Robert Stytle v. Angola Die Casting Company, et al. (4/20/04 IndCtApp) [Worker's Compensation; Constitutional Law]
Ratliff, Senior Judge
The question Stytle presents is whether Indiana Code Section 22-3-7-9(f) as applied in this case violates Article I, Section 12 of the Indiana Constitution, which reads, “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. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”Strictly speaking, Indiana Code Section 22-3-7-9(f) is a statute of repose, rather than a statute of limitation. As we explained in Kissel v. Rosenbaum, 579 N.E.2d 1322 (Ind. Ct. App. 1991),
A statute of limitation requires a lawsuit to be filed within a specified period of time after a legal right has been violated. In contrast, a statute of repose is designed to bar actions after a specified period of time has run from the occurrence of some event other than the injury which gave rise to the claim. A statute of repose might theoretically bar a claim filed within the period allowed by the applicable statute of limitation. A statute of limitation extinguishes a remedy while a statute of repose may bar a cause of action even before it arises. In practical terms, a statute of repose marks the boundary of a substantive right whereas a statute of limitation interposes itself only procedurally to bar a remedy after a substantive right has vested. A statute of limitation implicitly seeks to punish those who sleep on their rights, while a statute of repose operates to bar some recoveries no matter how diligently the claim may have been asserted. * * *We are obliged to follow precedents established by our supreme court, which are binding until changed either by a subsequent supreme court decision or by legislative enactment. Computer Co., Inc. v. Davidson Indus., Inc., 623 N.E.2d 1075, 1079 (Ind. Ct. App. 1993). We acknowledge that the statute of repose at issue in Bunker specifically addressed asbestos-related claims, but we note that our supreme court has not disavowed its holding in that case, and the legislature has not updated Indiana Code Section 22-3-7-9(f) to provide for a discovery rule in aluminum poisoning cases. Our court is ill-equipped to determine as a matter of law whether a discovery rule for work-related exposure to certain substances is warranted on the basis of a cold and meager administrative record, and we are likewise ill-equipped to determine an appropriate period of repose. As the Bunker court astutely observed, such determinations are properly reserved for the legislature. In light of these considerations and the circumstances of this case, we cannot conclude that a two-year period of repose is so manifestly insufficient that it represents a denial of justice.
We therefore hold that Indiana Code Section 22-3-7-9(f) is not unconstitutional as applied to Stytle, who did not become disabled from alleged work-related aluminum poisoning until eight years after he was last exposed to aluminum as an Angola employee. Consequently, we affirm the Board’s dismissal of Stytle’s application as time-barred.
Affirmed.
SULLIVAN, J., and ROBB, J., concur.
Dallis J. Tirey v. Marla L. Tirey and State of Indiana (4/20/04 IndCtApp) [Family Law]
Friedlander, Judge
Dallis and Marla Tirey divorced in 1994. Their dissolution decree addressed child support with respect to two children: then eight-year-old R.T., who was the Tireys’ biological child, and then three-year-old A.L., who was the biological daughter of Marla’s brother, Neal Lloyd. A.L. had lived with the Tireys since she was five days old, as will be explained more fully below. The court awarded custody See footnote of both children to Marla, and Dallis was ordered to pay child support for both children. Dallis filed a motion to terminate his obligation as to A.L., and the trial court denied the motion. Dallis appeals that ruling, presenting the following restated issues for review:Dreibelbiss Title Company v. Fifth Third Bank (4/20/04 IndCtApp) [Real Estate; Banking]We affirm.
- May a court impose a child support order upon a man who volunteered to pay support but is neither the biological father nor the adoptive parent of the child?
- Did the trial court err in denying Dallis’s request to modify his child support obligation with respect to A.L.?
Dimitrios and Laura Garnelis v. Marion County Health Department (4/20/04 IndCtApp) [Tort Claims Act]
Sharpnack, Judge
Dimitrios G. was "definitively" told he was HIV positive by the Health Dept. in 1991. In 1999, he was tested in Greece and found to be HIV negative.
On October 7, 1999, the Garnelises served a tort claim notice on the Health Department. The Garnelises then filed a complaint against, among others, the Health Department, alleging that the Health Department was “careless and negligent” in: (1) “the performance of, the analysis of, and/or the reporting of Dimitrios Garnelis’s HIV test[;]” and (2) “failing to order retesting of Dimitrios Garnelis to verify the positive result of his HIV test.” Id. at 9-10. The Health Department filed a motion for summary judgment on the issue of whether the Garnelises’ tort claim notice was timely filed, and the Garnelises filed a cross-motion for summary judgment on the same issue. * * * The sole issue is whether the Garnelises complied with the requirement of the Tort Claims Act to give notice of their claim within 270 days after their loss occurred. The trial court determined that the Garnelises’ tort claim notice to the Health Department was not timely under the Tort Claims Act and entered its summary judgment order in favor of the Health Department and against the Garnelises. See Ind. Code § 34-13-3-6 (1998). The Garnelises argue that the trial court erred by determining that the Garnelises’ tort claim notice was untimely under the Tort Claims Act. * * *Swiggett Lumber and Construction Company v. Barbara Quandt, et al. (4/20/04 IndCtApp) [Civil Procedure]The undisputed facts of this case lead us to conclude that Dimitrios did not know or, in the exercise of ordinary diligence, could not have discovered the alleged negligence and resulting injury until July 5, 1999. Similar to City of Hobart, where the homeowner plaintiffs’ loss occurred so as to trigger the statutory period to file a tort claim notice on the date they discovered that their house was not connected to the city sewer system, not on the date that they were first erroneously charged for sewer service, the Garnelises’ loss occurred so as to trigger the statutory period to file a tort claim notice on the date when Dimitrios discovered that he was not HIV positive, not the date that the Health Department erroneously diagnosed him as being HIV positive. Therefore, July 5, 1999, was the date that the Garnelises’ cause of action accrued and was the date upon which their loss occurred so as to trigger the 270-day time period for filing their tort claim notice. Accordingly, we conclude that the Garnelises’ tort claim notice, filed on October 7, 1999, was timely. Thus, the trial court erred by granting summary judgment to the Health Department. For the foregoing reasons, we reverse the trial court’s grant of the Health Department’s motion for summary judgment and denial of the Garnelises’ cross-motion for summary judgment, and we remand to the trial court for proceedings consistent with this opinion.
