limitations defense in Indiana

2004"A defendant in that situation can only assume that when a trial date is finally set it will conform to the limitations of the rule." , Id.

2003The court said that a defendant agreeing to a continuance before a trial date is set can only assume that when a trial date is finally set, it will conform to the limitations of the rule. 468 N.E.2d at 211 .

2003Six years later in Morrison v. State, 555 N.E.2d 458 (Ind.1990) the court cited O'Donnell concerning delay incurred before a trial date had been set, but ruled that the delay in that case was properly chargeable to the defendant because he had conceded the thirty-nine day period in question in his motion for discharge. 555 N.E.2d at 461 .

2003Six years later in Morrison v. State, 555 N.E.2d 458 (Ind.1990) the court cited O'Donnell concerning delay incurred before a trial date had been set, but ruled that the delay in that case was properly chargeable to the defendant because he had conceded the thirty-nine day period in question in his motion for discharge. 555 N.E.2d at 461 .

1992Conard v. Waugh (1985), Ind.App., 474 N.E.2d 130, 134 .

1990See Harvey, supra; Conard, supra. In such case, the burden then falls upon the non-movant to establish the existence of material facts in avoidance of the limitations defense.

2018Cf. Hughes v. Glaese , 659 N.E.2d 516 , 521 (Ind. 1995) ("[B]y distinguishing the two branches of fraudulent concealment on the basis of whether the physician's concealment was negligent or purposeful, courts can make more appropriate and just determinations as to when defendant physicians should be prevented from asserting the limitations defense.").

2016Rather, procedural default here means that the right of action itself “becomes unenforceable” and is “forever barred.” Id.

2004In support, Allstate directs us two decisions which it contends leads to the conclusion that the limitations clause in its policy bars any and all claims filed after one year of the loss, namely, Young v. Tri-Etch, Inc., 790 N.E.2d 456 (Ind.2003), and Orkin Exterminating Co., Inc. v. Walters, 466 N.E.2d 55 (Ind.Ct.App.1984), trans. de-mied, disapproved on other grounds, Mitchell v. Mitchell, 695 N.E.2d 920 (Ind.1998).

2004We note that the limitations clause in Orkin was not a one-year limitations clause, but rather it limited Orkin's liability to re-treatment. 466 N.E.2d at 56 . 4 .

2004In support, Allstate directs us two decisions which it contends leads to the conclusion that the limitations clause in its policy bars any and all claims filed after one year of the loss, namely, Young v. Tri-Etch, Inc., 790 N.E.2d 456 (Ind.2003), and Orkin Exterminating Co., Inc. v. Walters, 466 N.E.2d 55 (Ind.Ct.App.1984), trans. de-mied, disapproved on other grounds, Mitchell v. Mitchell, 695 N.E.2d 920 (Ind.1998).

2004In support, Allstate directs us two decisions which it contends leads to the conclusion that the limitations clause in its policy bars any and all claims filed after one year of the loss, namely, Young v. Tri-Etch, Inc., 790 N.E.2d 456 (Ind.2003), and Orkin Exterminating Co., Inc. v. Walters, 466 N.E.2d 55 (Ind.Ct.App.1984), trans. de-mied, disapproved on other grounds, Mitchell v. Mitchell, 695 N.E.2d 920 (Ind.1998).

2004In Summers, 719 N.E.2d at 415-16 , the insured suffered a loss, but did not immediately notify the insurer and did not submit a proof of loss form in a timely manner.

1989Loss of the Statute of Limitations defense would not be a loss of a defense "on the merits" that T.R. 15(C) discusses. "[The policy of [T.R. 15(C) ] is to facilitate decisions on the merits." Benke v. Barbour (1983), Ind.App., 450 N.E.2d 556, 558 .

1989Loss of the Statute of Limitations defense would not be a loss of a defense "on the merits" that T.R. 15(C) discusses. "[The policy of [T.R. 15(C) ] is to facilitate decisions on the merits." Benke v. Barbour (1983), Ind.App., 450 N.E.2d 556, 558 .

1984Underscoring the equitable nature of this defense to a limitations claim, the court additionally held that Burns Section 2-609 [now IC 34-1-2-9] which defers commencement of the time a statute of limitations will begin to run, did not apply to the medical malpractice statute of limitations. 138 N.E.2d at 893 . 5 The doctrine announced in Guy pro vides an equitable defense, not an exception to the statute.

1984Nahmias v. Trustees of Indiana University (1983), Ind.App., 444 N.E.2d 1204 .

1967Weidenhammer v. McAdams (1912), 52 Ind. App. 98 , 98 N. E. 883 .

1967Weidenhammer v. McAdams (1912), 52 Ind. App. 98 , 98 N. E. 883 .

1956“Only points decided become the law of the case.” Wine v. Woods (1902), 158 Ind. 388, 391 , 63 N. E. 759 . 1 In Alerding v. Allison (1908), 170 Ind. 252, 258, 259 , 83 N. E. 1006 , the limitations of the doctrine were clearly recognized by this court as follows: *415 *414 “The doctrine of ‘the law of the case,’ as referring to the decision of the court in a particular case on a former appeal, is analogous to the doctrine of former adjudication, but much more limited in its application.

1956“Only points decided become the law of the case.” Wine v. Woods (1902), 158 Ind. 388, 391 , 63 N. E. 759 . 1 In Alerding v. Allison (1908), 170 Ind. 252, 258, 259 , 83 N. E. 1006 , the limitations of the doctrine were clearly recognized by this court as follows: *415 *414 “The doctrine of ‘the law of the case,’ as referring to the decision of the court in a particular case on a former appeal, is analogous to the doctrine of former adjudication, but much more limited in its application.