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COA: personal injury action should be allowed to proceed

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The Indiana Court of Appeals examined how the 120-day time limit under Indiana Trial Rule 15(C) on amending a complaint to substitute a party interacts with the two-year statute of limitations for personal injury claims, and held that the 120-day time limit can’t be allowed to operate prematurely to bar a claim when the statute of limitations is still running.

In Samuel D. Raisor, et al. v. Edward O. Carter, et al., No. 49A05-1010-CT-629, the issue was whether Samuel and Christy Raisor should have been allowed to amend their original personal injury complaint to include the correct owner of the bar where Samuel was allegedly assaulted by an underage patron. The Raisors brought the personal injury claim within the two-year statute of limitations, but made the amendment to include the correct bar owner – Jimmie’s Raceway Pub Inc. – after the 120-day time limit under T.R. 15(C). The Raisors didn’t learn who the correct owner was until 23 months after the alleged assault due to incorrect addresses and information listed for the pub owner.  

The trial court granted Jimmie’s motion to dismiss, finding the amended complaint was barred because the statute of limitations had expired by the time the amended complaint was filed and the 120-day period for amended complaints to add a new party had expired.

The appellate court reversed, finding that even though the 120-day period to amend the complaint had passed by the time the correct pub owner learned of the suit, the two-year limitation period for the personal injury action hadn’t expired. Because Jimmie’s gained actual knowledge of the lawsuit three weeks before the statute of limitations expired, the owner's defenses weren’t prejudiced, wrote Judge Terry Crone. The judge also pointed out Jimmie’s owner actually discovered the mistake before the Raisors because a mail carrier had delivered a piece of mail addressed to him to the correct address instead of the one listed on the envelope.

Judge Crone noted that T.R. 15(C) gives a party an additional 120 days to give notice of the action, so if someone filed their complaint on the last day under the statute of limitations, they would have 120 days after the expiration date to substitute a proper party defendant.

“The fact that the Raisors filed their original complaint earlier should not work to penalize them. We do not believe that the amended trial rule was designed to shorten the period of time that plaintiffs have to file their claims,” he wrote. “Simply put, where the statute of limitations is still running, the 120-day limit found in Trial Rule 15(C) cannot be permitted to operate prematurely to bar the claim.”

The Court of Appeals also found the trial court erred by denying the Raisors’ T.R. 6(B) motion to extend the T.R.15(C) notice period, but based on their ruling on the statute of limitations issue, the equitable remedy under T.R. 6(B) isn’t necessary, wrote Judge Crone. The judges remanded for further proceedings.
 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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