Indiana Law Review


Recent Developments in Indiana Civil Procedure

Catherine A. Kling*

I. Introduction

During the survey period, the Indiana Supreme Court and Indiana

Court of Appeals issued several significant decisions that contribute to

the development of Indiana civil procedure. By this time, all Indiana
practitioners should be aware of the recent changes in all areas of the

Indiana Rules of Procedure for both trial and appellate practice. Because

these changes already have received attention by commentators,^ they

will not be discussed in detail here. Instead, this Article will focus on

recent Indiana case law that construed the rules and procedural statutes.

Significant areas of development that will be discussed include limitation

of actions, challenges to personal and subject matter jurisdiction, notice

to opposing parties, discovery, pleading and practice under the Com-
parative Fault Act, and reUef from judgment.

II. Limitation of Actions

The Indiana appellate courts decided several important issues con-

cerning statutes of repose and limitations during the survey period. The

most controversial of these was Covalt v. Carey Canada^ Inc. ^ in which

the supreme court, in a 3-2 decision, construed Indiana's statute of

repose for product liability actions based on theories of negligence or

strict Habihty.^ Pursuant to a question certified by the Seventh Circuit

* Law clerk for Indiana Supreme Court Justice Alfred J. Pivarnik, May 1989
to Dec. 1990; law clerk for Indiana Supreme Court Justice Jon D. Krahulik, Dec. 1990

to May 1991.
1. See, e.g., Funk, Survey of Recent Developments in the Indiana Rules of Trial

Procedure in Civil Matters, 23 Ind. L. Rev. 241, 257-59 (1990); Harvey, Rules, Rulings

for the Trial Lawyer, 33 Res Gestae 530 (1990); Harvey, Rules, Rulings for the Trial

Lawyer, 32 Res Gestae 480 (1989); Mulvaney, Fundamental Changes in Indiana Appellate

Procedure or What Happened to Motion to Correct Error?, 32 Res Gestae 472 (1989).

2. 543 N.E.2d 382 (Ind. 1989). Covalt was discussed in the last survey issue, see

Rosiello & Klein, Survey of Recent Developments in Indiana Products Liability Law, 23
Ind. L. Rev. 617, 633-40 (1990), and sharply criticized. However, a discussion of the

case is included in this Article for comparison purposes and to advise attorneys of

opportunities that the holding presents for future cases.

3. Ind. Code § 33-1-1.5-5 (Supp. 1990). The statute provides as follows:
Statute of limitations

Sec. 5(a) This section applies to all persons regardless of minority or legal



602 INDIANA LAW REVIEW [Vol. 24:601

Court of Appeals/ the court held that the statute of repose, which

requires a plaintiff to file an action within ten years after dehvery of

the product to the initial user or consumer, does not apply to cases in

which the plaintiff's injury is caused by a disease that may have been
contracted as a result of protracted exposure to an inherently dangerous

foreign substance.^ In such cases, the court held, the action must be

brought within two years after the plaintiff discovers, or should have

discovered, the disease and its cause. This discovery rule was announced

in Barnes v. A.H. Robins Co.^ for determining when a cause of action
for product liability accrues.

The court specifically distinguished Dague v. Piper Aircraft Corp.,^
which held that in product HabiUty actions, the legislature intended to

create an outer limit of ten years from the date the product was first

placed into the stream of commerce within which to file suit.^ This

distinction exists because asbestos is an inherently dangerous substance

which causes a disease that does not manifest itself until many years
after entering the body, whereas Dague involved a one-time occurrence
resulting in immediate injury.^ The most notable reason for the court's

decision to make an exception to the bar created by the statute of repose
in cases involving asbestos-related diseases is that *'the primary purpose

of statutes of repose, that of recognizing the improvements of product

design and safety that come with time, is not served in cases involving
asbestos and its related diseases'"^ because asbestos will not become any

safer with time. The court also noted, for comparison purposes, as it
had in Barnes, that the legislature provided for a discovery rule for

disability. Notwithstanding I.C. 34-1-2-5, it applies in any product liability action

in which the theory of liability is negligence or strict liability in tort.

(b) Except as provided in section 5.5 of this chapter, a product liability action

must be commenced within two (2) years after the cause of action accrues or
within ten (10) years after the delivery of the product to the initial user or

consumer. However, if the cause of action accrues at least eight (8) years but

less than ten (10) years after that initial delivery, the action may be commenced
at any time within two (2) years after the cause of action accrues.

Id.

4. Covalt V. Carey Canada, Inc., 860 F.2d 1434 (7th Cir. 1988).

5. Covalt, 543 N.E.2d at 385.

6. 476 N.E.2d 84 (Ind. 1985).
7. 275 Ind. 520, 418 N.E.2d 207 (1981).
8. Id. at 525, 418 N.E.2d at 210.

9. Covalt, 543 N.E.2d at 386. In Dague, the plaintiff's husband died two months

after his plane crashed. The crash occurred more than ten years after the plane was first
placed in the stream of commerce. Dague, 275 Ind. at 522, 418 N.E.2d at 209.

10. Covalt, 543 N.E.2d at 386 (citing Knox v. A C & S, Inc., 690 F. Supp. 752,
760 (S.D. Ind. 1988)).



1991] INDIANA CIVIL PROCEDURE 603

workers exposed to radiation who bring an action pursuant to the
Occupational Diseases Act.''

The majority opinion in Covalt produced two vigorous dissenting
opinions by Chief Justice Shepard and Justice Dickson. '^ Both dissenters

found that the statute is unambiguous and clearly requires courts to bar

any product liability actions sounding in strict liability or negligence that

are not brought within the ten-year period of repose.'^ They contended
that the majority was improperly rewriting the statute by creating an

exception to the repose period for asbestosis victims.

Indiana lawyers should note that the holding of the Covalt majority

has been superceded by statute. '"* For asbestos-related actions, the leg-

islature expressly provided for an exception to the ten-year repose period

and applied a discovery rule instead.'^ Therefore, Covalt is not necessarily

significant for its holding as it relates specifically to asbestosis claims.

The importance of Covalt is its potential future applicability to claims
involving similar foreign substances that cause illness long after being

introduced into the body. The majority acknowledged this possibility
when it reasoned that **[a]sbestos and naturally occurring substances like
it are not subject to design and safety improvements."'^ The other aspect
of Covalt that lawyers should note is Justice Dickson's dissenting opinion,

which suggests a willingness to re-examine the statute of repose for

violations of the Indiana Constitution. Although noting that Dague held
the statute did not violate Article I, section 12,'^ this opinion suggests

that other opinions of the court appear to indicate some equivocation
on constitutional issues. Additionally, Justice Dickson appears to be

willing to examine the statute under Article I, section 23.'^ This analysis

would appear to apply to all potential product liability plaintiffs, not

just those suffering illnesses from exposure to substances similar to

asbestos. Attorneys representing potential product liability plaintiffs, whose

11. Id. at 384 (citing Ind. Code § 22-3-7-9(0(2) (1988)).
12. Id. at 387-90 (Shepard, C.J., and Dickson, J., dissenting).

13. Id.

14. See iND. Code § 33-1-1.5-5.5 (Supp. 1990).
15. Id.

16. Covalt, 543 N.E.2d at 386 (emphasis added).

17. Article I, § 12 of the Indiana Constitution states:

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. Justice shall

be administered freely, and without purchase; completely, and without denial;

speedily, and without delay.

18. Article I, § 23 of the Indiana Constitution states:

The General Assembly shall not grant to any citizen, or class of citizens, privileges

or immunities, which, upon the same terms, shall not equally belong to all

citizens.



604 INDIANA LAW REVIEW [Vol. 24:601

claims would otherwise be barred by the statute of repose, might consider

acting on this advice from Justice Dickson.

The court of appeals discussed the discovery rule as it applies to

the statute of limitations in Allied Resin Corp. v. Waltz.^^ The issue in

Allied Resin concerned when the **discovery" actually occurred for

purposes of beginning the two-year statute of limitations of a product

liability action. Waltz filed suit against two manufacturers for injuries

he allegedly received from working with chemicals they manufactured.

The evidence indicated that Waltz began feeling symptoms of nasal

congestion and fatigue about one year after beginning work at the business

that used the defendants' chemicals. His symptoms gradually worsened

and he received various treatments over the next several years, including

surgery and allergy injections. Although Waltz asked one doctor on June

20, 1984 whether exposure to the defendants' chemicals could have caused

his symptoms, no conclusive diagnosis confirmed his suspicions until

early 1986, approximately four years after he began working with the

chemicals.

