*1 1991). Thus,, employ- tort-feasors or included an legislature's use of the limited to the compensation suggests that it under worker's and "commenced" intended er liable word proceedings that employer's limit statute to those the insurer. The conclusion the employer in court. a did no which have been filed the term included liable language damage plain to the of the statute Furthermore, Dictionary Black's Law de- expressed gave and effect to the intent of the proceedings "all "legal proceedings" fines as Consequently, legislature. the reference to law, by brought authorized or sanctioned and unjust quoted by majority enrichment the tribunal, legal or instituted a court or weight lends no to its construction this acquiring of a or the enforcement of (6th statute. remedy." Dictionary Black's Law added). 1991) (emphasis This definition ed. Further, may legislature the well have be- negotiations" demonstrates that "settlement attorney of an should not lieved that the cost ordinarily "legal are not considered to be upon subrogated with- be thrust insurer
proceedings." of a out its consent where commencement unnecessary majority legal proceeding relies on the Alternative Dis- be be- would argu- insured could pute Resolution Rules to buttress its cause of settlement subrogation "legal proceedings" include "settle- take into account the interest of ment preamble negotiations." ment of the the insurer as an economic factor Dispute Alternative Resolution Rules states: acceptable. settlement amount that would be bring adopted "These rules in order to are short, clearly apply does not uniformity dispute some into alternative legal proceeding no had to this case where resolution with the view the interests been commenced at the time the settlement preserved settings parties can be was made. The trial court was correct judicial other than the traditional resolu- Allstate, tion method." affirm. we should pmbl. goes A.D.R. Rule 1.1 on to state: dispute
"Alternative resolution methods recognized
which are include settlement ne-
gotiations...." majority A.D.R. 1. The re- support its claim that
lies this Rule negotiations" are included in the
"settlement general "legal proceedings", description of CUNDIFF, by parents Michael limiting language but it fails to consider the guardians, natural Charles CUNDIFF 1.2. states: Rule This Rule "Alternate (Plain Betty Cundiff, Appellants dispute gov- resolution methods Below), tiffs (1) (2) Mediation, by erned these rules are (4) Arbitration, Summary Mini-hearings, Trials, Jury Judges." Private AD.R. DAVIESS COUNTY HOSPITAL and Clearly, negotiations 1.2. settlement are not Aneja, M.D., Appellees Sarita governed by Dispute Alternative Resolu- (Defendants Below). general tion Rules. I do not think the No. 14A04-9501-CV-11. negotiations" in reference to "settlement may Rule 1.1 used to transform them into be Appeals of Indiana. Court "legal proceedings." Oct. Plan, Inc. Cook v. Humana Health Care quoted Transfer Denied March case, majority legal this involved a proceeding arising compen- out of a worker's prompted
sation claim. The issue
language quoted by majority was wheth- party legally responsible
er the term "a third injury" § personal 84-4-41-8 was 1.C. *2 Franco, L.
Mary Findling, Stephanie A. Barker, Indianapolis, Appellant. Price & Hatfield, Glass, Evans- Danny E. Fine & ville, Appellee.
OPINION DARDEN, Judge. OF THE CASE
STATEMENT appeals the trial Michael Cundiff Plaintiff Daviess granting Defendant court's order County Hospital's (Hospital) motion for sum- mary judgment. part, and remand affirm in and reverse > part.
ISSUE for mi- of limitations Whether Mal- Medical nors contained Indiana's of Michael's consti- practice Act is violative process and rights to due tutional protection.
FACTS The due clause of the Fourteenth Amendment to the United States Constitu- September Michael Cundiff was born on pertinent part: tion County Hospital. 1982 at the Daviess Short- deprive any ... person No state shall birth, ly developed pneumo- after his Michael *3 life, liberty, property, pro- or without due hospital nia. Michael's records reflect cess of law.... given an he was overdose of the antibiotic Kanamycin, Hospital dispute does not 1, § 12 Article of the Indiana Constitution this fact. provides: open; every person, All courts shall be 9, 1988, August adopted On Michael was injury for him in person, prop- done to
by Betty Charles Cundiff. As Michael erty, reputation, remedy by or shall have grew, the Cundiffs noticed he was not devel- normally. They oping later discovered Mi- due course of law. Justice shall be admin- freely, purchase; istered and without com- mentally chael was retarded. The Cundiffs denial; high pletely; speedily, also discovered that Michael had a fre- and without delay. without quency hearing speech impedi- loss and a ment. why In an effort to demonstrate 1.0. 27- 12-7-1(b), injured 1990, which that an approximately
