Preview:

FOR PUBLICATION
ATTORNEYS FOR APPELLANT: THOMAS E. HASTINGS NICHOLAS F. BAKER The Hastings Law Firm Indianapolis, Indiana ATTORNEYS FOR APPELLEES: JULIA BLACKWELL GELINAS MAGGIE L. SMITH Frost Brown Todd LLC Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Dec 29 2011, 9:13 am

IN THE COURT OF APPEALS OF INDIANA
NATALIA ROBERTSON, Personal Representative of the Estate of JOHN LEE CUNNINGHAM, III, Deceased, ) ) ) ) ) Appellant-Plaintiff, ) ) vs. ) ) GENE B. GLICK COMPANY, INC., THE ) WOODS OF EAGLE CREEK. BRIARWOOD ) APARTMENTS, LP and BRIARWOOD ) APARTMENTS II, LP, ) ) Appellees-Defendants. )

CLERK

No. 49A05-1104-CT-158

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Heather Welch, Judge Cause No. 49D12-1009-CT-39591

December 29, 2011

OPINION - FOR PUBLICATION ROBB, Chief Judge

Case Summary and Issues John Cunningham was shot and killed while at his girlfriend's apartment complex. More than two years after his death, Natalia Robertson, acting as personal representative of the Estate of John Cunningham, brought a wrongful death claim against the apartment complex and its parent companies. The trial court dismissed the claim, concluding it was untimely because Indiana's General Wrongful Death Act requires that a wrongful death claim be brought within two years of the decedent's death. Robertson raises one issue for our review, which we expand and restate as three: 1) whether Indiana Code section 34-11-6-1 should apply to Indiana's General Wrongful Death Act; 2) whether Indiana's wrongful death statutes violate the Privileges and Immunities Clause, Article 1, Section 23 of the Indiana Constitution; and 3) whether Indiana's wrongful death statutes violate the Due Course of Law Clause, Article 1, Section 12 of the Indiana Constitution. Concluding section 34-11-6-1 does not apply to the General Wrongful Death Act and that our wrongful death statutes do not violate the Privileges and Immunities Clause or Due Course of Law Clause of the Indiana Constitution, we affirm the trial court's dismissal of Robertson's claim as untimely. Facts and Procedural History1 In July 2008, John Cunningham was visiting his girlfriend, April Wills, at her apartment in "The Woods of Eagle Creek" apartment complex when April's ex-husband, Carl Wills, entered the apartment, shot and killed Cunningham, and kidnapped April and the

We heard oral argument on December 6, 2011 at the Indiana Court of Appeals Courtroom in Indianapolis. We thank counsel for their capable advocacy.

1

2

Wills' daughter. When subsequently confronted by police, Carl Wills shot and killed April and then himself. Cunningham was survived by his eleven-year-old daughter, J.C., who is autistic. More than two years after the death of Cunningham, J.C.'s mother, Natalia Robertson, opened an Estate for Cunningham and requested that the probate court appoint her personal representative of the Estate. After her appointment, Robertson filed a complaint based in tort against The Woods of Eagle Creek apartment complex and its parent-operating companies: Gene B. Glick Company, Inc; Briarwood Apartments, LP; and Briarwood Apartments II, LP.2 The defendants moved to dismiss, arguing the complaint was filed after the two-year time limitation contained in Indiana's General Wrongful Death Act, Indiana Code section 3423-1-1. Robertson argued the general tolling statute applicable to statutes of limitation, Indiana Code section 34-11-6-1, which tolls a cause of action when the party who may bring the action is legally disabled, applied to Robertson's wrongful death action filed on behalf of the Estate of John Cunningham because the primary beneficiary of the action, J.C., was disabled. The defendants responded that the two-year time period is a condition precedent that cannot be altered by the tolling statute, and that, even if it could be altered by the tolling statute, the disability of a beneficiary is not relevant where the claim must be brought by a personal representative.

Briarwood Apartments and Briarwood Apartments II were not named as defendants in Robertson's original September 2010 filing, but were added after Robertson's December 2010 motion for leave to add parties and to file a second amended complaint.
2

3

The trial court ultimately agreed with the defendants, concluding, based on Southerland v. Hammond, 693 N.E.2d 74 (Ind. Ct. App. 1998), that the two-year period given for wrongful death actions is not subject to tolling.3 The trial court noted that the plaintiff in the action is not J.C., but rather, the plaintiff is Robertson, who suffers from no disabilities, acting as personal representative of Cunningham's estate. Since Robertson suffers no legal disability, the trial court concluded Indiana Code section 34-11-6-1 was inapplicable and Robertson's complaint was untimely. Robertson now appeals. Discussion and Decision I. Standard of Review A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind. 2007). Thus, our standard of review of a trial court's grant or denial of a motion to dismiss is de novo. In re Guardianship of French, 927 N.E.2d 950, 955 (Ind. Ct. App. 2010), trans. denied. We accept as true the facts alleged in the complaint and consider the pleadings in the light most favorable to the plaintiff, but we also draw every reasonable inference in favor of the nonmoving party. Id. A motion to dismiss for failure to state a claim upon which relief can be granted will succeed only if it is clear on the face of the complaint that the complaining party is not entitled to relief. Id. "In considering a constitutional challenge to a statute, we presume that the statute is valid, and place the burden upon the party challenging it to clearly overcome the presumption

3

The trial court originally denied the defendants' motion to dismiss, but after allowing a motion to

4

by a contrary showing." Chamberlain v. Parks, 692 N.E.2d 1380, 1382 (Ind. Ct. App. 1998), trans. denied. "The party challenging the constitutionality of a statute based on a purported improper classification must negate every reasonable basis for the classification" and "all reasonable doubts must be resolved in favor of a statute's constitutionality." Id. II. Indiana's Wrongful Death Statutes The Indiana Code currently includes three statutes that give rise to wrongful death causes of action: section 34-23-1-1, the General Wrongful Death Act ("GWDA"); section 3423-1-2, the Adult Wrongful Death Act ("AWDA"); and section 34-23-2-1, the Child Wrongful Death Act ("CWDA"). The GWDA was originally enacted in 1881 under a different Indiana Code section, 34-1-1-2, and amended several times through 1998 when it was repealed and the current section was enacted. See McCabe v. Comm'r, Indiana Dept. of Ins., 949 N.E.2d 816, 818 (Ind. 2011). The current GWDA provides, in pertinent part: . . . When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years, and the damages shall be in such an amount as may be determined by the court or jury, including, but not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission. Further, the damages awarded under the GWDA "inure to the exclusive benefit of the widow or widower . . . and to the dependent children, if any, or dependent next of kin, . . . ." Ind. Code

Download Natalia Robertson, Personal Rep. of the Estate of John Lee Cunningham, III v. Ge

Indiana Law