                                                         Jun 21 2013, 5:50 am
FOR PUBLICATION




ATTORNEYS FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

J. TODD SPURGEON                             CARA W. STIGGER
CRYSTAL G. ROWE                              KERSTIN SCHUHMANN
Kightlinger & Gray, LLP                      Kaufman, Stigger & Hughes
New Albany, Indiana                          Louisville, Kentucky



                            IN THE
                  COURT OF APPEALS OF INDIANA

JOHN M. MAYER, JR., as Special Administrator )
of the Estate of PAIGE R. WINN, Deceased,    )
                                             )
        Appellant-Defendant,                 )
                                             )
                vs.                          )     No. 22A01-1212-CT-570
                                             )
MICHAEL W. DAVIS,                            )
                                             )
        Appellee-Plaintiff.                  )


                     APPEAL FROM THE FLOYD CIRCUIT COURT
                         The Honorable J. Terrence Cody, Judge
                           Cause No. 22C01-0909-CT-1962



                                   June 21, 2013


                          OPINION - FOR PUBLICATION


BRADFORD, Judge
          On October 12, 2007, Appellee-Plaintiff Michael Davis was injured when the vehicle

he was driving collided with a vehicle that was being driven by Paige Winn. Winn

subsequently died of unrelated causes. On September 25, 2009, Davis filed a civil suit

against Winn’s Estate, claiming to have suffered personal injuries and lost employment

wages as a result of the October 12, 2007 automobile accident. Following a two-day jury

trial, the jury awarded Davis $60,000, and the trial court entered a judgment reflecting this

amount. Soon thereafter, Winn’s Estate filed a motion to amend the judgment, claiming that

Davis’s recovery was limited to the funds available under Winn’s insurance liability policy

because, pursuant to the time limitations set forth in the probate code, Davis failed to timely

file his claim against Winn’s Estate. The trial court denied this motion.

          We conclude that Davis’s claim against Winn’s Estate was not filed in a timely

manner, and, as a result, Davis is barred from recovering any funds from the Estate. Davis’s

recovery is limited to funds recovered from Winn’s insurance carrier in the amount of Winn’s

insurance liability policy limits. However, the trial court did not abuse its discretion in

denying the motion to amend the judgment because the judgment is a valid judgment despite

the fact that the excess judgment cannot be collected from Winn’s Estate. Accordingly, we

affirm.

                         FACTS AND PROCEDURAL HISTORY

          On October 12, 2007, Davis and Winn were involved in an automobile accident. At

the time of the accident, Winn was insured by Affirmative Insurance Company. Winn died

on June 8, 2008, from causes unrelated to the October 12, 2007 automobile accident.


                                              2
       Davis requested that the trial court open an estate for Winn. The trial court granted

this request. On September 25, 2009, Davis filed a complaint against Winn’s Estate (“the

Estate”) claiming that Winn negligently operated her automobile, resulting in the collision of

Winn’s vehicle with the vehicle driven by Davis.1 Davis claimed to have sustained personal

injuries and lost wages as a result of the accident.

       The case was tried before a jury on August 27 and 28, 2012. Following trial, the jury

returned a verdict in favor of Davis in the amount of $60,000. On August 29, 2012, the trial

court entered judgment on the jury verdict.

       On September 19, 2012, the Estate filed a “Motion to Correct Error/Motion to Amend

Judgment.” Appellant’s App. p. 31. In this motion, the Estate alleged that because Davis

failed to file his claim against the Estate within the time limitation set forth in the probate

code, he could not recover any funds from the Estate, and his recovery was limited to the

amount available under Winn’s insurance liability policy. On November 14, 2012, the trial

court denied the Estate’s motion to amend the judgment. This appeal follows.

                               DISCUSSION AND DECISION

             I. Whether the Trial Court Erred in Considering the Estate’s
                         Motion as a Trial Rule 60(B) Motion

       Initially, we note that Davis claims that the trial court erred in considering the Estate’s

motion to amend the judgment because the Estate was not entitled to relief under either Trial

Rule 50 or 59. For its part, the Estate argued both during the hearing before the trial court


       1
          Davis subsequently amended his complaint to add two additional defendants. The claims against
these additional defendants were dismissed prior to trial.