The court of appeals cited Barnes v. A.H. Robins Co.y^^ which

stated that a cause of action accrues for purposes of the statute of

limitations when the plaintiff discovers, or should have discovered, the
injury and that it was caused by the product or act of another.^^ The

court then concluded that Waltz did not discover his cause of action

until the diagnosis in early 1986 which connected his symptoms with

the chemicals manufactured by the defendants.^^

An injured truck driver filing for benefits pursuant to the Worker's
Compensation Act," who attempted to apply the discovery rule to his
case was not as fortunate. In Ingram v. Land-Air Transportation Co.^^^

a case involving a two-year statute of limitations, the court of appeals

ruled that Samuel Ingram filed his claim for benefits too late when he
submitted his claim more than two years following the accident in which
he injured his shoulder. He was examined shortly after his accident,
but doctors concluded he had no serious injury. After his pain worsened,
he consulted another physician who discovered a disabling injury that
would require corrective surgery. However, this diagnosis came almost
three years after the accident. Ingram argued in favor of a discovery

rule and that the time limitation for filing claims with the Worker's

19. 559 N.E.2d 390 (Ind. Ct. App. 1990). This case also involved § 33-1-1.5-5,

quoted supra note 3. See also Burks v. Rushmore, 534 N.E.2d 1101 (Ind. 1989). Burks

was discussed in the previous survey issue. See Talley, Survey of Recent Developments

in Tort Law, 23 Ind. L. Rev. 585, 610-11 (1990).
20. 476 N.E.2d 84 (Ind. 1985).

21. Allied Resin, 559 N.E.2d at 393.

22. Id. at 394.

23. iND. Code §§ 22-3-3-1 to -31 (1988).
24. 537 N.E.2d 532 (Ind. Ct. App. 1989).



1991] INDIANA CIVIL PROCEDURE 605

Compensation Board should begin when the injury becomes manifest.
The court noted that in 1947, the Legislature changed the language

of the time limitations provision in the Act so that the time which began

to run from **the injury'' now begins to run from **the occurrence of
the accident. "^^ This change in the statutory language, the court con-

cluded, reflected legislative intent to require specifically that claims be

filed within two years after the employee's accident.^^

Although Covalt is considered by some to be an aberration of judicial
legislation,2^ it demonstrates, along with Allied Resin and Ingram, when
a discovery rule may be applied to a limitations statute and when it
may not. When the statute uses language such as **when the cause of
action accrues," a discovery rule appears to be applicable. This language

appears in section 33-1-1.5-5 and in the general limitations statute.^*

Language using **occurrence of the accident" indicates that the discovery

rule should not apply. In addition to the Worker's Compensation Act,

the notice provisions of the Indiana Tort Claims Act^' is an ^'occurrence"

statute.

The supreme court considered three cases concerning timeliness of
fiUng the notice of claim pursuant to the Indiana Tort Claims Act.^°

The Act requires notice to be filed with the appropriate government
entity within 180 days after a loss^' occurs for which the government

is allegedly liable. ^^ This notice must be sent by registered or certified

mail or in person." The first two cases, Wallis v. Marshall County
Commissioners^^ and Boger v. Lake County Commissionersy^^ may be
read together. In Wallis, the plaintiffs were injured in an automobile

accident allegedly caused by the county's negligent maintenance of a

stop sign. They mailed their notices of claims by certified mail on the

180th day after the accident occurred and the county received them the

following day. The trial court granted the government's motion for

summary judgment based on the conclusion that notice was not timely,
and the court of appeals agreed.^^ The supreme court vacated the opinion

of the court of appeals and reversed the trial court.^'^

25. Id. at 533 (citing Ind. Code § 22-3-3-3 (1988)).
26. Id.

27. See supra notes 2, 12.

28. iND. Code § 34-1-2-2 (1988).
29. Id. §§ 34-4-16.5-6 and -7.

30. Id. §§ 34-1-16.5-1 to -22 (1988 and Supp. 1990).

31. M § 34-4-16.5-2(6) (Supp. 1990).
32. Id. §§ 34-4-16.5-6 and -7 (1988).

33. Id. § 34-4-16.5-11.

34. 546 N.E.2d 843 (Ind. 1989).

35. 547 N.E.2d 257 (Ind. 1989).

36. Wallis V. Marshall County Comm'rs, 531 N.E.2d 1223 (Ind. Ct. App. 1988).

37. Wallis, 546 N.E.2d 843.



606 INDIANA LAW REVIEW [Vol. 24:601

The supreme court recited the requirement contained in section 34-

4-16.5-7 of the Act, which requires **filing" within 180 days of the

occurrence, and noted that the Act does not define "filing.'*^^ The court

did acknowledge, however, that some notices mailed within the 180-day

period might not be received by county officials until after the 180th

day.^^ The court then compared the language of the present Act with

the language of its predecessor, which required notice **to be received

by some such municipal official within sixty (60) days after the oc-

currence . . . .""^ The court concluded that the new wording indicated
legislative intent that ** filing*' occurred upon mailing in cases in which

notices were mailed.'*^

In Boger, the plaintiff sued the county for injuries received in an

automobile accident allegedly caused by the county's failure to remove

a fallen tree within the right-of-way. She did not file her notice until

183 days after her accident. However, the 180th day was a Saturday

and the 182nd day, Monday, was a legal holiday because it was the
day after Christmas. Therefore, the next day after the 179th day to

mail the notice would have been on the 183rd day. The court referred

to Indiana Trial Rules 6(A)(3) and (4), which state that the time period

for filing shall exclude the last day if it falls on a holiday or a day

when the appropriate office for filing is closed."*^ Therefore, the court
concluded, mailing on the 183rd day was timely in this case because

the claimant was precluded by the holidays from mailing by the 180th

day.

From Wallis and Boger^ it appears that practitioners can safely
conclude that **filing" of a tort claim notice against a government entity

is done on the day the notice is mailed by certified or registered mail.

If the last day of the 180-day period falls on a day when the receiving
office is closed, such as a Saturday, Sunday, or legal holiday, then the

claimant can mail the notice on the next day when the appropriate office
is open, even if that day falls outside the 180-day period.

In City of Lake Station v. Moore Real Estate^^^ the supreme court
analyzed the issue of when a loss occurs for purposes of beginning the
180-day period. Moore Real Estate applied for a building permit from
the city's building commissioner, and the commission discussed the ap-

plication at two of its meetings in March and April of 1985. At the
second meeting, held on April 11, 1985, the commission decided to table

38. Id. at 844.

39. Id.

40. Id.

41. Id.

42. Boger, 547 N.E.2d at 258.

43. 558 N.E.2d 824 (Ind. 1990).



1991] INDIANA CIVIL PROCEDURE 607

the permit application in order to discuss it with the city attorney. After

contacting the city attorney several times over the next several months

and receiving no action on the permit application, Moore filed a notice
of claim on October 12, 1985. Moore then filed suit on October 18,
1985.

Finding that Moore's loss occurred on April 11, 1985, the date the

commission tabled its application for a building permit, the court of

appeals held that Moore did not timely file its notice of claim and that
the trial court erred in failing to grant the city's motion to dismiss.''^

The supreme court disagreed and vacated the court of appeals's opinion.'*^
The supreme court agreed with Moore that the city committed a '* con-
tinuing wrong" because the commission never decided to grant or deny
the application.'** The actual date of the loss was incapable of being
precisely determined. It did not appear that the commission would deny

the application until sometime in October of 1985, when Moore's attorney
learned from the city attorney that he was going to tell the commission

that the proposed building did not meet certain building requirements.

The court also noted:

Accepting Lake Station's argument [that the loss occurred at

the April 11th meeting] would permit government bodies to

immunize themselves from tort claims simply by delaying a

decision until the 180-day notice period expires. The notice pro-

vision is justified as a device providing a period for negotiation

and possible settlement. It should not provide a method for

evading responsibility through inaction."*^

Realizing that it would be unfair to penalize Moore for the city's inaction,
the court held that its notice of claim was timely filed on October 12,
1985.^8

One issue remains unanswered by this case. If Moore had waited
several more months before filing its notice of claim, assuming it acquired

no knowledge of the possibility that its application might be denied,

when would the loss be said to have occurred? Certainly, Moore had
the responsibility of promoting action by the city at some point. The

holding in this case should induce government entities to act quickly on

requests such as this. If they do not, potential claimants should carefully

maintain records of all communications with the government on such

44. City of Lake Station v. Moore Real Estate, 537 N.E.2d 61, 62 (Ind. Ct. App.

1989).

45. Lake Station, 558 N.E.2d at 825.

46. Id.

47. Id. at 827.

48. Id.



608 INDIANA LAW REVIEW [Vol. 24:601

matters and file their claims before an undue length of time passes, as

Moore did here.
The appellate court also addressed, in Barton-Malow Co. v. Wil-

burn,*^ an issue of first impression concerning the effect an appointment

of a guardian for an incompetent ward would have on the tolling of

the statute of limitations for an action the ward might have against a

defendant. The general statute of limitations, which applies to this case,
requires a personal injury action to be brought within two years after

the cause of action accrues.^^ However, those under legal disabilities

may file actions within two years after their disabilities are removed.^*
On March 18, 1985, Bill Wilburn suffered a work injury that rendered

him incompetent to manage his own affairs. His wife, Janet, became
his legal guardian on June 25, 1985, and filed suit on his behalf against

Barton-Malow Company on September 2, 1988. Barton-Malow moved
for summary judgment on the basis that the suit was not filed within
the applicable two-year statute of limitations.