In December of three age minor under the of six has until his or eighth birthday, months after Michael's eighth birthday bring against her suit a by Cundiffs were advised of one Michael's provider, pro- medical violates Kanamyecin Michael's due possi- doctors overdose rights, point cess the Cundiffs bly to Indiana's hearing caused Michael's loss. general of statute limitations later, years September Almost three legal provides: disabilities which proposed complaint the Cundiffs filed a Any person being legal disabilities damages on Michael's behalf with the may when the cause of action accrues Department Hospital Indiana of Insurance. bring years his action within two after summary a judgment alleg- filed motion for disability is removed. ing complaint that Michael's was time-barred by the statute of phrase limitations found Ind. Ind.Code legal 34-1-2-5. The "under 27-12-7-1(b) provides: Code "persons disabilities" eigh- refers less than (18) years age, mentally (b) incompetent, teen of claim, tort, A whether in contract or or out of the United 1-1- States." Ind.Code may brought against not be a health care 4~5(21). provider upon professional services provided or health care that was or that comparing provisions of .C. 27-12- unless the claim 7-1(b) provided should have been 34-1-2-5, argue and LC. the Cundiffs (2) years is filed within two after the date Malpractice "[uJnder Indiana's Medical alleged act, neglect, omission or Act, differently Michael is treated than minor except years that a minor less than six tortfeasors," Appellant's victims of other age eighth has until the minor's birth Brief at "unjustifiably because the Act day to file. infringes on right his fundamental of access responded Hospital's Appellant's to the courts...." The Cundiffs motion Brief Thus, because access to the courts is a funda- by alleging that the statute of limitations was contend, right, mental the Cundiffs the stat- unconstitutional. hearing, After a the trial ute of limitations the Indiana Mal- granted Hospital's motion for practice applies Act as it to minors is uncon- judgment. compelling stitutional unless it furthers DECISION state interest. I. DUE PROCESS recently This court addressed an argue nearly by Cundiffs first identical to that advanced the Cun- 27-12-7-1(b) of limitations found in I.C. vio diffs Ledbetter v. Hunter lates right Michael's constitutional to due plaintiff, N.E.2d wherein the Led- better, at alleged both the federal and state levels. the defendant doctors and EQUAL IL PROTECTION serious, phys- permanent her hospital caused injuries during her birth on and mental ical reasons, essentially the same For filed a medi- 1974. Ledbetter November 27-12-7-1(b) violates Mi claim 1C. Cundiffs years two of her claim within malpractice cal right and state constitutional chael's federal moved birthday. The defendants eighteenth law, they also claim 1.C. process of the to due contending complaint, Ledbetter's to dismiss 27-12-7-1(b) violates Michael's federal 27-12-7- L.C. claim was time barred her protection. constitutional state contention, 1(b). granted the defendant's the Cundiffs trial court support of their motion. in an effort to dem various statistics advance underlying why interest the state onstrate part claimed the appeal, On Ledbetter of lIimi- *4 Malpractice Act's statute the Medical 27-12-7-1(b) violated her provisions of 1.C. in available threat of a reduction tations-the law right process of the to due constitutional was, or no services-sither never healthcare "impinged upon her fundamental it because is, Thus, the Cundiffs longer compelling.2 courts." meaningful access to the right of justification "treating mi posit, no exists for contended, Therefore, gen- at 2. she Id. malpractice claims of medical nor victims persons under statute of limitations eral differently victims of other than minor at 18. Appellant's ..." Brief torts. at I.C. 84-1-2-5 legal disabilities malpractice applied to her medical should be equal protection clause of the Four- claim. part: in teenth Amendment any deny person ... No state shall juris reviewing law from other After case jurisdiction equal protection within its of limita held similar statutes dictions which laws, minor's fundamental tion to be violative of a courts,1 court never access the this 1, § Indiana Constitu- Article 28 of the while by our it was bound theless concluded provides: tion in Johnson v. St. supreme court's decision Assembly shall not The General 585, (1980), N.E.2d 278 Ind. 404 Vincent citizens, citizen, privileges any or class of rejected a chal it considered and wherein immunities, which, upon the same or Malpractice Act's stat lenge to the Medical terms, belong to all citi- equally shall not general statute of limitations and the ute of zens. legal disabilities
limitations
recently
addressed
Again, this court
I, $ 12 of the Indiana
upon Article
in
by the Cundiffs Ledbet-
issue now raised
process
the federal due
and
Constitution
ter,
supreme court
supra.
noted our
clause.
rejected
equal protection
and
this
addressed
Malpractice Act's
challenge to the Medical
Thus,
allegation that
despite the Cundiffs'
applies to minors
limitations as it
statute of
in
supreme court's decision on this issue
our
Johnson,
Rohrabaugh,
as in
supra,
in
as well
advisory opinion
merely an
"is
Johnson
"[qluali-
supra n.
the court stated
wherein
binding precedent," Appellant's Brief
not
is
upon the access to the
of this sort
fications
Ledbetter,
conclude,
in
as we did
at
we
require
do not
in civil matters
courts
supreme court's
are bound
our
that we
justi
compelling interest
furnish a
state to
that 1.C. 27-12-7-
Johnson
determination
Id.,
at 893.
413 N.E.2d
fication."
1(b)
rights of
process
the due
does not violate
Johnson,
grant-
not err in
supreme
The trial court did
court treat
minors.
our
clause of the Four
equal protection
ing Hospital's motion for
ed
Con-
to the United States
teenth Amendment
the due
issue.
