Bonnie Moryl, as Surviving Spouse and Personal Rep. of the Estate of Richard A. Moryl v. Carey B. Ransone, M.D. La Porte Hospital Dawn Forney, RN Wanda Wakeman, RN BSBA
May 09 2013, 8:59 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
DOUG A. BERNACCHI MICHAEL E. O’NEILL
Michigan City, Indiana KELLY K. MCFADDEN
KATHLEEN M. ROSE
O’Neill McFadden & Willett LLP
Dyer, Indiana
MARK A. LIENHOOP
Newby, Lewis, Kaminski & Jones, LLP
La Porte, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BONNIE MORYL, as Surviving Spouse )
and Personal Representative of the )
ESTATE OF RICHARD A. MORYL, )
Deceased, )
)
Appellant-Plaintiff, )
)
vs. ) No. 46A04-1112-CT-710
)
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. )
APPEAL FROM THE LAPORTE SUPERIOR COURT #2
The Honorable Richard R. Stalbrink, Jr., Special Judge
Cause No. 46D03-1009-CT-550
May 9, 2013
OPINION–FOR PUBLICATION
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, 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).
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.
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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 LaPorte 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
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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
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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:
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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
1
Indiana Code section 34-18-7-1(b) provides that:
[a] claim, whether in contract or tort, may not be brought against a health care provider based upon
professional services or health care that was provided or that should have been provided unless the claim
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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 appellees’ statute
of limitations defense by claiming that her proposed complaint should have been
considered filed with the Department when it was deposited with FedEx. In support of
this argument, Moryl directs us to Trial Rule 5(F)(4), which provides that
(F) Filing With the Court Defined. The filing of pleadings, motions, and
other papers with the court as required by these rules shall be made by one
of the following methods:
is filed within two (2) years after the date of the alleged act, omission, or neglect, except that a minor less
than six (6) years of age has until the minor's eighth birthday to file.
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...
(4) Depositing with any third-party commercial carrier for delivery to the
clerk within three (3) calendar days, cost prepaid, properly addressed;
...
Filing by registered or certified mail and by third-party commercial carrier
shall be complete upon mailing or deposit.
(Emphasis added).
Moryl correctly observes that this rule and Appellate Rule 23 2 deem various
documents filed when they are deposited with a third-party carrier. However, Moryl fails
to demonstrate that these rules extend to Indiana Code section 34-18-7-3(b). As the trial
court pointed out in the summary judgment order, the issue here does not involve a filing
in this court or with the trial court. Rather, the case involves a filing with Department,
which is an administrative agency.
There are no provisions suggesting that a proposed complaint is considered filed
with the Department—an administrative agency—when it is deposited with a third party
commercial carrier. And contrary to Moryl’s argument that the statutes are ambiguous
regarding the use of a third-party carrier, Indiana Code section 34-18-7-3(b) provides that
2
Appellate Rule 23, entitled “time for filing,” provides:
All papers will be deemed filed with the Clerk when they are:
(1) personally delivered to the Clerk (which, when the Clerk's Office is open for business, shall mean
personally tendering the papers to the Clerk or the Clerk's designee; and at all other times (unless the
Clerk specifies otherwise) shall mean properly depositing the papers into the "rotunda filing drop box"
located in the vestibule of the east second-floor entrance to the State House);
(2) deposited in the United States Mail, postage prepaid, properly addressed to the Clerk; or
(3) deposited with any third-party commercial carrier for delivery to the Clerk within three (3) calendar days,
cost prepaid, properly addressed.
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a proposed complaint is considered filed when a copy of the proposed complaint is
delivered or mailed by registered or certified mail to the Department. The use of other
methods such as first class mail, a third-party carrier, or messenger, commands that filing
a medical malpractice complaint under Indiana Code section 34-18-7-1(b) occurs on the
date that the pleadings or complaint is received.
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.
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See Januchowski v. N. Ind. Commuter Trnsp. Dist., 905 N.E.2d 1041, 1049 (Ind. Ct.
App. 2009) (observing that under the doctrine of expression unius est exclusion alterious,
the enumeration of certain things in a statute necessarily implies the exclusion of others).
In sum, we conclude that Moryl did not file her medical malpractice complaint
within the applicable two-year statute of limitations. Thus, we affirm the trial court’s
grant of summary judgment in the appellees’ favor.
The judgment of the trial court is affirmed.
MAY, J., and MATHIAS, J., concur.
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