As the court of appeals noted, all parties agreed that the normal
limitations period is two years and that the statute of limitations has

a savings clause for those suffering a legal disability. This clause allows

filing of suit within two years after the disability is removed. However,

Barton-Malow contended that the legal disability was removed for pur-

poses of tolling the statute of limitations when Janet was appointed as
Bill's guardian, and therefore suit should have been filed within two

years of that date, or by June 25, 1987. The court of appeals agreed

with the defendant and held the suit was barred because it was not

timely filed." The court acknowledged that most jurisdictions hold that

the appointment of the guardian does not remove the legal disability

for purposes of their limitations statutes. However, the court noted

Indiana's guardianship statute imposes an affirmative duty on the guard-

ian to bring all necessary actions on the ward's behalf," whereas the

other state guardianship statutes are permissive.

The Indiana Supreme Court vacated this holding of the court of

appeals.''* The court held that the phrase **under legal disabilities," as
used in the savings clause, includes those of unsound mind and that
appointment of a guardian does not change this fact of mental un-

49. 547 N.E.2d 1123, 1124 (Ind. Ct. App. 1989), affd in part and vacated in
part, 556 N.E.2d 324 (Ind. 1990).

50. Ind. Code § 34-1-2-2 (1988).
51. Id. § 34-1-2-5.

52. Barton-Malow Co., 547 N.E.2d at 1125.

53. Id. (citing Ind. Code §§ 29-3-7-5, 29-3-8-1 (1988).
54. Barton-Malow Co., Inc. v. Wilburn, 556 N.E.2d 324 (Ind. 1990).



1991] INDIANA CIVIL PROCEDURE 609

soundness. ^^ Therefore, the appointment does not terminate the legal

disability.^^ The court concluded that the suit on Bill's behalf was timely
filed.

The supreme court agreed with the court of appeals that Janet's
claim for loss of consortium was barred by the two-year statute of

limitations.^'' The rationale of the court is that the claim for loss of
consortium is a separate and independent cause of action that need not

be joined with the injured spouse's claim.^^ Therefore, Janet's loss of

consortium claim accrued, and the limitations period began to run, on

March 18, 1985.^9

The implications of the supreme court's holding for Indiana defen-

dants is that they may remain potentially liable to some plaintiffs for
many years after an accident occurs. To avoid the detrimental impact
arising from such uncertainties, defendants should consider conducting

early discovery while substantive facts remain fresh and settling cases

involving incompetent potential plaintiffs. The goal is to resolve issues

of liability in a more timely manner.

In another case of first impression in Indiana, the court of appeals

addressed the effect of a conformity clause in a contract in which the

parties agree to a limitations period for filing actions that is shorter

than the statutory limitations period. In Meridian Mutual Insurance Co.

V. Cavaletto,^ the applicable statutory Umitations period was ten years.

By contract, the parties shortened the time limitation to one year.

However, the contract also contained a conformity clause stating that

all provisions in the contract that were in conflict with applicable state

law were amended to conform with the state statutes. The question

before the court was whether, for purposes of the conformity clause,

the contractual limitations period was in conflict with the statutory

limitations period.^' The court followed a line of cases from other

jurisdictions that held that no conflict exists in such situations.^^ There-

fore, the conformity clause would not apply to change the limitations

period unless the statute prohibits a contractual shortening of the Hm-

itations period." Because Indiana's statute of limitations contains no

55. Id. at 325 (citing Ind. Code § 34-1-67-1(6) (1988)).
56. Id.

57. Id.

58. Barton-Malow Co., 547 N.E.2d at 1125-26.

59. Id.

60. 553 N.E.2d 1269 (Ind. Ct. App. 1990).

61. Id. at 1270.

62. Id.

63. Id. at 1271.



610 INDIANA LAW REVIEW [Vol. 24:601

such prohibition, the parties were bound by the one-year limitations

period contained in the contract.^

III. Jurisdiction

The Indiana appellate courts examined several cases in which one

party challenged the trial court's in personam or subject matter juris-

diction. These challenges to the court's authority to act are generally

brought as motions to dismiss under Indiana Trial Rule 12(B).^^ These

motions do not convert to summary judgment motions when accompanied
by affidavits or other supplemental information. Therefore, successful

challenges to jurisdiction do not bar subsequent actions in courts with

proper jurisdiction.^^

A. Personal Jurisdiction

Indiana courts acquire personal jurisdiction over nonresidents pur-

suant to Indiana Trial Rule 4.4. Under this rule, Indiana courts are said

to apply a two-step analysis: (1) whether the defendant's acts giving rise

to the suit are among those listed in Rule 4.4(A)(1) to (7), and (2)
whether an Indiana court's assertion over the nonresident complies with

due process requirements.^'' The recent decisions on personal jurisdiction

reflect a further refinement of the minimum contacts test to determine
compliance with due process.^^ In In re Support of Seligman,^^ the court

of appeals held that the father of a child who resided in Indiana and
whose legal guardianship was established in her aunt in a separate action

did not have sufficient contacts with Indiana for an Indiana court to

obtain personal jurisdiction over him for purposes of issuing a child

support order. The father, who originally resided in Florida with his
daughter, apparently consented to the child's aunt becoming her legal

guardian. After the Indiana court ordered guardianship in the aunt, the

father wrote a letter to the court objecting to its order. The court set

64. Id.

65. Ind. Trial Rule 12(B)(1) refers to lack of subject matter jurisdiction and 12(B)(2)

refers to lack of personal jurisdiction. Ind. R. Trial P. 12(B)(1), (B)(2).

66. See 1 W. Harvey, Indiana Practice 587, 598, and Supp. 46 (West 1987 and
Supp. 1990), and cases cited therein.

67. 1 W. Harvey, Indiana Practice 121, 153 (West 1987).
68. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (For court's

personal jurisdiction over nonresident defendant to comply with due process, defendant

must "have certain minimum contacts with it such that the maintenance of the suit does
not offend 'traditional notions of fair play and substantial justice.'" (citations omitted)),

cited in Tandy Computer Leasing v. Milam, 555 N.E.2d 174, 177 n.3 (Ind. Ct. App.

1990). See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980).
69. 542 N.E.2d 1030 (Ind. Ct. App. 1989).



1991] INDIANA CIVIL PROCEDURE 611

a hearing on the matter, but the father never appeared. However, a

few days later, the father sent a letter to the aunt authorizing her to

tend to the child's medical needs and informing her of the child's medical

insurance coverage. The father then cancelled that insurance without
notice to the aunt, and the child later incurred significant medical costs.

After paying the medical costs, the aunt filed an action for a support

order requiring the father to reimburse her. The trial court denied the
father's motion to dismiss for lack of personal jurisdiction over him

and entered a support order. ^^

The court of appeals reversed. The court noted that the jurisdictional
requirements for the guardianship differed from those for the child

support order. To establish guardianship over the child's estate, the
guardianship court did not need personal jurisdiction over the father

because the child's Indiana domicile and her ownership of property in

Indiana were legitimate bases for the court to have jurisdiction to act

on such a matter.^' The guardianship over the child's person must comply

with the Uniform Child Custody Jurisdiction Act (UCCJA).^^ jhe UCCJA
gives a court of the state in which the child resides authority to award

custody to an in-state resident even if the court would not be able to

exercise personal jurisdiction over one parent. ^^ Therefore, as the trial

court's personal jurisdiction over the nonresident father had not yet been

established by the guardianship order, the court still had to find that

the father had sufficient minimum contacts with Indiana in order to
exercise long-arm jurisdiction.^"^ Because he had none, the court held the

trial court lacked jurisdiction to order him to pay child support.^^ The

father's communications with the guardianship court and the aunt did

not constitute such sufficient minimum contacts because the father had
never been in Indiana and had no other contacts with the state. This

case provides further guidance to Indiana attorneys practicing in the

area of domestic relations, and estabhshes once again the separability

of different aspects of divorce, child custody, and support. Although

the case did not involve a divorce, its holding concerning jurisdictional

requirements in support orders is applicable in those situations.

A unanimous court of appeals held that a nonresident defendant
who is not subject to the jurisdiction of an Indiana court may waive
jurisdiction by requesting some affirmative relief from that court. In

70. Id. at 1031.

71. Id. at 1032.

72. See Ind. Code § 31-1-11.6-1 to -25 (1988 and Supp. 1990).
73. iND. Code § 31-1-11.6-3 (1988). See In re Marriage of Hudson, 434 N.E.2d

107, 117 (Ind. Ct. App. 1982).
74. See Ind. R. Trial P. 5.5(A).

