Shearer v. Pla-Boy, Inc.

• Decision Date: 16 May 1989
• Docket Number: INC,No. 90A04-8803-CV-82,PLA-BO,90A04-8803-CV-82
• Parties: Phillip S. SHEARER and Karla Shearer, Appellants, v., Kevin L. Donley, Pat Boylen, and Michael Placek, d/b/a Gophers, Appellees.
• Court: Indiana Appellate Court

Page 247

538 N.E.2d 247

Phillip S. SHEARER and Karla Shearer, Appellants, v. PLA-BOY, INC., Kevin L. Donley, Pat Boylen, and Michael

Placek, d/b/a Gophers, Appellees.

No. 90A04-8803-CV-82.

Court of Appeals of Indiana,

Fourth District.

May 16, 1989.

T. Dean Swihart, Boxberger Wernet Swihart Antalis & Renz, Fort Wayne, for appellants.

Thomas C. Ewing, Scott L. Bunnell, Hunt Suedhoff Borror & Eilbacher, Fort Wayne, for appellees.

MILLER, Judge.

On August 22, 1986 plaintiff-appellants Phillip and Karla Shearer (Shearer) filed suit against Kevin Donley and Donley's employers, Pla-Boy, Inc., Pat Boylen, and Michael Placek d/b/a Gophers (Employers) for personal injuries to Phillip resulting from a May 1985 automobile collision. Unbeknownst to Shearer, Donley had died two months before Shearer filed suit. In June, 1987 (more than 2 years after the accident), Shearer opened an estate for Donley, appointed a personal representative, and moved to substitute the representative as a party defendant in the pending action. In response, the Employers moved for summary judgment, alleging that the statute of limitations barred Shearer's claim. After a hearing, the trial court awarded summary judgment in favor of the defendants, apparently I. Whether the trial court, in granting summary judgment, erred in applying I.C. Sec. 34-1-2-2(1), the 2 year statute of limitations for the tort of personal injury, instead of I.C. Sec. 34-1-2-7, which in some instances, extends the limitations period to 18 months after the death of a party.

believing that Shearer had failed to open Donley's estate within the applicable statute of limitations. Shearer appeals this decision and presents the following issues:

II. Whether Shearer's lawsuit is precluded by the doctrine of laches.

We find the trial court erred in not applying I.C. Sec. 34-1-2-7, which extends the limitations period in this case to permit the substitution of Donley's personal representative, as a party defendant, within 18 months after Donley's death.

FACTS

On May 7, 1985 an automobile collision occurred between vehicles driven by Shearer and Donley. On August 22, 1986, Shearer filed suit in Allen County, against Donley and the Employers alleging that Donley was negligent and that his negligence was the proximate cause of Shearer's injuries. Unbeknownst to Shearer, Donley had died approximately two months earlier on June 6, 1986. On September 2, 1986, attorney Thomas C. Ewing entered his appearance in this cause for the Employers and "Kevin L. Donley, now deceased". Shortly thereafter Ewing filed an answer on behalf of all defendants, including "Kevin L. Donley, now deceased," ¹ alleging, among other things, that Shearer's claim was barred by I.C. Sec. 29-1-14-1, the probate provision which adopts by reference only I.C. Sec. 34-1-2-2(1), the two year tort statute of limitations. The Employers moved for a change of venue and the cause was transferred to the Wells Circuit Court. After several months of discovery and a pre-trial conference, Shearer opened an estate for Donley in Allen County, Indiana on June 5, 1987--2 years and 1 month after the accident. That same day, Shearer petitioned the Allen Superior Court to appoint a legal representative for the estate of Kevin Donley "for the sole purpose of defending a personal injury action now pending in the Wells Circuit Court, Cause No. CV-86-285" (R. 54). The Allen Superior Court appointed John Lyons for this purpose. On June 11, 1987 Shearer petitioned the Wells Circuit Court to substitute Lyons as the proper party defendant in the pending action. The Wells Circuit Court indicated, in its minute entry, that it would "favorably dispose" of this motion unless objections to it were filed by June 26, 1987. On June 30, 1987 the Employers filed a motion for summary judgment nunc pro tunc as of June 26, 1987, asserting that Shearer's failure to open Donley's estate, appoint a personal representative, and file suit against this representative within two years after the accident, pursuant to I.C. Sec. 34-1-2-2(1), barred his claim. Shearer filed a motion in opposition asserting, among other things, that his negligence action against Donley was timely filed pursuant to another provision in the statute of limitations, I.C. Sec. 34-1-2-7, which extends the limitations period to permit the filing of a complaint within 18 months after Donley's death. After a hearing on September 29, 1987, the trial court granted summary as follows:

"Defendants' motion for summary judgment having been submitted and argued on September 29, 1987, and having been taken under advisement on or about October 16, 1987, and the Court being duly advised in the premises now finds that there are no genuine issues as to any material fact and that all defendants herein are entitled to summary judgment The court did not specifically rule on Shearer's motion to substitute Donley's personal representative as a party defendant. ²

as a matter of law. Therefore, the Court now sustains and grants defendants' motion for summary judgment and enters summary judgment in favor of defendants."

DECISION

Before we discuss the issues in this appeal we note that in reviewing the grant or denial of summary judgment this court applies the same standard as the trial court. Ind.T.R. 56(C); Brenneman Mechanical and Electrical, Inc. v. First National Bank of Logansport (1986), Ind.App., 495 N.E.2d 233, 240, trans. denied; First Savings and Loan Association of Central Indiana v. Treaster (1986), Ind.App., 490 N.E.2d 1149, 1151, trans. denied. A trial court may grant summary judgment only when no issue of material fact exists and when the movant is entitled to judgment as a matter of law. Id. In this case, the trial court entered summary judgment in favor of the Employers without comment or specific reasons. Although this court might prefer that trial judges set forth their reasons for entering summary judgment with particularity in certain cases, there is no requirement that they do so. Fort Wayne, Etc. v. City of Fort Wayne (1980), Ind.App., 408 N.E.2d 1295, 1300. On review, this court will affirm the summary judgment if sustainable upon any theory or basis found in the record. Havert v. Caldwell (1983), Ind., 452 N.E.2d 154; Clark v. Millikin Mortg. Co. (1986), Ind.App., 495 N.E.2d 544.

ISSUE I

Based on the arguments presented at the summary judgment hearing, it appears that the trial court granted summary judgment in favor of the Employers because Shearer's negligence action was untimely. On appeal, Shearer claims his negligence action was timely, the Employers claim it was not. While the parties disagree as to the timeliness of Shearer's action, they do agree that probate law controls in this case. Both parties agree that if an action is brought after the death of a party, the action must be prosecuted as other claims against the decedent's estate ³ in compliance with a probate code provision, namely I.C. Sec. 29-1-14-1. This statute outlines the procedure to follow when filing a claim against a decedent's estate. The provisions relevant to this appeal are:

29-1-14-1. Limitations; filing; claims barred or not; liens; tort claims

Sec. 1. (a) All claims against a decedent's estate, other than expenses of administration and claims of the United States, and of the state and any subdivision thereof, 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:

* * * * * *

(f). Nothing in this section shall effect or prevent the enforcement of a claim for injury to person or damaged property arising out of negligence against the estate of a deceased tort-feasor within the period of statute of limitations provided for such tort action and for the purposes of enforcing such tort claim the estate of the tortfeasor may be opened or reopened and suit filed against the special representative of the estate within Where the parties disagree is in the interpretation of the language in subsection (f), which states "for the purposes of enforcing such tort claim the estate of the tortfeasor may be opened ... and suit filed against the special representative of the estate within the period of the statute of limitations of such tort".

                the period of the statute of limitations of such tort.   However, any recovery against the tortfeasor's estate shall not effect any interest in the assets of the estate unless such 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 applied in ordinary civil actions.  (emphasis added)
                

The Employers contend that the language "within the period of the statute of limitations of such tort" refers only to I.C. Sec. 34-1-2-2(1), which provides:

Sec. 2 The following action shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards:

1. For injuries to person or character, for injuries to personal property, and for a forfeiture of penalty given by statute, within two (2) years.

Thus, in order for Shearer to have successfully initiated his lawsuit against Donley, the Employers claim Shearer had to open Donley's estate, appoint a personal representative and file suit against this personal representative within two years of the date of the accident. Since Shearer failed to do so, the Employers claim his suit is barred.

On the other hand, Shearer contends that the language "within the period of the statute of limitations of such tort" can properly be read to refer to I.C. Sec. 34-1-2-2(1) as written and, if applicable, as extended by the later section 7 of the statute, I.C. Sec. 34-1-2-7, which provides:

If any person entitled to bring, or liable to, any action, shall die...