                                                  3
and on appeal that its motion to amend the judgment was proper under Trial Rule 59. The

Estate also acknowledged that the motion might more appropriately be considered as a

motion for relief under Trial Rule 60(B) and requested that the trial court treat it as such

during the hearing conducted by the trial court. “[W]e have frequently held that where the

purpose of a rule is satisfied, this court will not elevate form over substance.” Parham v.

Parham, 855 N.E.2d 722, 727 (Ind. Ct. App. 2006), trans. denied. The motion contained all

information necessary for the court to consider it as a motion for relief under Trial Rule

60(B), and, as such, we will not elevate the form of identifying the wrong trial rules in the

motion over the substance of the motion.

       Furthermore, the standard of review on appeal is the same regardless of whether the

Estate’s motion to amend the judgment is treated as a motion to correct error or a motion for

relief under Trial Rule 60(B). See Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d

65, 72 (Ind. 2006) (providing that a grant of equitable relief under Indiana Trial Rule 60 is

within the discretion of the trial court); French v. French, 821 N.E.2d 891, 895 (Ind. Ct. App.

2005) (providing that a trial court has the discretion to grant or deny a motion to correct

error). We will reverse the judgment of the trial court only upon a showing that the trial

court abused its discretion in denying the motion. See Markley, 856 N.E.2d at 72; French,

821 N.E.2d at 895. An abuse of discretion occurs when the trial court’s decision is against

the logic and effect of the facts and circumstances before the court or if the court has

misinterpreted the law. French, 821 N.E.2d at 895.

                    II. Whether Davis Can Recover From the Estate


                                              4
       In challenging the trial court’s denial of its motion to amend the judgment, the Estate

contends that the portion of the judgment in excess of Winn’s insurance policy limits is void

because Davis’s claim against the Estate was not filed within the permissible timeframe set

forth in Indiana Code section 29-1-14-1.

                               A. Indiana Code § 29-1-14-1

       With respect to claims against the estate of a deceased individual, Indiana Code

section 29-1-14-1 provides, in relevant part, as follows:

       (a) Except as provided in IC 29-1-7-7, all claims against a decedent’s estate,
       other than expenses of administration and claims of the United States, the
       state, or a subdivision of the state, whether due or to become due, absolute or
       contingent, liquidated or unliquidated, founded on contract or otherwise, shall
       be forever barred against the estate, the personal representative, the heirs,
       devisees, and legatees of the decedent, unless filed with the court in which
       such estate is being administered within:
               (1) three (3) months after the date of the first published notice to
               creditors; or
               (2) three (3) months after the court has revoked probate of a
               will, in accordance with IC 29-1-7-21, if the claimant was
               named as a beneficiary in that revoked will;
       whichever is later.
                                             ****
       (d) All claims barrable under subsection (a) shall be barred if not filed within
       nine (9) months after the death of the decedent.
                                             ****
       (f) Nothing in this section shall affect or prevent the enforcement of a claim
       for injury to person or damage to property arising out of negligence against the
       estate of a deceased tort feasor within the period of the statute of limitations
       provided for the tort action. A tort claim against the estate of the tort feasor
       may be opened or reopened and suit filed against the special representative of
       the estate within the period of the statute of limitations of the tort. Any
       recovery against the tort feasor’s estate shall not affect any interest in the
       assets of the estate unless the suit was filed within the time allowed for filing
       claims against the estate. The rules of pleading and procedure in such cases
       shall be the same as apply in ordinary civil actions.


                                              5
(emphasis added).

                      B. Nonclaim Statute vs. Statute of Limitations

       “[Indiana Code section 29-1-14-1] is not a statute of limitations.” McEwen v.

McEwen, 529 N.E.2d 355, 359 (Ind. Ct. App. 1988). “It is a nonclaim statute and, as such, it

imposes a condition precedent to the enforcement of a right of action … and precludes

recovery when this condition is not met.” Id. “The time element in the statute is a part of the

action itself.” Id.

