Thursday, May 09, 2013
Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)
For publication opinions today (2):
In Bonnie Moryl, as Surviving Spouse and Personal Rep. of the Estate of Richard A. Moryl, Deceased v. Carey B. Ransone, M.D.; La Porte Hospital; Dawn Forney, RN; Wanda Wakeman, RN BSBA; et al., a 10-page opinion [emphasis added by ILB], Judge Baker writes:
In this case of first impression, the appellant-plaintiff Bonnie Moryl, the widow of the deceased, Richard A. Moryl (Richard), appeals the trial court’s grant of summary judgment in favor of the appellees-defendants, LaPorte Hospital, Dawn Forney, RN, Wanda Wakeman, RN, B. Prast, RN, and Dr. Carey B. Ransone (collectively, the appellees), when it determined as a matter of law that Moryl’s proposed complaint for medical malpractice was not timely filed with the Indiana Department of Insurance (Department).In G.H. v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
Moryl claims that because the Indiana Rules of Trial Procedure and the Indiana Rules of Appellate Procedure consider a pleading filed on the date that it was deposited with a third-party carrier, such as Fed Express (FedEx), the Medical Malpractice Act should also permit a proposed complaint to be considered filed with the Department on the day it was sent via FedEx Priority Overnight. Moryl suggests that the best “common sense resolution of this matter is for us to construe the Medical Malpractice statute to include the use of third party private carriers for filing.”
Notwithstanding Moryl’s contentions, Trial Rule 5(F) makes it clear that mailing by registered or certified mail is not the same as depositing it with a third-party commercial carrier such as FedEx. And Indiana Code section 34-18-7-3(b) provides that a proposed complaint is considered filed when it is delivered to the Department or mailed by registered or certified mail to the Department.
In this case, the trial court properly found that Moryl’s complaint sent to the Department by FedEx was filed one day late under the two-year statute of limitations. Thus, the trial court properly entered summary judgment in the appellees’ favor. * * *
We note that our Supreme Court has made it clear that the trial rules do not govern the operations of administrative agencies, or even conditions precedent to the judicial review of administrative decisions:Each of the several administrative agencies is a creature of the Legislature. The procedures to be followed in presenting matters to these agencies and in appeals therefrom are specifically set out in the statutes pertaining to each. The rules of trial procedure, which, as stated in Trial Rule 1, govern the procedure and practice in all courts of the state of Indiana are not applicable to proceedings before the administrative agencies nor to the proceedings requisite to invoking the jurisdiction of reviewing judicial authority.Clary v. Nat’l Friction Prods., 259 Ind. 581, 584-85, 290 N.E.2d 53, 55 (1972).
In light of the above, while Trial Rule 5 and Appellate Rule 23 permit pleadings, motions, and other papers that are sent by a third-party carrier to be deemed filed on the date of deposit with the carrier, these rules to not apply to proposed complaints filed with the Department, an administrative agency. And because Indiana Code section 34-18-7-3(b) expressly states that registered and certified mail are the only two types of mailings by which a proposed complaint will be considered filed as of the date of mailing, a third-party carrier is not included, because that method is not expressly named in the statute.
G.H. appeals the trial court’s true finding for what would be Class D felony criminal gang activity if committed by an adult. He argues that there is insufficient evidence to support his adjudication. We conclude that the State failed to prove that G.H. had a specific intent to further a gang’s criminal goals, which is necessary to sustain an adjudication for criminal gang activity. We reverse.NFP civil opinions today (3):
NFP criminal opinions today (7):
Posted by Marcia Oddi on May 9, 2013 11:38 AM
Posted to Ind. App.Ct. Decisions