ILNews

Fraudulent concealment tolls Wrongful Death Act’s limitations period

Back to TopCommentsE-mailPrintBookmark and Share

The Wrongful Death Act’s two-year limitations period is tolled by fraudulent concealment, and plaintiffs whose wrongful death claims have been fraudulently concealed beyond the act’s limitations period have a full two years after the concealment is or should be discovered with reasonable diligence to file their claims, the Indiana Court of Appeals held in a case of first impression.

Venita Hargis was a resident of The Good Samaritan Home, a nursing home in Evansville, in November 2006 when the staff told her daughter Julia Luker that Hargis fell and had to go to the hospital. The explanation was plausible because Hargis suffered from “mini-strokes.” She died Nov. 26, 2006, from a head injury from the alleged fall. In November 2009, a former employee of the nursing home told another daughter, Peggy McGee, that Hargis had been attacked by another resident, which caused her fall and head injury that led to her death.

An estate was opened for Hargis in December 2010 and the plaintiffs filed their complaint under the Wrongful Death Act Oct. 27, 2011. They alleged Good Samaritan fraudulently concealed the true cause of Hargis’ death. Good Samaritan fought the suit, arguing the plaintiffs waited more than two years after Hargis’ death to file the complaint.

The trial court concluded that the WDA’s two-year deadline had been equitably tolled but that the plaintiffs failed to file their complaint within a reasonable time. The judge granted summary judgment for Good Samaritan.

In Virginia E. Alldredge and Julia A. Luker, as Co-Personal Representatives of the Estate of Venita Hargis v. The Good Samaritan Home, Inc., 82A01-1206-CT-249, the appellate court agreed with the trial court’s reasoning that the deadline was tolled, but found fraudulent concealment allows plaintiffs a full two years after the concealment is discovered to file their wrongful death claims.

“We see no reason to impose a shorter period of time in the wrongful death context when the reason for the plaintiff’s failure to discover the action within the WDA’s two-year limitations period is the fault of the defendant rather than simply the result of a medical condition’s long latency period,” Judge John Baker wrote. “In short, it is abhorrent to think that we would treat people who have been intentionally defrauded regarding their loved one’s deaths worse than others … where the defendant’s misfeasance has been undiscovered merely on account of nature’s own time frame.”

A decedent’s personal representative shall be allowed to bring the action within the lesser of two years from the date of the discovery of the cause of the action or two years from the discovery of facts that, in the exercise of reasonable diligence, should lead to the discovery of the wrongful act or omission that resulted in the death.

In coming to its conclusion, the judges avoided holding that the WDA’s two-year statute of limitations period is unconstitutional as applied to the plaintiffs – as they argued – under the Indiana or U.S. Constitutions.

The case is remanded for continuation of the litigation.

 

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. Hmmmmm ..... How does the good doctor's spells work on tyrants and unelected bureacrats with nearly unchecked power employing in closed hearings employing ad hoc procedures? Just askin'. ... Happy independence day to any and all out there who are "free" ... Unlike me.

  2. Today, I want to use this opportunity to tell everyone about Dr agbuza of agbuzaodera(at)gmail. com, on how he help me reunited with my husband after 2 months of divorce.My husband divorce me because he saw another woman in his office and he said to me that he is no longer in love with me anymore and decide to divorce me.I seek help from the Net and i saw good talk about Dr agbuza and i contact him and explain my problem to him and he cast a spell for me which i use to get my husband back within 2 days.am totally happy because there is no reparations and side-effect. If you need his help Email him at agbuzaodera(at)gmail. com

  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

ADVERTISEMENT