75. In re Seligman, 542 N.E.2d at 1032.



612 INDIANA LAW REVIEW [Vol. 24:601

Adams v. Budgetei Inns, Inc.,^^ Adams, an Indiana resident, sued Budg-
eted which does no business in Indiana, in an Indiana court following

an accident that occurred at a Budgetei Inn in Wisconsin. The court

of appeals found that Budgetei waived the question of personal juris-

diction by voluntarily appearing in the action, requesting an extension

of time to plead, and filing a motion for change of venue. Noting that

the lack of in personam jurisdiction must be timely raised at trial or

it is waived, the court held that Budgetei voluntarily submitted to the

jurisdiction of the Indiana trial court by appearing and seeking affirmative

relief.^^ The court of appeals also found that the trial court erred in

attempting to divest itself of jurisdiction under Trial Rule 4.4(C)'s more

convenient forum provision because the court had not obtained in per-

sonam jurisdiction under Trial Rule 4.4(A).^* The court of appeals's
narrow interpretation of Trial Rule 4.4(C) that Trial Rule 4.4(C) only

applies when jurisdiction is established under Trial Rule 4.4(A) appears
to be a new question of law in Indiana. In addition, the question of
waiver of in personam jurisdiction by making a general appearance and

requesting an extension of time and a change of venue appears to be

in conflict with Trial Rule 12. Thus, the Indiana Supreme Court heard

oral argument in this case on January 23, 1991.

Adams is distinguishable from Alberts v. Mack Trucks, Inc.y''^ in
which the court of appeals held that serving interrogatories to the plaintiff

does not waive personal jurisdiction by the defendant. ^° The reason for
the distinction is that in Adams, the defendant sought some sort of
affirmative relief from the trial court, and in Alberts, it did not. Because

interrogatories do not need to be filed with the trial court, no action

by the trial court had been requested. The defendant does not seek the

court's assistance unless, for example, it files a motion to compel answers

to interrogatories pursuant to Indiana Trial Rule 37.^'

When analyzing Seligman in light of Adams and Alberts, one question
arises that apparently was not raised by the aunt in Seligman. Did the

child's father waive any challenge to the court's jurisdiction when, in

the guardianship action, he sent a letter to the court objecting to the

76. 550 N.E.2d 346 (Ind. App. 1990).
77. Id. at 348.

78. Id.

79. 540 N.E.2d 1268 (Ind. Ct. App. 1989). For a discussion of Alberts with regard

to its holding on who carries the burden of presenting evidence when personal jurisdiction
is challenged, Funk, Survey of Recent Developments in the Indiana Rules of Trial Procedure

in Civil Matters, 23 Ind. L. Rev. 241, 251-53 (1990).

80. Alberts, 540 N.E.2d at 1272.

81. Id. The defendant can still preserve its jurisdictional defense by fihng a T.R.

12(B)(2) motion to dismiss before seeking other relief from the court. See Ind. R. Trial

P. 12(B)(2).



1991] INDIANA CIVIL PROCEDURE 613

guardianship order? It is true that the guardianship was established in

a prior action and that the father never appeared in court even after

sending his letter of objection. However, the letter could be interpreted

as a request for affirmative relief which, in fact, induced the guardianship

court to set the matter for a hearing. The court of appeals' opinion
does not reveal whether such an argument was made.

A defendant can also consent by contract to a state's long-arm
jurisdiction over him before suit arises. Tandy Computer Leasing v.
Milam^^ involved an Indiana resident, Milam, who signed a computer
leasing agreement with Tandy, a Texas corporation that has offices in

Indiana. The agreement provided, in part, that Milam would submit to
the Texas courts' jurisdiction. Tandy obtained judgment against Milam
in a Texas court and was attempting to enforce it in Indiana. The court

of appeals upheld this type of agreement so long as it is freely negotiated

and not unreasonable or unjust." The court remanded the case to the
trial court to determine those issues. The court noted that absent the
jurisdictional consent provision, Milam would not be subject to a Texas
court's jurisdiction because his activities did not establish the certain

minimum contacts required for a Texas court to assert jurisdiction over
him. Therefore, this case turned on the validity of the contract provision

at issue. Some of the factors used to determine the validity of forum
selection clauses are the relative bargaining positions of the parties,*"*

whether the clause is prominently set out or hidden in the contract,*^

and whether the evidence reveals that the parties actually negotiated the

provision.*^

In Ryan v. Chayes Virginia, InCy^"^ the court of appeals discussed
the application of the "fiduciary shield doctrine" when a plaintiff sues
both a corporate defendant and, in their individual capacities, its non-

resident officers. This equitable doctrine apparently has never been ap-

plied in Indiana state appellate courts. However, the court found sufficient

authority from federal courts located in Indiana and courts of other

jurisdictions discussing this issue.** In this case, Ryan sued CV, Inc.,
Indiana, the corporation, and its officers, Astromsky, Perelman, and

82. 555 N.E.2d 174 (Ind. Ct. App. 1990).

83. Id. at 176 (quoting Burger King v. Rudzewicz, 471 U.S. 462, 472 n.l4 (1985)).

See also The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972).
84. The Bremen, 407 U.S. at 12-13; L.A. Pipeline v. Texas Eastern Products

Pipeline, 699 F. Supp. 185, 188 (S.D. Ind. 1988) (disparity in size of parties does not

necessarily invalidate clause).

85. L.A. Pipeline^ 699 F. Supp. at 188; Tandy Computer Leasing v. Terina's Pizza,

Inc. 784 P.2d 7, 8 (Nev. 1989).

86. Terina's Pizza, 784 P.2d at 8.

87. 553 N.E.2d 1237 (Ind. Ct. App. 1990).

88. Id. at 1239-40.



614 INDIANA LAW REVIEW [Vol. 24:601

Bergman, for wrongful termination of employment, breach of contract,

detrimental reliance, and fraud in the inducement. The trial court found

that Perelman and Bergman were Pennsylvania residents and acted only

within the scope of their corporate duties in their dealings with Ryan.*^

Under these circumstances, the corporate officers are not subject to the

long-arm jurisdiction of the state in which they do not reside. The court

of appeals noted that an exception to the fiduciary shield doctrine exists

"if the corporation is a *sham,' in that it lacks sufficient assets to

respond in damages to a suit or is the defendant's alter ego."^ This

sounds somewhat similar to cases in which courts pierce the corporate

veil in order to subject corporate officers to personal liability in ap-

propriate cases. For example, in Hyatt International Corp. v. Inversiones

Los Jabillos,'^^ a federal district court refused to apply the "fiduciary

shield" doctrine in a case in which a plaintiff alleged the defendant

corporation was a mere instrumentality of the individual defendant to

conduct the individual's personal business.^^ However, the Second Circuit

Court of Appeals has cautioned that the fraud element required in

corporate veil-piercing cases need not be present to apply the exception

to the fiduciary shield doctrine.^^

B. Subject Matter Jurisdiction

In an original action. State ex rel. Might v. Marion Superior Court,^^

the Indiana Supreme Court examined a situation that represented the

difference between subject matter jurisdiction to hear a general class of

cases, the absence of which is not waivable, and subject matter jurisdiction

to hear a particular case within that general class, the absence of which

is waived if not timely raised. In 1984, after Nancy Hight filed a petition
for dissolution of marriage from Mark Hight, the trial court entered a
dissolution decree which noted that both parties agreed that Mark was
not the biological father of Nancy's child, but Mark acknowledged the
child to be his. The trial court then ordered Mark to provide child
support for the child and ordered visitation rights for Mark and the
child. ^^ In 1989, Mark filed petitions with the Marion Superior Court

89. Id. at 1240.

90. Id. at 1240 n.4 (citations omitted).

91. 558 F. Supp. 932 (N.D. 111. 1982).

92. Id. at 936. See also Bulova Watch Co. v. K. Hattori and Co., 508 F. Supp.

1322, 1348 (E.D. N.Y. 1981) ("fiduciary shield" doctrine should not apply if corporation

lacks sufficient assets to respond or is mere shell used to conduct individual's personal

business).

93. Marine Midland Bank v. Miller, 664 F.2d 899, 903 (2d Cir. 1981).
94. 547 N.E.2d 267 (Ind. 1989).

95. Id. at 268.



1991] INDIANA CIVIL PROCEDURE 615

regarding his visitation rights, alleging Nancy wrongfully denied visitation.
In response, Nancy filed a motion to dismiss, alleging the trial court
lacked subject matter jurisdiction over the case because the child was

not a child of both parties to the marriage^ and, therefore, the trial

court's visitation order constituted a void order incapable of enforcement.

After her motion to dismiss was denied, Nancy filed a petition for a
writ of prohibition with the Indiana Supreme Court to prevent the

Marion Superior Court from hearing Mark's petitions.

