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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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  4. JLAP and other courtiers ... Those running court systems, have most substance abuse issues. Probably self medicating to cover conscience issues arising out of acts furthering govt corruption

  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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