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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. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

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  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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