The supreme court held that the Marion Superior Court was entitled

to hear this case because the dissolution court had subject matter ju-

risdiction over this type of case, and its authority to act was not nullified

by the fact that the child was not of both parties to the marriage as

required by Indiana Code section 31-1-11.5-2.'^ Specifically, the court
stated:

Subject matter jurisdiction refers to the power to hear and

determine a general class or kind of case. The absence of subject
matter jurisdiction, an issue not subject to waiver, renders a

judgment void and open to collateral attack. The parties by
consent or agreement cannot confer subject matter jurisdiction

on a court.

[I]f a tribunal possesses the power to determine cases of the

general class to which the particular case belongs, it possesses

subject matter jurisdiction to consider the particular case, absent

specific and timely objections to the jurisdiction of such particular

case. ... A judgment of a court without jurisdiction of the
particular case within the [general] class is not a void judgment.

Such jurisdiction can be waived and must be attacked by proper

and timely motion.'*

The court distinguished State ex rel. McCarroll v. Marion Superior

Courty^ cited by Nancy to support her theory, because in McCarroll,

the trial court's authority was timely challenged.'^

96. See Ind. Code § 31-1-1 1.5-2(c) (1988).
97. Might, 547 N.E.2d at 269.

98. Id. (alterations in original) (citations omitted). See also Matter of Adoption

of H.S., 483 N.E.2d 777 (Ind, Ct. App. 1985) (court's general subject matter jurisdiction

over adoption proceeding was not vitiated by errors in petition or proceedings concerning

statutory requirements to be met before ordering adoption). Compare In re Marriage of

Truax, 522 N.E.2d 402 (Ind. Ct. App. 1988) (A trial court acting pursuant to Uniform

Reciprocal Enforcement of Support Act (URESA) has no subject matter jurisdiction to
order termination of child support due to interference with visitation. Authority of court

is specifically limited by statute to enforcement of support order and its lack of subject

matter jurisdiction over other aspects of divorce is not waivable.).

99. 515 N.E.2d 1124 (Ind. 1987).

100. Might, 547 N.E.2d at 270. In McCarroll, the husband filed an ex parte petition



616 INDIANA LAW REVIEW [Vol. 24:601

The Indiana appellate courts also heard several cases during the

survey period that challenged a trial court's subject matter jurisdiction

to act when the plaintiff's claim was arguably within the coverage of

the Medical Malpractice Act.^^^ One case, Methodist Hospital of Indiana,
Inc. V. Rioux,^^^ in particular is applicable to this Article because it

describes the respective burdens of producing evidence when the defendant
challenges the jurisdiction of the trid court to act before the case is

submitted to a medical review panel pursuant to the Act's requirements. '°^

The court of appeals determined the Act covers

any legal wrong, breach of duty, or negligent or unlawful act

or omission proximately causing injury to another based on any

act or treatment performed or furnished, or which should have

been performed or furnished by the hospital for, to, or on behalf

of a patient during the patient's medical care, treatment or

confinement.'^

In Winona Memorial Foundation v. Lomax,^^^ a 1984 case, the court

of appeals held that a claim against a hospital for injury from a trip

and fall sounded in ordinary negligence and premises liability and,

therefore, did not fall within those cases intended to be governed by

the Medical Malpractice Act.'^

In Methodist Hospital of Indiana, Inc. v. Ray^^^ the court of appeals

relied on Lomax to affirm the trial court's denial of Methodist's motion
to dismiss for lack of subject matter jurisdiction. '^^ When Ray was a
patient at Methodist, he became infected with the Legionnaire's Pneu-

monia Virus. Ray later filed a complaint against the hospital, alleging
that it negligently allowed its premises to become infested with the virus,
thereby causing his infection. The hospital's motion to dismiss was based

requesting custody of the child, not his, to be given to the maternal grandmother. The

Indiana Supreme Court agreed with the wife, the child's mother, that the trial court

lacked jurisdiction to grant the relief requested by the husband because he was not the

child's father. Because the wife timely challenged the trial court's jurisdiction, the supreme

court issued the writ of mandamus and prohibition against the trial court. McCarroll,
515 N.E.2d at 1125.

101. IND. Code § 16-9.5-1-1 to -10-5 (1988 and Supp. 1990).
102. 438 N.E.2d 315 (Ind. Ct. App. 1982) (construing Ind. Code § 16-9.5-l-l(a)(l)(g),

(h) and (i)).

103. Id. § 16-9.5-9-2 (1988).

104. Id. at 316.

105. 465 N.E.2d 731 (Ind. Ct. App. 1984).
106. Id. at 740-42 (distinguishing Rioux, 438 N.E.2d 315).

107. 551 N.E.2d 463 (Ind. Ct. App. 1990), affd, 558 N.E.2d 829 (Ind. 1990).

108. iND. R. Trial P. 12(B)(1).



1991] INDIANA CIVIL PROCEDURE 617

on its contention that, pursuant to the Act, Ray should have first
submitted his claim to a medical review panel. The trial court denied
the motion and the court of appeals affirmed because Ray's complaint,

as in Lomax, sounded in ordinary negligence for premises liability rather
than poor medical care.

The Ray opinion is particularly instructive with regard to respective
burdens when Trial Rule 12(B)(1) motions are brought, based on the
belief that the case should have been submitted to a medical review

panel. The court stated the issue as follows:

Our discussion turns upon who bears the burden on a 12(B)(1)
motion and, more fundamentally, upon a determination of leg-
islative intent with respect to the initial forum for complaints

asserted by patients against health care providers. If the as-

sumption is made that with the exception of some very limited
circumstances all such cases were intended to be included within

the Medical Malpractice Act (Act), then plaintiff must allege

facts to take the claim outside the Act or suffer dismissal for

failure to comply with the Act's jurisdictional prerequisite. On
the other hand, if we begin with the assumption that only certain
cases involving patients and providers were intended to come
within the scope of the Act, then it is up to defendant-provider

to demonstrate that a claim against the provider is within the

Act and thus requires compHance with the Act's jurisdictional

prerequisite.*^

From the court's discussion of precedent*'^ and the history of the Act,
it appears that the court concluded that the first alternative reflects the

legislative intent. Although Methodist, as the party challenging the court's

subject matter jurisdiction, had the burden to establish the lack of it,'"

this burden does not arise if the face of the complaint reveals that the

court lacked subject matter jurisdiction. Ray's complaint would have to

allege facts sounding in ordinary negligence. Ray succeeded on this point
by alleging Methodist ** negligently and carelessly caused and permitted

its premises to become infested and infected with the deadly Legionnella
Pneumonia virus bacteria . . . .""^ This shifted the burden to Methodist

to produce facts that would bring this case within the Act's scope. ^'^

109. Ray, 551 N.E.2d at 465 (citation omitted).

110. See id. at 465-66.

111. M at 467 (citing Alberts v. Mack Trucks, Inc., 540 N.E.2d 1268, 1270-71
(Ind. Ct. App. 1989)).

112. Id. at 464.

113. Id. at 467 ("Methodist would be relieved of this burden only if a lack of



618 INDIANA LAW REVIEW [Vol. 24:601

Methodist failed to carry its burden; therefore, the trial court's denial

of its motion to dismiss was proper.

In the last part of its opinion, the court further discussed the purposes

of the Act and the rationale for excluding ordinary negligence claims

from its scope. This discussion focuses particularly on the medical review

panel, and notes that its members' expertise is limited to medical mal-

practice.^^"* This provides a rational basis for the line of decisions which

refuse to hold that cases alleging ordinary negligence fall within the

scope of the Act. However, it is still difficult to predict which future

cases will fall under the Act and which cases will not. Although the

Ray court found that prior cases represent a ''consistent Hne of rea-
soning,'*'^^ it appears that the result of a particular case could depend

on how a complaint is framed. The distinction made between Rioux^^^
and Lomax was that in Rioux, the plaintiff alleged that the hospital
** negligently and carelessly failed to properly provide appropriate care

. . . to prevent [her] fall and injury,"''^ and in Lomax, the plaintiff

alleged negligent maintenance of the floor area where she fell.''* Had
Rioux worded her complaint in terms alleging ordinary negligence, the

result might have been different."^

Similarly, perhaps the Ray court would have concluded that Ray's
complaint alleged medical malpractice if he had alleged a failure to

provide a sterile environment because such a failure might be deemed

to relate to medical care. The Ray court cautioned that plaintiffs may
not circumvent the Act merely by

*

'alleging that the Hospital or doctor

is the owner of the premises upon or in which the injury was sustained. "'^°

However, in close cases, the resolution of this issue may depend on
artful drafting of the complaint. '^^

jurisdiction was apparent upon the face of the complaint. Ray's complaint, sounding as

it does in ordinary negligence, does not relieve Methodist of its burden. The only factual

matter of record other than the complaint is the affidavit stating that a panel opinion

had not been rendered. This is insufficient to divest the court of jurisdiction in this

case.").

