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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. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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