Moryl v. Ransone

987 N.E.2d 1159, 2013 WL 1912665, 2013 Ind. App. LEXIS 217
CourtIndiana Court of Appeals
DecidedMay 9, 2013
DocketNo. 46A04-1112-CT-710
StatusPublished
Cited by2 cases

This text of 987 N.E.2d 1159 (Moryl v. Ransone) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moryl v. Ransone, 987 N.E.2d 1159, 2013 WL 1912665, 2013 Ind. App. LEXIS 217 (Ind. Ct. App. 2013).

Opinion

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 For-ney, 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 [1161]*1161Fed 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 34-18-7-8(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 Mo-ryl did not file her proposed complaint in a timely fashion. More specifically, the ap-pellees 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 [1162]*1162the 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).

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987 N.E.2d 1159, 2013 WL 1912665, 2013 Ind. App. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moryl-v-ransone-indctapp-2013.