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Court rules on tort claims and wrongful death

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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.

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  1. My husband financed a car through Wells Fargo In dec 2007 and in Jan 2012 they took him to court to garnish his wages through a company called autovest llc . Do u think the statue of limitations apply from the day last payment was received or from what should have been the completion of the loan

  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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