FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

ROBERT D. KING, JR. ADAM E. GLASS

DAVID R. THOMPSON DANNY E. GLASS

The Law Office of Robert D. King, Jr., P.C. Law Firm of Fine & Hatfield, P.C.

Indianapolis, Indiana Evansville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

VIRGINIA E. ALLDREDGE AND )

JULIA A. LUKER, AS CO-PERSONAL )

REPRESENTATIVES OF THE )

ESTATE OF VENITA HARGIS, )

)

Appellants-Plaintiffs, )

)

vs. ) No. 82A01-1206-CT-249

)

THE GOOD SAMARITAN HOME, INC., )

)

Appellee-Defendant. )

APPEAL FROM THE VANDERBURGH SUPERIOR COURT NO. 3

The Honorable Robert J. Tornatta, Presiding Judge

Cause No. 82D03-1110-CT-5314

January 31, 2013

OPINION – FOR PUBLICATION

BAKER, Judge 
2

In this case, we consider an issue of first impression, namely, whether and to what 

extent the doctrine of fraudulent concealment tolls the two-year deadline for filing claims 

contained within Indiana’s Wrongful Death Act (the “WDA”). 

Virginia E. Alldredge and Julia A. Luker, as co-personal representatives of the 

Estate of Venita Hargis (collectively, “the Plaintiffs”), filed a wrongful death complaint 

against The Good Samaritan Home, Inc. (“Good Samaritan”) twenty-three months after 

learning that Good Samaritan had allegedly fraudulently concealed the nature of Hargis’s 

death. Concluding that the WDA’s two-year deadline had been equitably tolled but that 

the Plaintiffs nevertheless failed to file their complaint within a reasonable time, the trial 

court granted Good Samaritan’s motion for summary judgment.

The Plaintiffs argue that the two-year time frame required by the WDA for the 

filing of claims is a statute of limitations, not a condition precedent to the filing of a 

wrongful death claim, and that Indiana Code section 34-11-5-1 (the “Fraudulent 

Concealment Statute”) should have applied to toll the statute of limitations such that they 

had a full two years to file their complaint after learning of Good Samaritan’s fraudulent 

concealment. Furthermore, the Plaintiffs argue that the reasonable time standard used by 

the trial court violates equal protection principles and that public policy concerns require 

a uniform standard for determining when the statute of limitations runs after it has been 

tolled by fraudulent concealment.

We conclude that the WDA’s two-year limitations period is in fact tolled by 

fraudulent concealment and that plaintiffs whose wrongful death claims have been 
3

fraudulently concealed beyond the WDA’s limitations period have a full two years after 

the concealment is or should be discovered with reasonable diligence in which to file 

their claims. Accordingly, we affirm the trial court’s judgment in part and reverse in part. 

FACTS1

In November 2006, Hargis was a resident at a nursing home owned and operated 

by Good Samaritan in Evansville. On November 17, 2006, a nurse employed by Good 

Samaritan told Luker, Hargis’s daughter, that Hargis had fallen at the nursing home and 

that she was being taken to the hospital because she had started vomiting a few hours 

after the fall. Because Hargis sometimes suffered from transient ischemic attacks, or 

“mini-strokes,” which had caused her to fall in the past, Luker and the rest of Hargis’s 

family believed Good Samaritan’s story that Hargis had fallen. Appellants’ App. p. 40. 

On November 26, 2006, Hargis died from a head injury purportedly caused by the fall. 

On November 24, 2009, nearly three years after Hargis’s death, a former 

employee of Good Samaritan told Hargis’s daughter Peggy McGee that Hargis’s head 

injury had not been caused by a simple fall as they had previously been led to believe. 

The former employee explained that Hargis had actually been attacked and pushed to the 

floor by another resident of the nursing home, and the head injury that resulted in 

Hargis’s death was caused during this attack.

On December 22, 2010, an estate was opened for Hargis for the sole purpose of 

pursuing a wrongful death claim. The Plaintiffs were named her co-personal 

 

1 We heard oral argument in this case in Indianapolis on January 9, 2013. We commend counsel for their 

able presentations.
4

representatives. On October 27, 2011, the Plaintiffs filed their complaint, alleging that 

Hargis’s death had been proximately caused by the negligence of Good Samaritan and 

that Good Samaritan had fraudulently concealed the true cause of Hargis’s death. 

