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. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

ADVERTISEMENT