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Justices reverse, reinstate wrongful death claim against nursing home

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The estate of a woman who died in a nursing home after an attack by another resident may pursue a wrongful death claim, the Indiana Supreme Court ruled Tuesday. The family was initially told the woman suffered a fall but learned of the attack years later.
Justices reversed a trial court grant of summary judgment for the nursing home in Virginia E. Alldredge and Julia A. Luker, as Co-Personal Representatives of the Estate of Venita Hargis v. The Good Samaritan Home, Inc., 82S01-1305-CT-363. Vernita Hargis lived at Good Samaritan Home in Evansville in November 2006 when a daughter received a call from a nurse saying that Hargis was ill after suffering a fall. Hargis was hospitalized later that day and died a few days later from the head injury she sustained.

A nurse told one of Hargis’ daughters almost three years later that Hargis had been attacked by another resident. In December 2010, the family sued, and the nursing home was granted summary judgment in Vanderburgh Superior Court on its argument that the complaint was time-barred, and that even if fraudulent concealment occurred, that could not extend the statutory two-year filing period.

The Court of Appeals reversed and remanded, giving plaintiffs an opportunity to prove common-law fraud, but holding that the Fraudulent Concealment statute could not apply because it was enacted after the Wrongful Death Act.

Though an issue of first impression, Justice Mark Massa wrote for the court, “Based upon our review of the historical and precedential records, we conclude that if a plaintiff makes the necessary factual showing, the Fraudulent Concealment Statute may apply to toll the Wrongful Death Act’s two-year filing period. In so holding, we break very little new ground."  

“Public policy considerations further bolster our conclusion. Were we to hold otherwise, we would be incentivizing fraud and thus thwarting the obvious purpose of the Fraudulent Concealment Statute,” Massa wrote. “And our decision today is consistent with that of courts in other jurisdictions, which have routinely found fraud may toll a statutory filing period even when it is a condition precedent to the existence of the claim rather than a statute of limitation.”

The opinion traces statutes, common law and caselaw dating back more than 200 years to find numerous examples tolling in similar Indiana cases. The opinion opens with the final opinion written by Indiana’s fifth justice, Stephen C. Stevens – Raymond v. Simonson, an 1835 ruling –  in which he laments “the labyrinth of difficulties, discriminations, technicalities and shades that have gathered around the statute of limitations.”

In a footnote, Massa notes a biography of Stevens says after he resigned from the bench he returned to private practice. “(T)hirty-three years later, after losing his fortune in a bad railroad investment, he died destitute in the Indiana Hospital for the Insane.”

 

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  1. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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