In lieu of an answer, Good Samaritan filed a motion to dismiss the suit with 

prejudice because, it claimed, the Plaintiffs’ complaint failed to state a claim upon which 

relief could be granted as it was filed more than two years after Hargis’s death. In 

support of its motion, Good Samaritan attached a copy of Hargis’s certificate of death 

and a copy of the probate court docket which showed the date on which Hargis’s estate 

was opened and her personal representatives named. 

Upon motion by the Plaintiffs, the trial court treated Good Samaritan’s motion to 

dismiss as a motion for summary judgment. In its order granting Good Samaritan’s 

motion without a hearing, the trial court acknowledged its agreement with the Plaintiffs 

that fraudulent concealment was applicable to the case. However, citing Southerland v. 

Hammond, 693 N.E.2d 74 (Ind. Ct. App. 1990), the trial court stated that the two-year 

timeframe for filing wrongful death claims “is not a statute of limitations, but a condition 

precedent to the existence of the claim.” Appellants’ App. p. 8. The trial court further 

found that, according to Southerland, fraudulent concealment only creates “an equitable 

exception” that allows a party to institute an action “within a reasonable time” after 

learning information that would lead to the discovery of the truth. Id. Noting that the 

Plaintiffs waited a year after discovering the truth to open Hargis’s estate and nearly two 
5

years to file their complaint, the trial court found that the Plaintiffs’ claim was barred 

because they had waited an unreasonable amount of time to bring the claim. 

The Plaintiffs filed a motion to correct error, claiming that the trial court should 

have applied the Fraudulent Concealment Statute, which they claimed provides for a new 

full two-year limitations period after the concealment is discovered, instead of the

equitable doctrine of fraudulent concealment, which they admitted provides only for the 

filing of a claim within a reasonable time after discovery. Moreover, the Plaintiffs argued 

that because Good Samaritan’s fraudulent concealment lasted beyond the initial deadline 

for filing a wrongful death action, the deadline effectively started over, and they were 

entitled to file their action at any time within two years of discovery. Finally, the 

Plaintiffs argued that the “reasonable time” standard was arbitrary and capricious such 

that it made the WDA unconstitutional as applied to them. Notwithstanding the 

Plaintiffs’ arguments, the trial court denied the motion to correct error on May 3, 2012. 

The Plaintiffs now appeal.

DISCUSSION AND DECISION

Summary judgment is proper only when there is no genuine issue of material fact, 

and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). In 

our review of a summary judgment decision, we view the pleadings and the designated 

materials in a light most favorable to the non-moving party. LCEOC, Inc. v. Greer, 735 

N.E.2d 206, 208 (Ind. 2000). However, when the appellant claims only an error of law, 
6

we review the trial court’s summary judgment decision de novo. Spangler v. Bechtel, 

958 N.E.2d 458, 461 (Ind. 2011). 

Indiana first enacted a wrongful death statute in 1852. Durham ex rel. Estate of 

Wade v. U-Haul Int’l, 745 N.E.2d 755, 758 (Ind. 2001). Like other wrongful death acts 

across the country, this statute was enacted to solve what was perceived to be a gross 

inequity in the common law—that because there was no common law action that allowed 

a person’s family members to recover when another’s wrongful act or omission killed 

their loved one and the person’s own claim died with him, it was often cheaper for a 

defendant to kill his victim than to maim him. W. Page Keeton et al., Prosser and Keeton 

on Torts 945 § 127 (5th ed. 1984). In its present form, Indiana’s WDA states as follows:

When the death of one is caused by the wrongful act or omission of 

another, the personal representative of the former may maintain an action 

therefor against the latter, if the former might have maintained an action 

had he or she, as the case may be, lived, against the latter for an injury for 

the same act or omission. . . . [T]he action shall be commenced by the 

personal representative of the decedent within two (2) years[.]

Ind. Code § 34-23-1-1 (emphasis added).

