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Fraudulent concealment tolls Wrongful Death Act’s limitations period

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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.

 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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