       A statute which provides a right of action may also mandate the appropriate
       procedure for claiming the right. The procedure by which one avails himself
       of the right of action becomes part of that substantive right.
               “The statute is an offer of an action on condition that it be
               commenced within the specified time, and if the offer is not
               accepted in the only way in which it can be accepted, by a
               commencement of the action within the specified time, the
               action and the right of action no longer exist and the defendant
               is exempt from liability.” 51 AM.JUR.2D, supra § 15; see also
               HENRY, supra ch. 16 § 1 at 240.

Burnett v. Villaneuve, 685 N.E.2d 1103, 1107-8 (Ind. Ct. App. 1997). The time limitations

set forth in Indiana Code section 29-1-14-1 display a clear “legislative intent … to not merely

withhold the remedy, but to take away the right of recovery where a claimant fails to present

his claim as provided in the statute.” Rising Sun State Bank v. Fessler, 400 N.E.2d 1164,

1166 (Ind. Ct. App. 1980).

              The policy behind such statutory interpretation is sound. Unlike a
       general claim against an individual, a claim against an estate is against a finite,
       ascertainable sum of assets. Oftentimes, claims against an estate will exceed
       the assets of the estate, and the competing parties will receive less than the full
       amount to which they are entitled. This division of assets is not possible until
       such time as the personal representative is made aware of all the claims against
       an estate. Therefore, a time limit for claims is appropriate and in order to

                                               6
       achieve its purpose is made absolute. When the time limit has expired, the
       personal representative should be able to divide the estate’s assets to satisfy the
       property interests of all of the creditors. If creditors were to be allowed to file
       a claim after the cutoff date, for any reason, a final resolution of the matters of
       the estate would be impossible.

Burnett, 685 N.E.2d at 1108.

       “While an ordinary statute of limitation may be waived and is subject to equitable

tolling, a nonclaim statute is not. Id. at 1107.

       A nonclaim statute has been described as one which “creates a right of action
       and has inherent in it the denial of a right of action. It imposes a condition
       precedent-the time element which is a part of the action itself.” Wawrinchak v.
       United States Steel Corp. (1971) 148 Ind. App. 444, 267 N.E.2d 395.
              “A distinction exists between statutes of limitation and special
              statutory limitations qualifying a given right in which time is
              made an essence of the right created and the limitation is an
              inherent part of the statute out of which the right in question
              arises, so that there is no right of action whatever independent of
              the limitation; a lapse of the statutory period operates, therefore,
              to extinguish the right altogether.” 54 C.J.S.2D Limitations of
              Actions § 4 (1987).
       See also 51 AM.JUR.2D Limitations of Actions § 15 (1970) (“the limitation of
       time for commencing an action under a statute creating a new right enters into
       and becomes a part of the right of action itself and is a limitation not only of
       the remedy but of the right also.”)

Id.
                                         C. Analysis

       The Estate argues that the trial court abused its discretion by not amending the

judgment to reflect the fact that Davis’s recovery is limited to the amount available under

Winn’s insurance liability policy in light of Davis’s failure to open an estate and assert his

claim against the Estate within nine months of Winn’s death. In support, the Estate relies on

the plain language of Indiana Code section 29-1-14-1. The Estate also relies on the Indiana


                                               7
Supreme Court’s opinion in Indiana Farmers Mutual Insurance Co. v. Richie, 707 N.E.2d

992 (Ind. 1999).

       In Richie, the Indiana Supreme Court considered the timeliness of a tort claim filed

against the estate of a deceased individual. The tort claim arose from an automobile accident

which occurred on October 16, 1994. Richie, 707 N.E.2d at 992. The deceased individual

died on the day of the accident. Id. Exactly two years later, on October 16, 1996, Richie

filed a “complaint for personal injuries” naming the deceased as a defendant. Id. at 993. The

deceased’s automobile liability insurance carrier, Indiana Farmers Mutual Insurance Co.