Good Samaritan urges this Court to hold, consistent with a number of other cases 

previously decided by this Court, that the limitations period within the WDA cannot be 

tolled because the WDA is a non-claim statute created by the legislature in derogation of 

the common law. See Southerland v. Hammond, 693 N.E.2d 74, 77 (Ind. Ct. App. 1998); 

Robertson v. Gene B. Glick Co., 960 N.E.2d 179, 184-85 (Ind. Ct. App. 2011), trans.

denied. In Southerland, this Court said:
7

In Indiana it is well established that the right to maintain an action for 

wrongful death is purely statutory and did not exist at common law. Since 

this right is purely statutory, the two year time period within which an 

action must be commenced is a “condition attached to the right to sue.” In 

Indiana this two year time period is not a statute of a limitation but a 

condition precedent to the existence of the claim. We conclude that the 

wrongful death statute is a non-claim statute, not subject to tolling.

693 N.E.2d at 77. This language was recently repeated in Robertson. 960 N.E.2d at 184.

Notwithstanding that this explanation has been often repeated by panels of this 

Court, the Plaintiffs claim that in light of recent Indiana Supreme Court jurisprudence 

characterizing the WDA’s limitations period as a “statute of limitations provision,” our 

interpretation has been incorrect. See Newkirk v. Bethlehem Woods Nursing & 

Rehabilitation Center, LLC, 898 N.E.2d 299, 299 (Ind. 2008); Technisand, Inc. v. 

Melton, 898 N.E.2d 303, 305 (Ind. 2008). Furthermore, they claim that even if this Court 

has previously refused to allow tolling of the WDA’s limitations period in a number of 

other cases for reasons of lesser consequence, we should nevertheless allow for tolling to 

occur where a wrongful death action has been fraudulently concealed.

We agree with the Plaintiffs that to deny a decedent’s personal representatives the 

ability to file a wrongful death action when such cause of action has been fraudulently 

concealed by a defendant beyond the WDA’s two-year limitations period would allow the 

defendant to take egregious advantage of his or her own malfeasance. In Glus v. 

Brooklyn Eastern District Terminal, 359 U.S. 231 (1959), the United States Supreme 

Court stated:
8

[W]e need look no further than the maxim that no man may take advantage 

of his own wrong. Deeply rooted in our jurisprudence this principle has 

been applied in many diverse classes of cases by both law and equity courts 

and has frequently been employed to bar inequitable reliance on statutes of 

limitations.

359 U.S. at 232-23. Accordingly, we conclude that the WDA’s limitations period is 

tolled when a wrongful death action has been fraudulently concealed by the defendant.2

Having reached this conclusion, it becomes necessary in this case to determine 

whether the WDA’s limitations period starts anew upon the discovery of the fraudulent 

concealment or whether it is tolled only for a reasonable time. The Plaintiffs beseech us 

to apply the Fraudulent Concealment Statute, which provides:

If a person liable to an action conceals the fact from the knowledge of the 

person entitled to bring the action, the action may be brought at any time 

within the period of limitation after the discovery of the cause of action.

Ind. Code § 34-11-5-1. 

Because the original predecessor to this statute was enacted in 1843,3 nine years 

before Indiana’s first wrongful death statute was enacted, we are prohibited from directly 

applying the statute in the context of the WDA. See Guy v. Schuldt, 236 Ind. 101, 105, 

138 N.E.2d 891, 893 (1956) (holding that the Fraudulent Concealment Statute was 

inapplicable to medical malpractice cases because the medical malpractice statute was 

 

2 We note that application of the fraudulent concealment doctrine to the WDA still requires a decedent’s 

personal representative to show not only the underlying negligence that resulted in the decedent’s death 

but also that the underlying negligence has been fraudulently concealed by the defendant. In such cases 

where these issues exist, it may be preferable for the trial court to bifurcate these issues from the issue of 

damages in the interest of saving judicial time and resources. 

3 Revised Statutes of the State of Indiana, ch. 40, § 113 (1843). This statute has been through minor edits 

in the past 150 years, but the significant language has not been materially altered since its original 

adoption. 
9

enacted many years after the Fraudulent Concealment Statute, and thus the Fraudulent 

Concealment Statute could not be considered an “exception” to the statute of limitations 

set forth in the medical malpractice statute). However, we note that subsequent to Guy, 

our Supreme Court has held that where a patient fails to discover a physician’s 

malpractice within the applicable statute of limitations because of a long latency period in 

his or her condition, the patient will have two years from the time that the malpractice 

was discovered or should have been discovered with the exercise of reasonable diligence 

to file a claim. See, e.g., Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind. 1999). 

