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Child's disability has no bearing on wrongful death suit filed by adult

December 29, 2011

A woman who filed a belated wrongful death suit as personal representative for her son’s estate is bound by the two-year statute of limitations, regardless of the fact that her grandchild has a disability.

In Natalia Robertson, Personal Rep. of the Estate of John Lee Cunningham, III v. Gene B. Glick Co., Inc., The Woods of Eagle Creek, Briarwood Apartments, LP, and Briarwood Apartments II, LP, No. 49A05-1104-CT-158, Natalia Robertson filed suit against The Woods of Eagle Creek apartment complex and its parent companies more than two years after her son, John Cunningham, was shot and killed at the complex. Cunningham was survived by his 11-year-old daughter, J.C., who has autism.

Robertson argued that the general tolling statute applicable to statutes of limitation, Indiana Code 34-11-6-1, applies because the primary beneficiary of the action, J.C., has a disability. The defendants responded that the two-year time period is a condition precedent that cannot be altered by the tolling statute, and that, even if it could be altered by the tolling statute, the disability of a beneficiary is not relevant where the claim must be brought by a personal representative. The Indiana Court of Appeals agreed with the defendants.

Robertson also argued that Indiana’s wrongful death statutes violate the Indiana Constitution’s Privileges and Immunities Clause, Article 1, Section 23; and the Due Course of Law Clause, Article 1, Section 12. Concluding I.C. 34-11-6-1 does not apply to the General Wrongful Death Act and that Indiana’s wrongful death statutes do not violate the Privileges and Immunities Clause or Due Course of Law Clause of the Indiana Constitution, the COA affirmed the trial court’s dismissal of Robertson’s claim as untimely.

 

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