114. Id. at 468.

115. Id. at 466 (citing Ogle v. St. John's Hickey Mem. Hosp., 473 N.E.2d 1055
(Ind. Ct. App. 1985)); Lomax, 465 N.E.2d 731; Rioux, 438 N.E.2d 315).

116. 438 N.E.2d 315.

117. Id. at 316.

118. 465 N.E.2d at 732.

119. Practitioners should note that in Rioux, the plaintiff did not respond to the

defendant's motion for summary judgment with evidence showing her complaint fell outside
the scope of the Act; whereas in Lomax, the plaintiff submitted an affidavit stating she
was unattended by hospital employees at the time of her fall. See Lomax, 465 N.E.2d

at 742.

120. 551 N.E.2d at 468 n.4.

121. See, e.g.. Harts v. Caylor-Nickel Hosp., Inc., 553 N.E.2d 874 (Ind. Ct. App.

1990).



1991] INDIANA CIVIL PROCEDURE 619

IV. Notice

In several cases during the survey period, Indiana appellate courts

considered the question of adequate notice under the Indiana Tort Claims

Act'^2 and under the Trial Rules. ^^^ The Tort Claims Act, governing
claims against the government, specifies facts concerning the claimant

and his alleged loss that must appear in the notice of claim. '^'^

In Collier v. Prater, ^'^^ the supreme court, in a case that presented

an issue of first impression, examined the question of what constitutes

adequate notice pursuant to the Tort Claims Act when the content of
the notice is challenged. ColHer sued the City of Indianapolis and two

of its police officers for injuries allegedly received when the officers
arrested him. Within 180 days after his arrest. Collier sent his notice

of claim to the city legal department, the clerk, and the chief of police.

The notice recited Collier's intent to seek damages for injuries received
during his arrest and identified the officers involved. However, the notice

did not specify the date of the arrest or the place it occurred. Collier

also did not describe the circumstances surrounding his arrest that caused

his injury. Despite these deficiencies, the supreme court, in a 3-2 decision,

held that Collier substantially complied with the requirement of the

Act. '26

The court noted that strict compliance with the content requirements

is not necessary if the notice substantially complies with those require-

ments. The court then recited the standard for determining substantial
compHance with the notice requirements of the Act:

In general, a notice that is filed within the 180-day period,

informs the municipahty of the claimant's intent to make a claim
and contains sufficient information which reasonably affords the

municipality an opportunity to promptly investigate the claim

satisfies the purpose of the statute and will be held to substantially

comply with it.'^^

The city argued that the notice must at least contain the name of the
party injured, the date and place of injury, and the nature of the claim.

122. IND. Code §§ 34-4-16.5-1 to -22 (1988 and Supp. 1990).
123. iND. R. Trial P. 4 to 4.17.

124. iND. Code § 34-4-16.5-9 (1988).
125. 544 N.E.2d 497 (Ind. 1989).

126. Id. at 499. Section 9 of the Act requires the notice to describe in a short and

plain statement the facts on which the claim is based. The statement shall include the

circumstances that brought about the loss, the extent of the loss, the time and place the

loss occurred, the names of all persons involved if known, the amount of the damages

sought, and the residence of the person making the claim at the time of the loss and at

the time of fihng the notice. Ind. Code § 34-4-16.5-9 (1988).
127. Collier, 544 N.E.2d at 499.



620 INDIANA LAW REVIEW [Vol. 24:601

The court rejected this argument as requiring too formalistic an approach,

favoring instead an inquiry that examines whether the city had sufficient

information to determine its liability and prepare a defense. ^^® The court

held the omission of the place and date of the loss was not fatal here

because the city easily could contact the two officers involved and have

them determine when and where the incident occurred. The notice was
held to contain sufficient information for the city to investigate CoUier's

claim and prepare an adequate defense.

The holding in Collier appears to be a departure from its previous

ruling in City of Indianapolis v. Satz.^^^ The court distinguished that

case because Satz merely sent a letter to the mayor of Indianapolis,

complaining about an incident involving a police officer. The letter did

not state an intent to file a claim, nor did it contain a description of

the incident. The court found that the notice given by CoUier differed

because it indicated an intent to seek damages and it stated that the

injuries arose out of an arrest involving two officers whom Collier
named. The court emphasized that the information given was sufficient
for the city to conduct an investigation and prepare a defense. However,

in Satz, the city also had sufficient information to conduct an inves-

tigation because it did just that,^^° but Satz's suit was dismissed because

he failed to describe the incident in his letter. '^^

The conclusion to be drawn from an analysis of Satz and Collier

is that if the plaintiff notifies the appropriate authorities of an intent

to file a claim, and if the plaintiff fails to describe the incident in

sufficient detail in his notice of claim but shows that the government

had enough facts to induce it to investigate the claim, the plaintiff may
be able to successfully ward off a motion to dismiss for failure to follow

the notice requirements of the Act. Pursuant to Collier, it appears that

the notice of intent to file a claim is more important than providing
the date and place of the incident. Practitioners should be aware, however,

that this may not be true of every type of loss suffered because of an
act or omission of the government. For example, an injury suffered

because of a poorly maintained sidewalk may be a situation in which
more precise information, such as location, will be required. As the
court stated, the issue of substantial compliance with the Act's notice

provisions, although a question of law, is fact sensitive. •^^

128. Id. at 500 (citation omitted).

129. 268 Ind. 581, 377 N.E.2d 623 (1978). See also Geyer v. City of Logansport,

267 Ind. 334. 370 N.E.2d 333 (1977).

130. 268 Ind. at 583, 377 N.E.2d at 625.

131. Id.

132. Collier, 544 N.E.2d at 500.



1991] INDIANA CIVIL PROCEDURE 621

Also examined during the survey period was Indiana Trial Rule

4.15(F) which saves a party from dismissal of his suit for a defect in

summons when that party's service **is reasonably calculated to inform
the person to be served that an action has been instituted against

him. . . ."'" In Storm v. Mills, ^^* the facts show that the plaintiff used
all reasonable means to inform the defendant of her suit against him.

She attempted to serve him at one address, but the summons was returned
unserved showing the defendant was not found. Service at another address

was achieved by the sheriff who left the summons and complaint with
a woman who later turned out to be the defendant's daughter. The trial
court entered a default judgment against the defendant after he failed

to appear. In response to the defendant's subsequent motion to vacate

the default judgment, the plaintiff stated in an affidavit that she had

personal knowledge that the defendant conducted business at the address

where service was made. The court of appeals held that the plaintiff's

attempted service on the defendant was reasonably calculated to inform

him of the pending action against him.'^^ Therefore, default judgment

was proper. Practitioners should note that Rule 4.15(F) focuses on the

conduct of the plaintiff to inform the defendant of an action against

him, not on whether the defendant has knowledge that suit has been

filed against him.'^^

Trial Rule 4.10, which must be read in some cases in conjunction

with Rule 4.4,'^^ provides for the manner of service upon the Secretary
of State. A court of appeals case, Morrison v. Professional Billing
Services, Inc,,^^^ construes an attempt to rely on Trial Rule 4.10. In

Morrison, the court of appeals held that the plaintiff did not use notice

reasonably calculated to inform the defendant of the action pending

against her. The defendant, Morrison, showed by affidavit that an

employee of the billing company had been to her two residences in
Illinois. Morrison also stated that she maintained a post office box in

Michigan City next to the billing company's box and that officers of

the company were aware of this. The billing company did not serve
process at either of these addresses. Instead, it attempted service by

133. IND. R. Trial P. 4.15(F).

134. 556 N.E.2d 965 (Ind. Ct. App. 1990).

135. Id. at 967-68 (citing Glennar Mercury-Lincoln, Inc. v. Riley, 167 Ind. App.

144, 338 N.E.2d 670 (1975)).

136. Storm, 556 N.E.2d at 967-68 (citing Glennar, 167 Ind. App. at 151-53, 338

N.E.2d at 675).

137. Indiana Trial Rule 4.4(B)(2) provides that a nonresident defendant whose acts

subject him to jurisdiction in Indiana under Rule 4.4 is deemed to have appointed the

Secretary of State as his agent for service of process.

138. 559 N.E.2d 366 (Ind. Ct. App. 1990).



622 INDIANA LAW REVIEW [Vol. 24:601

certified mail at an office address in Illinois which evidence later revealed

Morrison had vacated. When that letter was returned unclaimed, the
company served the Indiana Secretary of State, pursuant to Indiana
Trial Rule 4.10, and pubUshed notice in a local newspaper. From these
facts, the court of appeals held that the plaintiff failed to use the best

method available to it to give Morrison notice of the pending action

against her.'^^ This is consistent with supreme court precedent requiring

the best possible notice permitted under the circumstances. This require-

ment was aptly stated in Mullane v. Central Hanover Bank & Trust
Co.y^"^ in which the Court required notice to be more than "a mere

gesture. "•'*' Obviously, when considering this fact-sensitive issue, the
Indiana appellate courts show an unwillingness to accept perfunctory

attempts to serve process on a party to a pending action.

