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IN THE INDIANA COURT OF APPEALS
Cause No. 8804-9612-CV-487
CHRISTOPHER WAYNE SOUTHERLAND, ) In his capacity as Personal Representative for ) Appeal from the Washington the Estate of LARRY SOUTHERLAND ) Circuit Court ) Appellant ) (Plaintiff Below) ) ) vs. ) The Honorable Robert L. Bennett ) Judge WILLIAM HENRY HAMMOND, ) LARRY SALKELL, CHAD CRUMPTON, ) Cause No. 88C01-9602-CT-010 WILLIAM CRUMPTON, JR., WILLIAM ) CRUMPTON, SR., LISA CRUMPTON, MR. ) & MRS. JOHN HARVEY, and ) WANDA PALMER ) ) Appellees ) (Defendants Below) )
APPELLANT'S BRIEF
Derrick H. Wilson MATTOX & MATTOX 420 Elsby Building P.O. Box 1203 New Albany, IN 47151-1203 (812) 944-8005 - Phone (812) 944-2255 - Fax TABLE OF CONTENTS
Page
TABLE OF CONTENTS i
TABLE OF CITATIONS AND AUTHORITIES ii
I. STATEMENT OF THE ISSUES 1
II. STATEMENT OF THE CASE 2
III. STATEMENT OF THE FACTS 3
IV. SUMMARY OF THE ARGUMENT 5
V. ARGUMENT 8
A. THE TRIAL COURT ERRED IN FAILING TO TOLL THE STATUTE OF LIMITATIONS UNDER THE DISABILITY STATUTE, I.C. 34-1-2-5
B. THE TRIAL COURT ERRED IN FAILING TO TOLL THE STATUTE OF LIMITATIONS UNDER THE FRAUDULENT CONCEALMENT STATUTE, I.C. 34-1-2-9 C. THE TRIAL COURT ERRED IN IMPLICITLY FINDING THAT I.C. 34-1-1-2 WAS A NON-CLAIM STATUTE, NOT SUBJECT TO WAIVER OR ESTOPPEL PRINCIPLES
D. THE TRIAL COURT ERRED IN GRANTING THE MOTION TO DISMISS BASED UPON PUBLIC POLICY CONSIDERATIONS
VI. CONCLUSION 27
-i- TABLE OF CITATIONS AND AUTHORITIES
CASES
Barton-Ballow Co. v. Wilburn , 556 N.E.2d 324 (Ind. 1990) 9
Board of Com'rs of Warrick County , 619 N.E.2d 587 (Ind. App. 1993) 25
Bocek v. Interinsurance Exchange , 369 N.E.2d 1093 (1977) 9, 10, 22
Bunker v. National Gypsum Co ., 441 N.E.2d 8 (Ind. 1982) 20
Chaiken v. Eldon Emmor & Co., Inc ., 597 N.E.2d 337 (Ind. App. 1992) 14
City of Huntington v. Phoenix Natural Resources, Inc ., 625 N.E.2d 472 (Ind. App. 1993) 25
Colbert v. Waitt , 445 N.E. 2d 1000, 1003 (Ind. App. 1982) 14
Collins v. Day , 644 N.E.2d 72 (Ind. 1994) 11, 12
Community Hospital of Anderson v. McKnight , 493 N.E.2d 775 (Ind. 1986) 14, 22
Cox v. American Aggregates Corporation , 667 N.E.2d 215 (Ind. App. 1996) 17
Cundiff v. Daviess County Hospital , 656 N.E.2d 298 (Ind. App. 1995) 10, 11
Fager v. Hundt , 610 N.E.2d 246 (Ind. 1993) 9
First Interstate Bank v. Piper Aircraft , 744 P.2d 1197, 1199 (Colo. 1987) 18, 19, 24
Frady v. Hedgcock , 497 N.E.2d 620 (Ind. App. 1986) 14
Gayheart v. Newmand Foundry Co., Inc ., 393 N.E.2d 163 ( Ind. 1979) 17
General Motors Corporation v. Arnaud , 418 N.E.2d 546 (Ind. App. 1981) 22
Guthrie v. Wilson , 240 Ind. 188, 162 N.E.2d 79 (1959) 10
Honda Motor Co. Ltd. v. Parks , 485 N.E.2d 644 (Ind. App. 1985) 22
Huff v. Biomet, Inc ., 654 N.E. 2d 830 (Ind. App. 1995) 8
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Hughes v. Glaese , 659 N.E.2d 516 (Ind. 1995) 14
In re E.I. , 653 N.E.2d 503 (Ind. App. 1995) 25
Johnson v. St. Vincent , 273 Ind. 374, 404 N.E.2d 585 (Ind. 1980) 11
Ledbetter v. Hunter , 652 N.E.2d 543 (Ind. App. 1995) 12
Martin v. Rinck , 491 N.E.2d 556 (Ind. App. 1986) 14, 15, 22
