ILNews

Judges affirm complaint is time-barred

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

ADVERTISEMENT