Reversed and remanded.
MATHIAS, J. and VAIDIK, J. concur
Swiggett Lumber Construction Co., Inc. (Swiggett) appeals the trial court’s denial of Swiggett’s Motion to Set Aside Default Judgment. Swiggett presents the following consolidated and restated issued for review: Did the trial court err when it denied Swiggett’s motion to set aside default judgment for insufficiency of service of process? We reverse and remand. * * *Rosalind R. Bowman v. Harold E. Smoot (4/20/04 IndCtApp) [Civil Procedure]Here, we are not confronted with merely a technical defect in service of process, as there was no attempt whatsoever to comply with T.R. 4.1(B). Furthermore, the rules do not contemplate that an unidentified employee of unknown position within a corporation is authorized to accept service of process for the corporation’s registered agent. Because service of process was inadequate in the instant case, the trial court did not have personal jurisdiction over Swiggett, and the default judgment entered against Swiggett is void. Therefore, we reverse the judgment of the trial court, set aside the default judgment against Swiggett, and remand for further proceedings consistent with this opinion. Judgment reversed and remanded.
KIRSCH, C.J., and BARNES, J., concur.
Appellant-Plaintiff, Rosalind R. Bowman (Bowman), appeals from the trial court’s denial of her Motion for Relief from Judgment pursuant to Ind. Trial Rule 60(B). We affirm. * * * Here, Bowman fails to specify how the jury venire in the Bowman/Smoot trial does not represent a cross-section of citizens in Monroe County. To the contrary, she merely asserts, “[t]he narrow socio[-]economic segment reflected by the flawed jury pool completely obliterated the diversity of Monroe County in income, racial composition, age, occupation, and virtually every other criteria.” (Appellant’s App. p. 6). We find her bald accusation without merit. Consequently, we hold that Bowman fails to demonstrate that the jury selection process utilized in the instant case does not substantially comply with the statutory requirements of I.C. § 33-4-5-2. * * *John P. Myers v. State of Indiana (4/20/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
DARDEN, J., and BAILEY, J., concur.
Interlocutory appeal of denial of motion to suppress a handgun seized during a warrantless search of his vehicle. Affirmed 2-1.
Daniel C. Portee v. State of Indiana (4/20/04 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge
This is credit time case; citing the Supreme Court in Robinson v. State and two subsequent Supreme Court decisions, but not Hakim v. State, which the Supreme Court issued today (scroll down to the next earlier entry), the court here rules that in:
the instant case, Portee asserts that the trial court improperly denied his motion to correct erroneous sentence because his abstract of judgment failed to include good time credit as required by I.C. § 35-38-3-2. Based on Robinson and its companion cases, we affirm the trial court’s denial of Portee’s motion – omissions in an abstract of judgment may not be challenged by a motion to correct sentence. Judgment affirmed.Aztar Indiana Gaming Corporation v. Indiana Department of State Revenue (4/19/04 IndTaxCt) [AGI Tax]
RILEY, J., and SULLIVAN, J., concur.
The sole issue for the Court to decide is whether Indiana’s Riverboat Wagering Tax (RWT) is a state tax “based on or measured by income” for purposes of an add-back provision in Indiana’s adjusted gross income tax law. * * *Posted by Marcia Oddi at April 20, 2004 02:07 PMIn this case, it is clear that the RWT is an excise tax: it is not payable unless the privilege of conducting riverboat gambling is exercised and the exercising of those privileges is the occasion for the imposition of the tax. Nevertheless, it is an excise tax that is measured by income. Indeed, Aztar’s RWT liability calculation is measured by the adjusted gross receipts it receives from its gaming operations: all cash and property received by Aztar from its gaming operations (minus certain adjustments) certainly constitute income to Aztar. See A.I.C. § 4-33-2-2. See also Black’s Law Dictionary 766 (7th ed.) (defining income as “[t]he money or other form of payment that one receives . . . from employment, business, investments, royalties, gifts, and the like”). Accordingly, Aztar’s RWT liability is subject to the add-back provision of Indiana Code § 6-3-1-3.5(b)(3). The Department’s final determination is therefore AFFIRMED.