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

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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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