                                                            FILED
                                                          Jan 31 2013, 9:05 am
FOR PUBLICATION
                                                                 CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

ROBERT D. KING, JR.                              ADAM E. GLASS
DAVID R. THOMPSON                                DANNY E. GLASS
The Law Office of Robert D. King, Jr., P.C.      Law Firm of Fine & Hatfield, P.C.
Indianapolis, Indiana                            Evansville, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

VIRGINIA E. ALLDREDGE AND                        )
JULIA A. LUKER, AS CO-PERSONAL                   )
REPRESENTATIVES OF THE                           )
ESTATE OF VENITA HARGIS,                         )
                                                 )
       Appellants-Plaintiffs,                    )
                                                 )
              vs.                                )       No. 82A01-1206-CT-249
                                                 )
THE GOOD SAMARITAN HOME, INC.,                   )
                                                 )
       Appellee-Defendant.                       )


            APPEAL FROM THE VANDERBURGH SUPERIOR COURT NO. 3
                   The Honorable Robert J. Tornatta, Presiding Judge
                          Cause No. 82D03-1110-CT-5314



                                      January 31, 2013

                                OPINION – FOR PUBLICATION

BAKER, Judge
       In this case, we consider an issue of first impression, namely, whether and to what

extent the doctrine of fraudulent concealment tolls the two-year deadline for filing claims

contained within Indiana’s Wrongful Death Act (the “WDA”).

       Virginia E. Alldredge and Julia A. Luker, as co-personal representatives of the

Estate of Venita Hargis (collectively, “the Plaintiffs”), filed a wrongful death complaint

against The Good Samaritan Home, Inc. (“Good Samaritan”) twenty-three months after

learning that Good Samaritan had allegedly fraudulently concealed the nature of Hargis’s

death. Concluding that the WDA’s two-year deadline had been equitably tolled but that

the Plaintiffs nevertheless failed to file their complaint within a reasonable time, the trial

court granted Good Samaritan’s motion for summary judgment.

       The Plaintiffs argue that the two-year time frame required by the WDA for the

filing of claims is a statute of limitations, not a condition precedent to the filing of a

wrongful death claim, and that Indiana Code section 34-11-5-1 (the “Fraudulent

Concealment Statute”) should have applied to toll the statute of limitations such that they

had a full two years to file their complaint after learning of Good Samaritan’s fraudulent

concealment. Furthermore, the Plaintiffs argue that the reasonable time standard used by

the trial court violates equal protection principles and that public policy concerns require

a uniform standard for determining when the statute of limitations runs after it has been

tolled by fraudulent concealment.

       We conclude that the WDA’s two-year limitations period is in fact tolled by

fraudulent concealment and that plaintiffs whose wrongful death claims have been

                                              2
fraudulently concealed beyond the WDA’s limitations period have a full two years after

the concealment is or should be discovered with reasonable diligence in which to file

their claims. Accordingly, we affirm the trial court’s judgment in part and reverse in part.

                                             FACTS1

       In November 2006, Hargis was a resident at a nursing home owned and operated

by Good Samaritan in Evansville. On November 17, 2006, a nurse employed by Good

Samaritan told Luker, Hargis’s daughter, that Hargis had fallen at the nursing home and

that she was being taken to the hospital because she had started vomiting a few hours

after the fall. Because Hargis sometimes suffered from transient ischemic attacks, or

“mini-strokes,” which had caused her to fall in the past, Luker and the rest of Hargis’s

family believed Good Samaritan’s story that Hargis had fallen. Appellants’ App. p. 40.

On November 26, 2006, Hargis died from a head injury purportedly caused by the fall.

       On November 24, 2009, nearly three years after Hargis’s death, a former

employee of Good Samaritan told Hargis’s daughter Peggy McGee that Hargis’s head

injury had not been caused by a simple fall as they had previously been led to believe.

The former employee explained that Hargis had actually been attacked and pushed to the

floor by another resident of the nursing home, and the head injury that resulted in

Hargis’s death was caused during this attack.

