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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. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  2. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  3. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  4. Why do so many lawyers get away with lying in court, Jamie Yoak?

  5. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

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