(“Farmers Mutual”), subsequently requested permission to intervene. Id. Farmers Mutual

moved for summary judgment, claiming that Richie’s claim was barred because he failed to

bring a claim against the deceased’s estate within the time limit set forth under the probate

code. Id. On February 7, 1997, nearly three months after Farmers Mutual filed its motion for

summary judgment, Richie asked the trial court to open an estate for the deceased and moved

to amend his complaint to include the estate. Id. The trial court granted Richie’s motion to

amend his complaint, denied Farmers Mutual’s motion for summary judgment, and certified

its order for interlocutory appeal. Id.

       Upon review, the Indiana Supreme Court held that pursuant to Indiana Code section

29-1-14-1(f), an injured person may bring a tort claim against the estate of a deceased

tortfeasor so long as the action is filed within the period allowed by the applicable statute of

limitations. Id. at 995. However, the Indiana Supreme Court further held that any recovery

by the claimant is limited to the recovery of the deceased tortfeasor’s available insurance


                                               8
liability proceeds if the tort claim was not brought within the time limits set forth in Indiana

Code section 29-1-14-1. Id. In reaching this holding, the Indiana Supreme Court observed:

       The statute makes clear that the administration of the estate cannot be
       disturbed by a Johnny-come-lately tort suit because such a suit cannot reach
       the assets of the estate. If that is the case there seems to be no reason why a
       suit involving only insurance proceeds should not proceed as a normal tort suit
       uncomplicated by the Probate Code.

Id. (emphasis added).

       In the instant matter, the record clearly demonstrates that Davis failed to either request

that the trial court open an estate for Winn or file a claim against the Estate within the

permissible timeframe set forth in Indiana Code section 29-1-14-1(d). As a result, Davis is

barred from recovering any funds from the Estate. However, pursuant to the clear language

of Indiana Code section 29-1-14-1(f) and the Indiana Supreme Court’s holding in Richie,

Davis may recover the funds available under the limits of Winn’s insurance liability policy

from Winn’s insurance carrier.

 III. Whether the Trial Court Abused its Discretion in Denying the Estate’s Motion
          to Amend the Judgment to Reflect the Applicable Policy Limits

       Having concluded that Davis is barred from recovering from the Estate, and, as a

result, is limited to recovering the available policy limits from Winn’s insurance carrier, we

next turn our attention to the Estate’s claim that the trial court abused its discretion in

denying the Estate’s request to amend the judgment to reflect only the amount available

under the applicable policy limits. Despite the Estate’s contention to the contrary, upon

review, we cannot conclude that the trial court abused its discretion in denying the Estate’s

motion to amend the judgment because the judgment itself is valid despite the fact that any

                                               9
portion of the judgment that is in excess of Winn’s insurance liability policy limits cannot be

recovered from the Estate. The Estate has pointed to no authority suggesting that a judgment

is void merely because it is unenforceable, and we find none. Accordingly, we affirm the

trial court’s order denying the Estate’s motion to amend the judgment.2

        The judgment of the trial court is affirmed.

RILEY, J., and BROWN, J., concur.




        2
           We note that the parties spend a significant portion of their respective arguments discussing the
applicability of this court’s opinion in Pistalo v. Progressive Casualty Insurance Co., 983 N.E.2d 152 (Ind. Ct.
App. 2012), trans. denied. In Pistalo, the claimant failed to file a timely claim against the deceased’s estate.
983 N.E.2d at 155. The deceased’s estate, however, subsequently assigned to Pistalo its interest in the
recovery of potential proceeds from the deceased’s insurance carrier. Id. at 156. Pistalo brought suit against
the deceased’s insurance carrier, alleging that the insurance carrier had committed a bad faith failure to settle at
policy limits. Id. This court found that the assignment was valid and that Pistalo could bring suit against the
insurance carrier, and, upon a showing of bad faith, the insurance carrier would be liable for the excess
judgment in its entirety. Id. at 160. Pistalo, however, is not applicable to and is easily distinguishable from the
instant matter. Unlike in Pistalo, the instant appeal stems from a suit against the deceased tortfeasor’s estate
seeking to establish liability on behalf of the deceased tortfeasor. It does not raise a claim of bad faith against
Winn’s insurance carrier, and the record does not include any evidence relating to settlement discussions or
bad faith by the deceased’s insurance carrier.

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