ILNews

Court rules on tort claims and wrongful death

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court tackled the issue of the interaction of the statute of limitations provision under the state's Wrongful Death Act and the statute of limitations provision for an underlying substantive tort claim in two opinions released Dec. 24. In both opinions, the high court relied on its ruling in Ellenwine v. Farley, 846 N.E.2d 657, 666 (Ind. 2006).

In Therese Newkirk, personal representative of the estate of Martha O'Neal, deceased v. Bethlehem Woods Nursing and Rehabilitation Center, LLC, No. 90S05-0812-CV-168, the Supreme Court affirmed the trial court's grant of summary judgment in favor of Bethlehem Woods in the estate's complaint under the WDA after Martha O'Neal died. O'Neal went to Bethlehem Woods for rehab following surgery and was the victim of medical malpractice. She died in November 2001. More than two years after the medical negligence occurred, but within two years of her death, the estate filed the complaint alleging Bethlehem providing negligent medical care that led to O'Neal's death.

Citing Ellenwine, the Supreme Court ruled the wrongful death claim was required to be filed within two years of the malpractice. The provisions of the Medical Malpractice Act don't apply in this case because Bethlehem doesn't meet the applicable qualifications and the claim is subject to the provisions of the state's Professional Services Statute. Ellenwine still applies because the substantive tort claim underlying the wrongful death action is precisely the same as it was in the Ellenwine scenario, wrote Justice Frank Sullivan. If a death is caused by malpractice, the malpractice claim terminates at the patient's death and a wrongful death claim must be filed within two years of the occurrence of the malpractice. O'Neal's wrongful death claim should have been filed within two years of the occurrence of the malpractice since her death is alleged to have been caused by the malpractice, Justice Sullivan wrote.

In Technisand Inc. v. Jessie Melton, personal representative of the estate of Patty Melton, deceased, No. 30S01-0801-CV-28, the Supreme Court ruled Jessie Melton couldn't use the Indiana Products Liability Act's statute of limitations as an alternative to the statute of limitations within the WDA. Melton's wife, Patty, developed a form of leukemia and died in July 2002. Patty may have been exposed to a carcinogen at work through a resin-coated sand made by Technisand. In February 2005, Melton added Technisand as a defendant in his lawsuit against Patty's employer and another company.

The trial court denied Technisand's motion for summary judgment. The Indiana Court of Appeals held the PLA provided the relevant limitations period for Melton to file his claim against Technisand. However, since Patty died from personal injuries allegedly caused by Technisand, Melton's claim was a claim for wrongful death once Patty died, wrote Justice Sullivan. Again looking to Ellenwine, the high court reversed the denial of Technisand's motion for summary judgment.

The injuries forming the basis of Melton's substantive tort claim caused his wife's death and pursuant to Indiana's Survival Statute, her products liability claim against the company ended at her death, leaving only the WDA claim. The WDA requires an action be filed within two years of the decedent's date of death, and since Melton didn't bring the suit against Technisand within two years, his suit wasn't timely filed.

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Oh my lordy Therapist Oniha of the winexbackspell@gmail.com I GOT Briggs BACK. Im so excited, It only took 2days for him to come home. bless divinity and bless god. i must be dreaming as i never thoughts he would be back to me after all this time. I am so much shock and just cant believe my eyes. thank you thank you thank you from the bottom of my heart,he always kiss and hug me now at all times,am so happy my heart is back to me with your help Therapist Oniha.

  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

ADVERTISEMENT