V. Discovery

Pretrial discovery is governed generally by Indiana Trial Rule 26

which provides for the scope of discovery^"^^ and for protective orders

if an attempt at discovery impinges on information that, for some reason,

should not be revealed. ^"^^ The courts will not, however, grant mere
**blanket*' claims of privilege. ^"^ During the survey period, the appellate

courts continued to define the scope of discovery pursuant to Indiana

Trial Rule 26 in the face of challenges based on privileges, work product,

and trade secrets. •'^^

In Indiana Department of Transportation v. Overton, ^^ the court

of appeals discussed a privilege claim based on the trial rule and federal

statutory law. Following the death of his son in a car/train collision at

a railroad crossing, Overton filed suit and then requested information

from the Indiana Department of Transporation (INDOT) pertaining to
certain railroad crossings in Indiana. INDOT resisted the request on the
basis of 23 U.S.C. § 409 which prohibits admission at trial of information

139. Id. at 368.

140. 339 U.S. 306 (1950).

141. /rf. at 315 ("The means employed must be such as one desirous of actually

informing the absentee might reasonably adopt to accomplish it.").

142. IND. R. Trial P. 26(B).

143. Id. at 26(C).

144. Peterson v. U.S. Reduction Co., 547 N.E.2d 860 (Ind. Ct. App. 1989).
145. One case concerning the scope of discovery is DeMoss Rexall Drugs v. Dobson,

540 N.E.2d 655 (Ind. Ct. App. 1989), which rejected an insurer's claim that statements

given to an insurer by an insured should not be discoverable. DeMoss was discussed in
great detail in the last survey issue, see Funk, Survey of Recent Developments in the

Indiana Rules of Trial Procedure in Civil Matters, 23 Ind. L. Rev. 241, 246-51 (1990),
and was criticized for the harsh results it poses for insurance carriers.

146. 555 N.E.2d 510 (Ind. Ct. App. 1990).



1991] INDIANA CIVIL PROCEDURE 623

compiled for the purpose of evaluating safety aspects of potential accident

sites, hazardous roadway conditions, or railroad crossings. In addition

to prohibiting its admission at trial, the statute states that such infor-

mation may not be * 'considered for other purposes in any action for
damages . . . .''*'*^ INDOT construed this language to mean discovery of
such information is also prohibited. The court disagreed and held that
such information was discoverable.''^^ The court noted that the phrase
*

'considered for other uses*' implies use by a finder of fact and might

include use for impeachment purposes.''*^ The court concluded that pur-

suant to Trial Rule 26, as long as the sought-after information seemed

reasonably calculated to lead to admissible evidence, it was discoverable. '^°

The issue of discoverability of alleged trade secrets does not appear

to havh arisen in Indiana until the case of Vibromatic Co. v. Expert

Automation Systems Corp.^^^ Vibromatic sued a corporation formed by

some of its former employees for using trade secrets obtained while at
Vibromatic to solicit sales from Vibromatic' s customers. To test the
validity of Vibromatic's claim that its trade secrets were used to compete

for sales, the defendants sought to have outside experts examine the

processes that Vibromatic alleged to be trade secrets. Because the pro-

posed experts were also competitors, Vibromatic sought a protective

order under Trial Rule 26(C). The court of appeals noted the dilemma

of a trial court facing this situation:

An attempt to protect a trade secret would be futile if meritorious
litigation would result in the disclosure of the trade secret. . . .

The trial court, in exercising its discretion, faces an arduous

task. While preserving the confidentiality of the trade secret, the

trial court must strike a balance which ensures that a defendant

is provided sufficient information to present a defense yet permits

the trier of fact sufficient information to resolve the dispute on

the merits. •"

The court then held that the trial court abused its discretion in denying

the request for protective order without conducting a complete evidentiary

hearing on the matter.'" Further proceedings should reveal what Vi-

bromatic specifically would have to prove to receive a protective order.

147. 23 U.S.C. § 409 (1987).

148. Overton, 555 N.E.2d at 512 (citing Martinolich v. Southern Pacific Transp.

Co., 532 So. 2d 435 (La. App. 1988)).

149. Id.

150. Id.

151. 540 N.E.2d 659 (Ind. Ct. App. 1989).

152. Id. at 661-62.

153. Id. at 662.



624 INDIANA LAW REVIEW [Vol. 24:601

In Pioneer Hi-Bred Internationaly Inc. v. Holden *s Foundation Seeds,

Inc.y^^^ a case construing Federal Rule 26(c), the Federal District Court

for the Northern District of Indiana noted that courts generally resist

ordering disclosure of trade secrets unless a clear showing of immediate

need is shownJ" They generally require the party seeking production

to show the trade secrets are relevant and that there is a specific need

for them to prepare for trial. '^^ The burden of proof is on the party

seeking production. *^^ However, this burden does not arise unless the

party seeking the protective order shows: (1) that what it seeks to protect

is a trade secret, and (2) its disclosure might be harmful. ^^*

VI. Pleading and Practice Under Indiana's
Comparative Fault Act

The Indiana Supreme Court construed Indiana's Comparative Fault

Act in two companion cases decided during the survey period. These

cases concern the procedure for pleading and proving the nonparty

defense and what happens when certain defendants are dismissed before
the end of trial. The legislature enacted the Comparative Fault Act'^'

in 1983 to allow for allocation of fault among more than one defendant
and other potentially liable parties and the plaintiff, if contributorily

negligent. Damages are assessed according to a party's percentage of
fault. ^^ The nonparty defense, ^^' added by the legislature in 1984, enables
a defendant to assert as a defense that the claimant's injuries may have
been caused in whole or in part by an unnamed party. The burden of
pleading and proving the nonparty defense is on the defendant. '^^

In Cornell Harbison Excavating, Inc. v. May,^^^ the supreme court

discussed what happens if the defendant fails, or is unable, to specifically

name the nonparty. The Mays sued Cornell Harbison after their au-
tomobile swerved into a ditch and hit the drainage and sewer pipe that

was stored there. The Mays swerved into the ditch to avoid hitting a
dog, and Cornell Harbison tried to name the * 'unknown owner of the

154. 105 F.R.D. 76 (N.D. Ind. 1985).

155. Id. at 81-82 (citing 4 Moore's Federal Practice 26.60(4), pts. 25-212).

156. Id. at 82 (citations omitted).

157. Id.

158. Centurion Indus., Inc. v. Warren Steurer and Associates, 665 F.2d 323, 325
(10th Cir. 1981).

159. Ind. Code §§ 34-4-33-1 to -13 (1988 and Supp. 1990).
160. Id. §§ 34-4-33-3 to -5 (1988).

161. Id. § 34-4-33-10.

162. Id.

163. 546 N.E.2d 1186 (Ind. 1989).



1991] INDIANA CIVIL PROCEDURE 625

dog*' as a nonparty. The trial court granted the Mays' motion to strike
the defense, and the appellate courts affirmed.'^ The supreme court
rejected the defendant's contention that the statute requires only a general

identification of the nonparty sufficient to distinguish it from other

persons. '^^ Instead, the court held that the plain meaning of the statute

requires more than a mere generic description of the nonparty when it
states that the verdict must disclose **the name of the nonparty."'^

This holding is consistent with the rest of the Act because, as the

supreme court noted, the burden of pleading and proving the fault of

the nonparty is on the defendant. ^^^ However, in cases such as the present

one, in which it is practically impossible to determine the identity of a

party who appears to be liable to the plaintiff, and that unnamed party's
fault might be significantly greater than that of the named defendant,
some inequities will result. However, the statute, as interpreted by the
court, reflects a policy that, as between the plaintiff and the defendant

who is partly at fault, the defendant should bear the burden of these
inequities. The court also held that a Trial Rule 12(F) motion to strike
is the proper mechanism to challenge the defendant's nonparty defense

that fails to identify the nonparty.'^

In a more controversial case, Bowles v. Tatom,^^^ the supreme court
held that parties originally joined as defendants, but dismissed at the

close of the plaintiff's case, cannot become nonparties for purposes of
allocating a percentage of fault to them. Bowles and Tatom were involved
in an automobile accident after Bowles failed to stop at a stop sign

that she alleged was obscured by foHage. Under these circumstances,

Bowles's insurer refused to pay Tatom's claim and Tatom then sued
Bowles, the city of Bedford, and its mayor. The answers of the city

and the mayor named the adjacent property owners as nonparties, and
Tatom then added them as defendants. After viewing photographs of
the scene and other evidence presented by Tatom in his case in chief,
the trial court granted motions to dismiss the property owners, the city,

and the mayor. Bowles did not object to the photographs Tatom used,
which apparently showed the stop sign unobstructed, nor did she oppose

the other defendants' motions to dismiss. Instead, she presented pho-

tographs showing the stop sign obscured by foliage. At the close of her

164. Cornell Harbison Excavating, Inc. v. May, 530 N.E.2d 771 (Ind. Ct. App.

1988), affd, 546 N.E.2d 1186 (Ind. 1989).