       On December 22, 2010, an estate was opened for Hargis for the sole purpose of

pursuing a wrongful death claim.              The Plaintiffs were named her co-personal
1
 We heard oral argument in this case in Indianapolis on January 9, 2013. We commend counsel for their
able presentations.
                                                 3
representatives. On October 27, 2011, the Plaintiffs filed their complaint, alleging that

Hargis’s death had been proximately caused by the negligence of Good Samaritan and

that Good Samaritan had fraudulently concealed the true cause of Hargis’s death.

       In lieu of an answer, Good Samaritan filed a motion to dismiss the suit with

prejudice because, it claimed, the Plaintiffs’ complaint failed to state a claim upon which

relief could be granted as it was filed more than two years after Hargis’s death. In

support of its motion, Good Samaritan attached a copy of Hargis’s certificate of death

and a copy of the probate court docket which showed the date on which Hargis’s estate

was opened and her personal representatives named.

       Upon motion by the Plaintiffs, the trial court treated Good Samaritan’s motion to

dismiss as a motion for summary judgment. In its order granting Good Samaritan’s

motion without a hearing, the trial court acknowledged its agreement with the Plaintiffs

that fraudulent concealment was applicable to the case. However, citing Southerland v.

Hammond, 693 N.E.2d 74 (Ind. Ct. App. 1990), the trial court stated that the two-year

timeframe for filing wrongful death claims “is not a statute of limitations, but a condition

precedent to the existence of the claim.” Appellants’ App. p. 8. The trial court further

found that, according to Southerland, fraudulent concealment only creates “an equitable

exception” that allows a party to institute an action “within a reasonable time” after

learning information that would lead to the discovery of the truth. Id. Noting that the

Plaintiffs waited a year after discovering the truth to open Hargis’s estate and nearly two



                                             4
years to file their complaint, the trial court found that the Plaintiffs’ claim was barred

because they had waited an unreasonable amount of time to bring the claim.

       The Plaintiffs filed a motion to correct error, claiming that the trial court should

have applied the Fraudulent Concealment Statute, which they claimed provides for a new

full two-year limitations period after the concealment is discovered, instead of the

equitable doctrine of fraudulent concealment, which they admitted provides only for the

filing of a claim within a reasonable time after discovery. Moreover, the Plaintiffs argued

that because Good Samaritan’s fraudulent concealment lasted beyond the initial deadline

for filing a wrongful death action, the deadline effectively started over, and they were

entitled to file their action at any time within two years of discovery. Finally, the

Plaintiffs argued that the “reasonable time” standard was arbitrary and capricious such

that it made the WDA unconstitutional as applied to them.            Notwithstanding the

Plaintiffs’ arguments, the trial court denied the motion to correct error on May 3, 2012.

The Plaintiffs now appeal.

                             DISCUSSION AND DECISION

       Summary judgment is proper only when there is no genuine issue of material fact,

and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). In

our review of a summary judgment decision, we view the pleadings and the designated

materials in a light most favorable to the non-moving party. LCEOC, Inc. v. Greer, 735

N.E.2d 206, 208 (Ind. 2000). However, when the appellant claims only an error of law,



                                            5
we review the trial court’s summary judgment decision de novo. Spangler v. Bechtel,

958 N.E.2d 458, 461 (Ind. 2011).

      Indiana first enacted a wrongful death statute in 1852. Durham ex rel. Estate of

Wade v. U-Haul Int’l, 745 N.E.2d 755, 758 (Ind. 2001). Like other wrongful death acts

across the country, this statute was enacted to solve what was perceived to be a gross

inequity in the common law—that because there was no common law action that allowed

a person’s family members to recover when another’s wrongful act or omission killed

their loved one and the person’s own claim died with him, it was often cheaper for a

defendant to kill his victim than to maim him. W. Page Keeton et al., Prosser and Keeton

on Torts 945 § 127 (5th ed. 1984). In its present form, Indiana’s WDA states as follows:

      When the death of one is caused by the wrongful act or omission of
      another, the personal representative of the former may maintain an action
      therefor against the latter, if the former might have maintained an action
      had he or she, as the case may be, lived, against the latter for an injury for
      the same act or omission. . . . [T]he action shall be commenced by the
      personal representative of the decedent within two (2) years[.]

Ind. Code § 34-23-1-1 (emphasis added).