Martin v. Robert Richey , 53A04-9603-CV-104 13
O'Neal v. Throop , 596 N.E.2d 984 (Ind. App. 1992) 14
Orr v. Turco Manufacturing Co ., 44 N.E.2d 1300 (Ind. App. 1985) 9
Peru & Indianapolis Railroad Company v. Bradshaw , 6 Ind. 146 (1855) 8
Pyle v. White , 796 F.Supp. 380 (S.D. Ind. 1992) 14
Runde v. Vigus Realty, Inc ., 617 N.E.2d 572 (Ind. App. 1993) 8
Spoljaric v. Pangan , 466 N.E.2d 37 (Ind. App. 1984) 20
Sutton v . Sanders , 556 N.E.2d 1362 (Ind. App. 1990) 14
Thomspon v. Ferdinand Sesquicentennial Committee, Inc ., 637 N.E.2d 178 (Ind. App. 1994) 24
Warrick Hospital Inc. v. Wallace , 435 N.E.2d 263 (Ind. App. 1982) 15, 22
Wawrinchak v. United States Steel Corp., Gary Workers , 267 N.E.2d 395 (Ind. App. 1971) 16
Weinberg v. Bess , 638 N.E.2d 842 (Ind. App. 1994) 14
STATUTES
I.C. 33-1-1.5-5 8
I.C. 34-1-1-2 8, 10, 14, 16, 18, 19, 24
I.C. 34-1-2-5 5, 8, 9, 13
I.C. 34-1-2-9 5, 13-15
-iii- I. STATEMENT OF THE ISSUES
A. WHETHER THE TRIAL COURT ERRED IN FAILING TO TOLL THE STATUTE OF LIMITATIONS UNDER THE DISABILITY STATUTE.
B. WHETHER THE TRIAL COURT ERRED IN FAILING TO TOLL THE STATUTE OF LIMITATIONS UNDER THE FRAUDULENT CONCEALMENT STATUTE, I.C. 34-1-2-9. C. WHETHER THE TRIAL COURT ERRED IN IMPLICITLY FINDING THAT I.C. 34-1-1-2 WAS A NON-CLAIM STATUTE, NOT SUBJECT TO WAIVER OR ESTOPPEL PRINCIPLES.
D. WHETHER THE TRIAL COURT ERRED IN GRANTING THE MOTION TO DISMISS BASED UPON PUBLIC POLICY CONSIDERATIONS.
II. STATEMENT OF THE CASE
On May 5, 1996 the Defendants William Crumpton, Jr., Lisa Crumpton and Chad Crumpton filed a Motion to Dismiss. On June 4, 1996, Defendants Ronnie Paul Harvey and Rita Harvey filed a Motion for Judgment on the Pleadings together with a Memorandum in Support of Motion for Summary Judgment. (Record at 51). On June 12, 1996 Defendant William Crumpton, Sr., by counsel, filed a Motion for Judgment on the Pleadings and a Motion to Dismiss. (Record at 55). On June 24, 1996, the Plaintiff filed their Response to Defendant's Motion to Dismiss and Judgment on the Pleadings and Brief in Support of Plaintiff's Response to Defendant's Motion to Dismiss and Judgment on the Pleadings. (Record at 63). On July 1, 1996, the Defendants Ronnie Paul Harvey and Riva Marie Harvey filed their Reply to Plaintiff's Response to said Defendant's Motion for Judgment on the Pleadings. (Record at 65). On July 29, 1996, the Washington Circuit Court heard evidence on this cause. By Order dated July 31, 1996, the Court granted the Defendants' Motion to Dismiss and Motion for Judgment on the Pleadings. The order stated: This cause came on for hearing on the defendants' Motion to Dismiss and Motion for Summary Judgment on the Pleadings. The Court having considered the motions and arguments of counsel now finds that the motions should be granted as the complaint herein was filed on February 14, 1996 alleging wrongful death from an act that took place on May 19, 1993, and that I.C. 34-1-1-2 requires such action be brought within two years of the decedent's death.
IT IS, THEREFORE, ORDERED that the pending motions are hereby granted and this cause is ordered dismissed. (Record at 83).
