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Judges affirm complaint is time-barred

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Although a trial court shouldn’t have adhered to its local rule because it failed to achieve “the ultimate end of orderly and speedy justice,” the Indiana Court of Appeals affirmed the lower court’s finding that a woman’s claim against her deceased husband’s former employer was time-barred.

Sharon Gill sued Evansville Sheet Metal Works Inc. following her husband’s death, claiming he had been exposed to asbestos and died from an asbestos-related disease. ESMW worked as a contractor for her husband’s employer and materials containing asbestos were present or used.

ESMW filed a motion for summary judgment, claiming the Construction Statute of Repose barred the complaint. The trial court initially denied in part the motion, but then granted summary judgment in favor of ESMW.

Before ruling on the case, the appellate judges paused to note their concern with the application of the Marion Circuit Court’s mass tort litigation rules to the case. Under those local rules, a case that is neither exigent nor set for trial is considered stayed, as is the case with this suit. Parties can file documents in a stayed case, but response time doesn’t begin until a case is set for trial, except under Local Rule 714. This rule lets a party in a stayed case file a summary judgment motion prior to discovery, which ESMW did.

In Sharon Gill, on her own behalf and on behalf of the estate of Gale Gill, deceased v. Evansville Sheet Metal Works, Inc., No. 49A05-0912-CV-699, the judges cautioned a trial court to not “blindly adhere” to all of its local rules, and keep in mind the ultimate end of orderly and speedy justice.

For Gill’s complaint to be barred by the Construction Statute of Repose, ESMW had to designate evidence showing that its work constituted “an improvement to real property” and the complaint was brought more than 10 years after the date of substantial completion of the improvement.

But Local Rule 714 prevented the appellate court from determining the scope of the work performed by ESMW because the motion for summary judgment was filed prior to discovery.

“A proper analysis of the statutory language ‘improvement to real estate’ necessitated detailed discovery. We believe that the trial court should not have adhered to the local rule as it failed to achieve ‘the ultimate end of orderly and speedy justice,’” wrote Judge Patricia Riley. “In sum, this cause did not lend itself to the application of local rule 714.”  

However, the trial court granted the motion for summary judgment by finding ESMW’s work was completed more than 10 years before Gill filed her complaint. The designated evidence showed she filed her suit more than 10 years after the substantial completion of the project. Allowing her to proceed with a claim against ESMW now would create an open-ended liability which CSOR was designed to prevent.

“Thus, regardless whether there was an improvement to real estate, Sharon brought her claim outside the ten-year period stipulated in the CSOR and therefore, her claim is barred,” wrote the judge.
 

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  1. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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