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Tuesday, June 02, 2009

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Frederick William LaCava v. Daniel and Geoffrey LaCava, a 20-page opinion, Judge Robb writes:

Frederick William LaCava was sued by his adopted adult sons, Daniel and Geoffrey, for damages arising out of Frederick's alleged molestation of them when they were children. Frederick filed a motion for summary judgment alleging that the complaint was filed after the running of the statute of limitations. Frederick appeals the trial court's denial of his motion, raising four issues that we consolidate and restate as two: 1) whether Daniel and Geoffrey's claims are barred by the statute of limitations, and 2) whether, in the absence of expert opinion evidence regarding Daniel and Geoffrey's claims of repressed memory, their complaint can withstand summary judgment. Daniel and Geoffrey cross-appeal the trial court?s denial of their third motion for extension of time to respond to Frederick?s motion for summary judgment, alleging the trial court abused its discretion in denying them an extension for the purpose of gathering expert opinion evidence.

Concluding that issues of fact preclude summary judgment in Frederick's favor on the statute of limitations and that Daniel and Geoffrey did not need to designate expert opinion evidence to refute Frederick?s motion for summary judgment because of the position Frederick took with respect to their request for additional time to procure such evidence, we affirm. * * *

The parties agree that the statute of limitations applicable to Daniel and Geoffrey's action is found at Indiana Code section 34-11-2-4: “An action for . . . injury to person or character . . . must be commenced within two (2) years after the cause of action accrues.” Because Daniel and Geoffrey were minors when they were allegedly molested by Frederick, Indiana Code section 34-11-6-1, which provides that a “person who is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed,” also comes into play. A person is considered “under legal disabilities” if that person is less than eighteen years of age. Ind. Code § 1-1-4-5(24). Daniel turned eighteen on September 12, 1997, making his presumptive statute of limitations September 12, 1999. Geoffrey turned eighteen on January 23, 1999, making his presumptive statute of limitations January 23, 2001. The lawsuit was filed on June 21, 2005.

A cause of action in a tort claim accrues and the statute of limitations begins to run. [ILB - see discussion of fraudulent concealment docnine on pp. 11-12] * * *

Conclusion. Genuine issues of material fact regarding whether the applicable statute of limitations should be extended pursuant to the fraudulent concealment doctrine preclude summary judgment in Frederick's favor. Moreover, expert opinion testimony was not required to refute Frederick's motion because of the nature of Frederick's opposition to Daniel and Geoffrey's request for time to procure expert evidence. Accordingly, the trial court's order denying summary judgment is affirmed, and this case is remanded to the trial court for further proceedings. Affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on June 2, 2009 10:06 AM
Posted to Ind. App.Ct. Decisions