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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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