Moryl v. Ransone

• Decision Date: 16 August 2013
• Docket Number: No. 46A04–1112–CT–710.,46A04–1112–CT–710.
• Citation: 987 N.E.2d 1159
• Parties: Bonnie MORYL, as Surviving Spouse and Personal Representative of the Estate of Richard A. Moryl, Deceased, Appellant–Plaintiff, v. Carey B. RANSONE, M.D., La Porte Hospital, Dawn Forney, RN, Wanda Wakeman, RN BSBA, B. Prast, RN, and Carol Cutter, in her capacity as Commissioner of the Indiana Department of Insurance, Appellees–Defendants.
• Court: Indiana Appellate Court

987 N.E.2d 1159

Bonnie MORYL, as Surviving Spouse and Personal Representative of the Estate of Richard A. Moryl, Deceased, Appellant–Plaintiff,

v.Carey B. RANSONE, M.D., La Porte Hospital, Dawn Forney, RN, Wanda Wakeman, RN BSBA, B. Prast, RN, and Carol Cutter, in her capacity as Commissioner of the Indiana Department of Insurance, Appellees–Defendants.

No. 46A04–1112–CT–710.

Court of Appeals of Indiana.

May 9, 2013.

Rehearing Denied Aug. 16, 2013.

Doug A. Bernacchi, Michigan City, IN, Attorney for Appellant.

Michael E. O'Neill, Kelly K. McFadden, Kathleen M. Rose, O'Neill McFadden & Willett LLP, Dyer, IN, Mark A. Lienhoop, Newby, Lewis, Kaminski & Jones, LLP, La Porte, IN, Attorneys for Appellees.

OPINION

BAKER, Judge.

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, La Porte 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).

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.” Appellant's App. p. 9.

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.

FACTS

Richard died on April 20, 2007, in the La Porte Hospital while he was under the appellees' care. On Sunday, April 19, 2009, Moryl sent her proposed medical malpractice complaint to the Department via FedEx. The complaint alleged, among other things, that the appellees were negligent in their care and treatment of Richard on April 19 and 20, 2007, and that their negligence was the proximate cause of Richard's death. The Department received the complaint on Tuesday, April 21, 2009, and file-stamped it that same day. April 21st was one day after the expiration of the two-year statute of limitations.

Thereafter, the appellees filed a motion for summary judgment, claiming that Moryl did not file her proposed complaint in a timely fashion. More specifically, the appellees asserted that under Indiana Code section 34–18–7–1(b), the statute of limitations is two years from the date of the alleged act, omission, or neglect. Also, Indiana Code section 34–23–1–1 provides that a wrongful death claim must be filed within two years of the date of death.

Because Richard died on April 20, 2007, and Moryl's complaint was not filed until April 21, 2009, the appellees contended that Moryl's complaint was filed one day late. Following a hearing on August 15, 2011, the trial court granted the appellees' motion for summary judgment. The trial court's order provided in relevant part that:

14. When reviewing the rules surrounding the timing of the filing of the complaint with the Indiana Department of Insurance, the court must look to the rules and statutes governing that particular agency.

15. Although the trial rules specifically provide for the filing date of a complaint through the United States Postal Service, or a third party commercial carrier, IC 34–18–7–3(b) only allows filings by registered or certified mail.

16. No case law or precedent appears to exist which addresses the exact issue before the court, and although common sense would seem to suggest that in today's world the utilization of a third party commercial carrier should suffice, the statute governing the subject matter involved in this case does not provide for it and therefore a strict reading of IC 34–18–7–3(b) requires the court to find that, as a matter of law, the complaint was not timely filed.

Moryl now appeals.

DISCUSSION AND DECISION

I. Cross–Appeal

Before considering the merits of Moryl's arguments, we initially address the appellees' cross-appeal where they assert that Moryl's appeal should be dismissed because of her “flagrant disregard of the Appellate rules and of this Court's prior orders [as to] when the Appellant's Brief and Appendix were due.” Appellees' Br. p. 11.

The appellees assert that Moryl did not correct the defects in her appellate brief as she was ordered to do—within the prescribed time limits that our motions panel had prescribed. Thus, the appellees maintain that Moryl's appeal must be dismissed.

Although we are reluctant to overrule prior orders entered by this court, we have the inherent authority to reconsider any decision while an appeal is pending. Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind.Ct.App.2007). Also, “we prefer to decide a case upon the merits whenever possible.” United Farm Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060, 1067 (Ind.Ct.App.2004). We will deem alleged errors waived where an appellant's noncompliance with the rules of appellate procedure is so substantial that it impedes our ability to consider the errors. Ramsey v. Review Bd. of Ind. Dep't. of Workforce Dev., 789 N.E.2d 486, 487 (Ind.Ct.App.2003).

In this case, we cannot say that Moryl's failure to follow our appellate rules was substantial to the extent that our ability to consider the issues presented on appeal has been hindered. Thus, we reject the appellees' motion to dismiss Moryl's appeal, and we will address her claims on the merits.

II. Standard of Review

Our standard of review with regard to the grant or denial of summary judgment is well settled:

When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment a matter of law.” [We] construe all factual inferences in the non-moving party's favor and resolve all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269–70 (Ind.2009).

The issue of when a cause of action accrues is generally a question of law for the courts to determine. Strauser v. Westfield Ins. Co., 827 N.E.2d 1181, 1185 (Ind.Ct.App.2005). Thus, a statute of limitations defense is particularly suitable as a basis for summary judgment. McGill v. Ling, 801 N.E.2d 678, 682 (Ind.Ct.App.2004). The failure to file a proposed complaint with the Department within two years of the date of the alleged malpractice is ordinarily fatal to a medical malpractice action. Id.

III. Moryl's Contentions

In addressing Moryl's argument that the trial court erred in granting the appellees' motion for summary judgment, we initially observe that a medical malpractice claim must be filed within two years of the date of the alleged act, omission, or neglect. Ind.Code § 34–18–7–1(b).¹ And we have previously determined that the filing of a complaint occurs in one of three (3) ways: personal delivery, registered mail, or certified mail. Wallis v. Marshall Cnty. Comm'rs, 546 N.E.2d 843, 844 (Ind.1989). In accordance with Indiana Code section 34–18–7–3(b), a proposed complaint is considered filed when a copy of the complaint is delivered or mailed by registered or certified mail to the Department. Specifically, the statute provides that “[a] proposed complaint under IC 34–18–8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” (Emphasis added).

As noted above, Richard died on April 20, 2007. Supp. App. 16–20. Moryl did not send her proposed complaint to the Department by registered or certified mail. Rather, she sent it via third-party carrier, FedEx, and “regular” mail was marked on the Department's receipt. Id. at 1–3, 29–34. According to the Department's file stamp, Moryl's complaint was filed on April 21, 2009, which was the date of delivery. Id. As a result, under Indiana Code section 34–18–7–1(b), Moryl's action was filed outside the statute of limitations.

Notwithstanding these provisions, Moryl attempts to avoid the...