ILNews

COA: personal injury action should be allowed to proceed

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  5. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

ADVERTISEMENT