      Good Samaritan urges this Court to hold, consistent with a number of other cases

previously decided by this Court, that the limitations period within the WDA cannot be

tolled because the WDA is a non-claim statute created by the legislature in derogation of

the common law. See Southerland v. Hammond, 693 N.E.2d 74, 77 (Ind. Ct. App. 1998);

Robertson v. Gene B. Glick Co., 960 N.E.2d 179, 184-85 (Ind. Ct. App. 2011), trans.

denied. In Southerland, this Court said:


                                            6
       In Indiana it is well established that the right to maintain an action for
       wrongful death is purely statutory and did not exist at common law. Since
       this right is purely statutory, the two year time period within which an
       action must be commenced is a “condition attached to the right to sue.” In
       Indiana this two year time period is not a statute of a limitation but a
       condition precedent to the existence of the claim. We conclude that the
       wrongful death statute is a non-claim statute, not subject to tolling.

693 N.E.2d at 77. This language was recently repeated in Robertson. 960 N.E.2d at 184.

       Notwithstanding that this explanation has been often repeated by panels of this

Court, the Plaintiffs claim that in light of recent Indiana Supreme Court jurisprudence

characterizing the WDA’s limitations period as a “statute of limitations provision,” our

interpretation has been incorrect.    See Newkirk v. Bethlehem Woods Nursing &

Rehabilitation Center, LLC, 898 N.E.2d 299, 299 (Ind. 2008); Technisand, Inc. v.

Melton, 898 N.E.2d 303, 305 (Ind. 2008). Furthermore, they claim that even if this Court

has previously refused to allow tolling of the WDA’s limitations period in a number of

other cases for reasons of lesser consequence, we should nevertheless allow for tolling to

occur where a wrongful death action has been fraudulently concealed.

       We agree with the Plaintiffs that to deny a decedent’s personal representatives the

ability to file a wrongful death action when such cause of action has been fraudulently

concealed by a defendant beyond the WDA’s two-year limitations period would allow the

defendant to take egregious advantage of his or her own malfeasance.          In Glus v.

Brooklyn Eastern District Terminal, 359 U.S. 231 (1959), the United States Supreme

Court stated:



                                            7
        [W]e need look no further than the maxim that no man may take advantage
        of his own wrong. Deeply rooted in our jurisprudence this principle has
        been applied in many diverse classes of cases by both law and equity courts
        and has frequently been employed to bar inequitable reliance on statutes of
        limitations.

359 U.S. at 232-23. Accordingly, we conclude that the WDA’s limitations period is

tolled when a wrongful death action has been fraudulently concealed by the defendant. 2

        Having reached this conclusion, it becomes necessary in this case to determine

whether the WDA’s limitations period starts anew upon the discovery of the fraudulent

concealment or whether it is tolled only for a reasonable time. The Plaintiffs beseech us

to apply the Fraudulent Concealment Statute, which provides:

        If a person liable to an action conceals the fact from the knowledge of the
        person entitled to bring the action, the action may be brought at any time
        within the period of limitation after the discovery of the cause of action.

Ind. Code § 34-11-5-1.

        Because the original predecessor to this statute was enacted in 1843,3 nine years

before Indiana’s first wrongful death statute was enacted, we are prohibited from directly

applying the statute in the context of the WDA. See Guy v. Schuldt, 236 Ind. 101, 105,

138 N.E.2d 891, 893 (1956) (holding that the Fraudulent Concealment Statute was

inapplicable to medical malpractice cases because the medical malpractice statute was
2
 We note that application of the fraudulent concealment doctrine to the WDA still requires a decedent’s
personal representative to show not only the underlying negligence that resulted in the decedent’s death
but also that the underlying negligence has been fraudulently concealed by the defendant. In such cases
where these issues exist, it may be preferable for the trial court to bifurcate these issues from the issue of
damages in the interest of saving judicial time and resources.
3
  Revised Statutes of the State of Indiana, ch. 40, § 113 (1843). This statute has been through minor edits
in the past 150 years, but the significant language has not been materially altered since its original
adoption.
                                                      8
enacted many years after the Fraudulent Concealment Statute, and thus the Fraudulent

Concealment Statute could not be considered an “exception” to the statute of limitations

set forth in the medical malpractice statute). However, we note that subsequent to Guy,

our Supreme Court has held that where a patient fails to discover a physician’s

malpractice within the applicable statute of limitations because of a long latency period in

his or her condition, the patient will have two years from the time that the malpractice

was discovered or should have been discovered with the exercise of reasonable diligence

to file a claim. See, e.g., Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind. 1999).