In rejecting an argument that medical malpractice victims who legitimately 

discover their claims after the statute of limitations has expired only have a reasonable 

time in which to file their claims, the Van Dusen Court noted that “[r]ather than simply 

ignoring the statute of limitations and its two-year time period, . . . the better course is to 

construe or reconstrue the statute in such a way as to further the purposes of the 

legislature without offending the Indiana Constitution.” Id. at 495-96. 

Here, the Plaintiffs contend that imposing a “reasonable time” filing deadline on 

wrongful death claims that have been fraudulently concealed would violate both Article 

1, Section 12 of the Indiana Constitution4and the equal protection guarantee of the 

United States Constitution5. In addressing this issue, we first note that the courts have a 

 

4 Article 1, Section 12 of the Indiana Constitution provides in relevant part, “All courts shall be open; and 

every person for injury done to him in his person, property, or reputation, shall have remedy by due 

course of law. . . .” 

5 U.S. Const. amend. XIV. § 1.
10

duty to interpret statutes in a way so as to avoid constitutional issues. City of Vincennes 

v. Emmons, 841 N.E.2d 155, 162 (Ind. 2006). We also presume the legislature intended 

to avoid unjust or absurd results. Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind. 2002). 

Our Supreme Court has held that in the context of medical malpractice cases 

where a long latency period prevents a patient from discovering a physician’s malpractice 

within the applicable statute of limitations, the medical malpractice statute of limitations 

cannot be constitutionally applied to bar the plaintiff’s action. Martin v. Richey, 711 

N.E.2d 1273, 1282 (Ind. 1999). And in such cases, our Supreme Court has held that the 

plaintiff has a period of time equal to that of the original statutory period in which to file 

the claim. Van Dusen, 712 N.E.2d at 497. 

We see no reason to impose a shorter period of time in the wrongful death context 

when the reason for the plaintiff’s failure to discover the action within the WDA’s twoyear limitations period is the fault of the defendant rather than simply the result of a 

medical condition’s long latency period. In short, it is abhorrent to think that we would 

treat people who have been intentionally defrauded regarding their loved one’s deaths 

worse than others, such as in Martin and Van Dusen, where the defendant’s misfeasance 

has been undiscovered merely on account of nature’s own time frame. 

Accordingly, we conclude that where one fraudulently conceals the existence of a 

wrongful death action beyond the WDA’s two-year limitations period, the decedent’s 

personal representative shall be entitled to commence the action within the lesser of two 

years from the date of the discovery of the cause of action or two years from the 
11

discovery of facts that, in the exercise of reasonable diligence, should lead to the 

discovery of the wrongful act or omission that resulted in the decedent’s death. 

In so construing the WDA, we avoid holding that the WDA’s two-year limitations 

period is unconstitutional as applied to the Plaintiffs under either the Indiana or United 

States Constitutions. See City of Vincennes, 841 N.E.2d at 162. This interpretation also 

allows us to give effect to the two-year time period that our legislature originally thought 

was appropriate for wrongful death claims and to avoid the need for plaintiffs, 

practitioners, and courts to engage in “hair-splitting” to determine exactly what 

constitutes a “reasonable time.” 

We affirm the portion of the trial court’s judgment that held that fraudulent 

concealment could operate to toll the WDA’s two-year limitations period but reverse its 

conclusion that the Plaintiffs had only a reasonable time in which to commence their 

wrongful death action. Instead, as stated above, the Plaintiffs have two years after the 

concealment is or should have been discovered with reasonable diligence in which to file 

their claims. Accordingly, we affirm in part and reverse in part the judgment of the trial 

court.

That being said, we observe that when these types of cases arise, it may be 

preferable for the trial court to bifurcate the issues of negligence and fraudulent 

concealment from the issue of damages in the interest of saving judicial time and 

resources. This is because the application of the fraudulent concealment doctrine to the 

WDA still requires a decedent’s personal representative to show not only the underlying 
12

negligence that resulted in the decedent’s death but also that the underlying negligence 

has been fraudulently concealed by the defendant. 

The judgment of the trial court is affirmed in part, reversed in part, and remanded 

for continuation of the underlying litigation.

RILEY, J., and BARNES, J., concur.