Tex.,
661;
(1983),
legislative
648 S.W.2d
v. Votteler
Act
is
1. Sax
[tlhe Medical
Malpractice
Mo.,
(1986),
Hospital
706
care services
response
v. St. Luke's
of health
Strahler
to the reduction
Id.,
public
413
in the state.
available to the
S.W.2d
Johnson, supra, also
N.E.2d at 894. See
Wagoner
Rohrabaugh
274 Ind.
v.
at 589-90.
N.E.2d
court noted
our supreme
summary,
privileges and immunities
the trial court's order
stitution and the
1, §
granting Hospital's
28 of the Indiana
clause found in Article
motion for
judgment
respect
is affirmed with
coextensive,
applied
Constitution as
analysis
determining
the Medi Cundiffs' federal
same
process argu-
state due
Furthermore,
Malpractice
cal
did not offend either the ments.
while we affirm the
Act
Ledbetter,
respect
su
state or federal constitutions.
trial court's order with
to the Cun-
pra
equal protection argument,
diffs' federal
we
court's
reverse
trial
order as to the Cun-
Ledbetter,
However,
recognized
we also
protection
equal
diffs state
supreme
holding
our
court's recent
in Collins
apply
remand with instructions to
the Collins
(1994), Ind.,
Day
of Indiana law that part, Affirmed in and reversed and re- protection analytical a federal meth- part. manded odology alleging special privi- to claims leges or immunities under Indiana Section KIRSCH, J., concurs. given 23 and that 23 should be Section independent interpretation application. RUCKER, J., separate dissents with *5 Id. at T5. opinion. Collins, supreme In our determined RUCKER, independent interpretation applica- that Judge, dissenting. following tion should revolve around the new respectfully disagree I majority's with the analysis: Day decision to remand. In v. Collins First, disparate the treatment accorded Ind., (1994), supreme 644 N.E.2d our legislation reasonably the must be related analytical court set forth new framework to inherent characteristics distin- which evaluating statutory compliance for with Ar- guish unequally the treated classes. Sec- I, ticle Section 28 of the Indiana Constitution. ond, preferential the treatment must be Acknowledging ruling the trial court's uniformly applicable equally available on judg- defendants' motion for persons similarly Finally, to all situated. in ment Ledbetter v. Hunter determining complies whether a statute Collins, prior was issued with or violates Section courts must we remanded the case for further consider- legislative exercise substantial deference light analysis. ation of the new method of discretion. Ledbetter, 652 N.E.2d at the case Id. at 80. us, ruling on before defendants' motion we determined as follows Ledbet- prior was also issued ter: Here, however, scheduling to Collins. when supreme longer our [blecause court no argument specifically oral we directed the equal protection treats the federal clause parties to "familiarize themselves privileges and the state and immunities opinion prepared in Ledbetter and be to dis- coextensive, clause as Johnson can no opinion application cuss that and its to the longer authority stand as the Act parties appropriately facts of this case." The requirements meets the constitutional of complied, August and on 1995 both sides I, § Art. 28 of the Indiana Constitution. presented compelling persuasive argu- Ledbetter, supra Accordingly, inquired at 550. we ments. When we as to what addi- finding might reversed the trial court's order tional evidence be submitted to the remand, statute of limitations I.C. 27-12-7- trial court should we order or what arguments 1(b) might presented additional be to be constitutional the state's clause, remand, privileges possible appellants and immunities and re- counsel for indi- light rely manded for reconsideration in cated that he would on the evidence submitted, analysis required by already new of method Collins. and that substantially presented Id. We do the same here. would be the same as counsel reply from this court. before JONES, Appellant-Petitioner, equivocal. Ronnie somewhat appellees was Collins, Article event, outlined any as the Indiana Constitution I, 28 of Section Indiana, Appellee-Respondent. of STATE upon statutes requirements two imposes No. 49A02-9502-PC-84. or immunities privileges unequal disparate persons: classes of different Indiana. Appeals of of Court legislation must be accorded treatment characteristics to inherent reasonably related 13, 1995. Oct. unequally treated distinguish Dec. Denied Transfer treatment classes, preferential equally uniformly applicable and must be similarly situated. all available before us squarely questions
Id. unequally following: are the Who
include the in this case? compared to be classes
treated alleg- providers who they care
Are the health non- negligence verses
edly engage acts engage allegedly providers who care
health so, different If is the negligence?
in acts of upon dis- the two classes
treatment
tinetive, What characteristics? inherent unequal Is the characteristics? inherent charac- reasonably to such related
treatment hand, *6 un- are the the other On
teristics? of the composed classes here equally treated injured by health
children, allegedly those injured allegedly those providers versus
care differ- providers? Is the care
by non-health of children two classes of the ent treatment distinctive, characteris- inherent upon unequal they how is the
tics? What them? Does reasonably related
treatment charac- the class is how
it make a difference why not? Why or
terized? case, the state nature of this
Given us, representations record before my argument, it is at oral counsel
made in no better is the trial
view very tackle the this court to
position than is is posed here. Remand questions
difficult mer- address on its
unnecessary. should provisions the limitation
its whether of Arti- are violative Malpractice Act
Medical compelled I, I am Therefore
cle Section 28. point. majority on this disagree respects I concur.
In all other