          In rejecting an argument that medical malpractice victims who legitimately

discover their claims after the statute of limitations has expired only have a reasonable

time in which to file their claims, the Van Dusen Court noted that “[r]ather than simply

ignoring the statute of limitations and its two-year time period, . . . the better course is to

construe or reconstrue the statute in such a way as to further the purposes of the

legislature without offending the Indiana Constitution.” Id. at 495-96.

          Here, the Plaintiffs contend that imposing a “reasonable time” filing deadline on

wrongful death claims that have been fraudulently concealed would violate both Article

1, Section 12 of the Indiana Constitution4 and the equal protection guarantee of the

United States Constitution5. In addressing this issue, we first note that the courts have a


4
 Article 1, Section 12 of the Indiana Constitution provides in relevant part, “All courts shall be open; and
every person for injury done to him in his person, property, or reputation, shall have remedy by due
course of law. . . .”
5
    U.S. Const. amend. XIV. § 1.
                                                     9
duty to interpret statutes in a way so as to avoid constitutional issues. City of Vincennes

v. Emmons, 841 N.E.2d 155, 162 (Ind. 2006). We also presume the legislature intended

to avoid unjust or absurd results. Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind. 2002).

       Our Supreme Court has held that in the context of medical malpractice cases

where a long latency period prevents a patient from discovering a physician’s malpractice

within the applicable statute of limitations, the medical malpractice statute of limitations

cannot be constitutionally applied to bar the plaintiff’s action. Martin v. Richey, 711

N.E.2d 1273, 1282 (Ind. 1999). And in such cases, our Supreme Court has held that the

plaintiff has a period of time equal to that of the original statutory period in which to file

the claim. Van Dusen, 712 N.E.2d at 497.

       We see no reason to impose a shorter period of time in the wrongful death context

when the reason for the plaintiff’s failure to discover the action within the WDA’s two-

year limitations period is the fault of the defendant rather than simply the result of a

medical condition’s long latency period. In short, it is abhorrent to think that we would

treat people who have been intentionally defrauded regarding their loved one’s deaths

worse than others, such as in Martin and Van Dusen, where the defendant’s misfeasance

has been undiscovered merely on account of nature’s own time frame.

       Accordingly, we conclude that where one fraudulently conceals the existence of a

wrongful death action beyond the WDA’s two-year limitations period, the decedent’s

personal representative shall be entitled to commence the action within the lesser of two

years from the date of the discovery of the cause of action or two years from the

                                             10
discovery of facts that, in the exercise of reasonable diligence, should lead to the

discovery of the wrongful act or omission that resulted in the decedent’s death.

         In so construing the WDA, we avoid holding that the WDA’s two-year limitations

period is unconstitutional as applied to the Plaintiffs under either the Indiana or United

States Constitutions. See City of Vincennes, 841 N.E.2d at 162. This interpretation also

allows us to give effect to the two-year time period that our legislature originally thought

was appropriate for wrongful death claims and to avoid the need for plaintiffs,

practitioners, and courts to engage in “hair-splitting” to determine exactly what

constitutes a “reasonable time.”

         We affirm the portion of the trial court’s judgment that held that fraudulent

concealment could operate to toll the WDA’s two-year limitations period but reverse its

conclusion that the Plaintiffs had only a reasonable time in which to commence their

wrongful death action. Instead, as stated above, the Plaintiffs have two years after the

concealment is or should have been discovered with reasonable diligence in which to file

their claims. Accordingly, we affirm in part and reverse in part the judgment of the trial

court.

         That being said, we observe that when these types of cases arise, it may be

preferable for the trial court to bifurcate the issues of negligence and fraudulent

concealment from the issue of damages in the interest of saving judicial time and

resources. This is because the application of the fraudulent concealment doctrine to the

WDA still requires a decedent’s personal representative to show not only the underlying

                                            11
negligence that resulted in the decedent’s death but also that the underlying negligence

has been fraudulently concealed by the defendant.

       The judgment of the trial court is affirmed in part, reversed in part, and remanded

for continuation of the underlying litigation.

RILEY, J., and BARNES, J., concur.




                                             12