III. STATEMENT OF THE FACTS On May 19, 1993 Henry Hammond brutally killed Larry Southerland with a gunshot wound to his head as Southerland sat and watched television in the privacy of his own home located at Rt. 1 Pekin. (Record at 104). Three juveniles, William Henry Hammond, Larry Salkell and Chad Crumpton, conspired to kill Larry Southerland. (Record at 104). On the day of the murder, Henry Hammond took the murder weapon from the home of William Crumpton, Sr., Larry Salkell's grandfather. William Henry Hammond obtained the ammunition used in the murder of Mr. Southerland from William Henry Hammond's home(1) . (Record at 105). On February 13, 1996, the Washington Circuit Court appointed Christopher Wayne Southerland, Larry's son, as personal representative of Larry Southerland's estate. Christopher Southerland was 16 years of age at the time of his father's death. Christopher Southerland filed a complaint under a wrongful death cause of action shortly thereafter. The Defendants' attorneys asserted that the wrongful death statute specified that the action shall be commenced by the personal representative of the decedent within two years and filed motions to dismiss and a motions for a judgment on the pleadings on this ground. (Record at 55, 57,74). At a hearing on this matter held on July 29, 1996, Southerland's counsel informed the Court the State filed criminal charges against the juveniles almost two years -- March 1995 -- after Southerland's murder. (Record at 89). Some time after learning of the police department's identification of the three murderers Chris Southerland approached counsel and discussed the possibility of filing civil charges. (Record at 90). At the hearing on the Motion to Dismiss and Motion for Judgment on the Pleadings counsel for Chris Southerland asserted several reasons which would justify extending the two-year time limit on wrongful death actions. First, Mr. Southerland requested the application of the discovery rule. Second, Mr. Southerland asserted application of the doctrine of fraudulent concealment. (Record at 90). The Court granted the motion to dismiss and the motion for judgment on the pleadings. (Record at 83).
IV. SUMMARY OF THE ARGUMENT The Appellant respectfully submits that the Trial Court erred in granting the Defendant's Motion for Dismissal and Judgment on the Pleadings and that reversal of the Trial Court's ruling is justified for the following reasons: A. THE TRIAL COURT ERRED IN FAILING TO TOLL THE STATUTE OF LIMITATIONS UNDER THE DISABILITY STATUTE, I.C. 34-1-2-5 .
The legislature passed the disability tolling statute, I.C. 34-1-2-5, 28 years after the legislature passed the Indiana Wrongful Death Act. The legislature could, but failed, to exclude the wrongful death act from the purview of the disability tolling statute. The legislature has, on various occasions, enacted legislation which expressly precludes the application of I.C. 34-1-2-5. The two year statute of limitations, I.C. 3-4-1-2, as applied to children also denies a child equal protection of the laws under the Indiana State Constitution. The trial court's interpretation singles out one group of persons, minor dependents of deceased individuals, who do not receive a benefit allowed to all other members of the class; namely, the advantage of the minority tolling statute. This distinction is not rationally based and is a violation of Article I, Section 23 of the Indiana Constitution.. B. THE TRIAL COURT ERRED IN FAILING TO TOLL THE STATUTE OF LIMITATIONS UNDER THE FRAUDULENT CONCEALMENT STATUTE, I.C. 34-1-2-9 .
Alternatively, the trial court erred in failing to toll the statute of limitations under the fraudulent concealment statute, I.C. 34-1-2-9. The legislature passed this statute after it passed the Wrongful Death Act. The purpose of the statute is to deny the tortfeasor the benefit of his own fraudulent activity which denies a plaintiff of the information necessary to timely bring an action. In the absence of legislative intent that shows that this provision does not apply to wrongful death cases, the trial court erred in failing to apply this statute to the facts of the present case. To hold otherwise would create an irrational situation where a person who merely injures someone and then hides his action would not receive the benefit of his misconduct while a person who actually killed the victim would be entitled to actively conceal his involvement in the underlying crime. C. THE TRIAL COURT ERRED IN IMPLICITLY FINDING THAT I.C. 34-1-1-2 WAS A NON-CLAIM STATUTE, NOT SUBJECT TO WAIVER OR ESTOPPEL PRINCIPLES .
The language of the Indiana Wrongful Death Act is ambiguous and it should be interpreted in favor of the Plaintiff's cause of action. The pertinent portion of the Indiana Wrongful Death Statute states that the action shall be commenced by the personal representative of the decedent within two years, but fails to state the triggering event for the two year limit. The legislature could have intended this to mean within two years of knowledge of the cause of death, two years from the appointment of the personal representative, or two years after the death occurred. Southerland is unable to find any legislative intent which clarifies the triggering event for the two year requirement. In the absence of clear language to the contrary, Plaintiff should be allowed to bring the present action. Even if the statute is interpreted to create a two year time limit, a two year non-claim statute does not preclude judicial recognition of the doctrine of fraudulent concealment. One Court has held that virtually identical language to that passed by the Indiana legislature suggests the creation of a statute of limitation rather than a non-claim statute. D. THE TRIAL COURT ERRED IN GRANTING THE MOTION TO DISMISS BASED UPON PUBLIC POLICY CONSIDERATIONS .
Southerland also respectfully submits that public policy considerations warrant an exception to the Wrongful Death Statute where, through no fault of Plaintiff, Plaintiff is unable to determine sufficient facts to bring the action within the two year limitation period. It is perfectly reasonable to apply the two year limit if the Plaintiff was at fault in not filing the action or is guilty of other dilatory conduct. The Indiana Courts have not addressed the situation where Defendants in a criminal case conceal their participation in illegal acts to prevent their prosecution and, as a result, denied the Plaintiff the reasonable chance to bring a wrongful death case. To hold otherwise, would be to encourage cit
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