Court or Court of 

Appeals has drawn any sort of distinction between “instantaneous” or “prolonged” death claims. 

See DE 28 at 2. Yet Bemenderfer does exactly that. In the concluding paragraph, the Indiana 

Supreme Court explicitly allows for loss of consortium damages to be recovered via two

claims—a common law loss of consortium claim along with loss of consortium damages under 

the wrongful death claim. This distinction is important because the law governing the period 

between tortious act and death is not the wrongful death statute, but traditional common law loss 

of consortium. The defendants point to no other authority suggesting that Indiana derogates 

from the availability of punitive damages under the common law action for loss of consortium; 

nor do they explain why they believe that the Indiana Supreme Court would eliminate punitive 

damages for some loss of consortium claims but not others, simply because the injured spouse 
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has died. See Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1057 (Ind. Ct. App. 1990) 

(“It would be anomalous to allow Richard's death to insulate Defendants from liability for 

punitive damages when his widow claims them independently of the wrongful death statute.”).

Hendrixson’s punitive damages claim is rooted in her common law loss of consortium claim, 

which the Defendants conceded was appropriate under Bemenderfer v. Williams, 745 N.E.2d 212 

(Ind. 2001). See DE 28 at 2. Therefore, she is not restricted to compensation solely under the 

wrongful death act, and thus, not limited by Durham’s prohibition on punitive damages. 

Consequently, a plain reading of Hendrixson’s complaint provides sufficient legal and factual 

support for her punitive damages claim. 

III.Conclusion 

For the reasons state above, the Court DENIES the Defendants’ motions to dismiss. [DE 

9, 22]. 

SO ORDERED. 

ENTERED: June 28, 2013 

 /s/ JON E. DEGUILIO 

Judge 

 United States District Court