165. Cornell Harbison, 546 N.E.2d at 1187.

166. Id. (citing Ind. Code § 34-4-33-6 (1988)).
167. Id. (citing Cornell Harbison, 530 N.E.2d at 773).

168. Id.

169. 546 N.E.2d 1188 (Ind. 1989) vacating in part, Bowles v. Tatom, 523 N.E.2d

458 (Ind. Ct. App. 1988).



626 INDIANA LAW REVIEW [Vol. 24:601

case in chief, the trial court found Bowles one hundred percent at fault,

and allocated damages accordingly. The court of appeals held that the

trial court should have considered the percentage of fault of the other

defendants even though they were dismissed. ^^°

The supreme court vacated this portion of the court of appeals*

decision, and affirmed the trial court's allocation of one hundred percent

fault to Bowles. The court reviewed the applicable portions of the statute,

particularly the definition of **nonparty'' and the procedure for pleading

and proving the nonparty defense which places the burden of proof on

the defendant. The court noted that the city, the mayor, and the property

owners could not be named as nonparties because the definition only
includes those who have not been joined in the action as defendants. '^*

The court also stated that allocating fault to the city, the mayor, and

the property owners as nonparties would contradict the statute's intent

that the burden of proving fault of nonparties be on the defendant. '^^

These two conclusions posed a dilemma that the court said was resolved

by considering the 1984 amendment which substituted the phrase **a
party or nonparties" for **persons who are not parties to the action"
in Indiana Code section 34-4-33-5(a)(l) and (b)(1). '^^

One commentator suggested that the court's decision in Bowles was
incorrect.'^'* The commentator suggested that a defendant in Bowles's

position has no statutory basis, although unable to name the other
defendants as nonparties, to object to their dismissal because the plain-

tiff's evidence was insufficient to sustain his case against them. The

result of the court's opinion was to shift the burden of producing evidence

against these dismissed defendants to the remaining defendant, which is

contrary to the statute because it placed such a burden on the plaintiff

as against named defendants.
The commentator correctly noted that the court's holding appears

to shift the burden of proof to the remaining defendant to prove the

fault of other defendants he fears might otherwise be dismissed due to

the plaintiff's lack of proof. On the other hand, although the court
strictly construed the Act, its opinion seems to be correct. The nonparty

is specifically defined as one who may be liable to the plaintiff but was
not joined in the action as a defendant. This excludes those joined but

later dismissed. Therefore, no fault can be allocated to these parties

under Indiana Code section 34-4-33-5 because that section only allows
allocation to the plaintiff, the defendant, and the nonparties.

170. Bowles, 523 N.E.2d at 461.

171. Bowles, 546 N.E.2d at 1190.

172. Id. (citing Ind. R. Trial P. 8(C) and Ind. Small Claims R. 4(A)).

173. Id.

174. Harvey, Rules, Rulings for the Trial Lawyer, 13 Res Gestae 530, 532 (1990).



1991] INDIANA CIVIL PROCEDURE 627

If the stop sign was, indeed, obscured, Bowles may not have been
negligent at all, in which case it was wrong to allocate any percentage
of fault to her. Of course, fault cannot be allocated to Tatom if he
was not at fault either. However, the statute requires the allocation

percentages to total one hundred percent unless the factfinder concludes

a nonparty is at fault. Because there were no nonparties here, the trial

court was forced to allocate fault to either Tatom, Bowles, or both.

This case exposes a defect in the statute that must be corrected so that

a nonparty includes defendants joined but later dismissed. That way,

the initial burden would remain on the plaintiff who should recover
nothing if he cannot present sufficient facts to prove his case. Then, if

the remaining defendant wanted to prove that the dismissed defendants

were at fault, she could do so and have fault allocated to them as

nonparties.

In the meantime, practitioners should follow the advice of the su-

preme court. In the present case, Bowles should have objected to Tatom's
photographs on the basis that they did not accurately represent the

accident scene as it existed the day of the accident. Further, Bowles

should have opposed the motions to dismiss or asked the court to

withhold its decision on the motion until the end of her case in chief.

VII. Relief From Judgment

Under Trial Rule 60, a party may obtain relief from judgment in
the case of clerical mistake, mistake by a party, excusable neglect, newly

discovered evidence, or other reasons listed in the rule.'^^ There is a

one-year time limit for obtaining relief from judgment in cases in which

parties request relief for reasons listed in Trial Rule 60(B)(1) through

(4) and a limit of reasonable time in which parties request relief for

reasons listed in paragraphs (5) through (8). Relief pursuant to a Rule

60(B)(8) motion will be granted only if the movant presents the court

with extraordinary circumstances.'"'^

The Indiana appellate courts were faced with the question of what

is a '^reasonable time"'^^ after judgment for filing a Trial Rule 60(B)

motion for relief from judgment in Fairrow v. Fairrow.^^^ On February
7, 1975, Joe and Mary Fairrow obtained a divorce decree that determined

175. IND. R. Trial P. 50(A), (B).

176. Shotwell v. Cliff Hagan's Ribeye Franchise, Inc., 553 N.E.2d 204, 207 (Ind.

Ct. App. 1990), transfer pending.

177. See Ind. R. Trial P. 60(B) ("The motion shall be filed within a reasonable

time for reasons (5), (6), (7), and (8), and not more than one year after the judgment,

order or proceeding was entered or taken for reasons (1), (2), (3), and (4)."),

178. 543 N.E.2d 649 (Ind. Ct. App. 1989), vacated, 559 N.E.2d 597 (Ind. 1990).



628 INDIANA LAW REVIEW [Vol. 24:601

that Joseph D. Fairrow, born June 7, 1974, was a child of the marriage.

Paternity of Joseph was not disputed at this time and the decree ordered

Joe to pay child support. By the time Joseph was about twelve years

old, Joe discovered that it was impossible that he could be Joseph's

father because Joseph had the trait for sickle cell anemia and neither

Joe nor Mary carried this trait. Because she was tested sometime between
1974 and 1976, Mary knew she did not have the sickle cell trait. However,

Joe was not tested until 1986, when Joseph experienced symptoms of

sickle cell anemia. Shortly after this discovery, but eleven years after

the date of the decree, Joe filed a Trial Rule 60(B)(8) motion to terminate

support. The trial court denied relief. After two additional motions and

still no relief, Joe appealed the trial court's decision.

Although Joe did not file a motion to correct errors after the trial

court's first alleged error, the court of appeals did not rely on waiver

of the right to appeal to deny Joe relief. ^^^ Instead, the court denied

relief on the basis that eleven years after judgment was not a ** reasonable

time," as required by the Rule, in which to later challenge that judg-

ment. '^° The court held that in order for the eleven years to be considered

a reasonable time, Joe would have to present facts or circumstances

other than that he is not Joseph's biological father.'^' The reason for

requiring a showing of additional circumstances, the court found, is that

by **conduct or circumstances, one who is not a biological father of a
child may have become obligated to a continuing duty of support for
that child. "'^2 The conduct or circumstances applicable in this case were

that Joe paid support for eleven years as if Joseph had been his natural

son. Judge Buchanan, dissenting, noted that a substantial change in

circumstances did occur, that change being Joe's later awareness, through

medical tests, that he was not Joseph's biological father.^"

On transfer, the Indiana Supreme Court vacated the court of ap-
peals 's opinion. '^"^ Also holding that Joe did not waive his right to an

appeal,**^ the court proceeded to the merits of the 60(B) motion. The
court held that eleven years was a reasonable time after which to file

179. Id. at 651 n.2 (holding that the pre-appeal order had determined substantive

issue to be preserved).

180. Id. at 653.

181. Id. ^i 652.

182. Id. at 653 (citing R.D.S. v. S.L.S., 402 N.E.2d 30 (Ind. Ct. App. 1980)).
183. Id. at 653-54 (Buchanan, J., dissenting) (citing Ind. Code § 31-1-11. 5-17(a)

(1988), which allows a child support order to be modified upon a showing of changed
circumstances).

184. Fairrow, 559 N.E.2d 597 (Ind. 1990).
185. Id. at 598.



1991] INDIANA CIVIL PROCEDURE 629

a Trial Rule 60(B)(8) motion, noting that Joe had no reason to question

the divorce court's paternity determination until his doctor suggested,

eleven years later, that he undergo testing for the sickle cell trait. '*^

Although granting Joe relief, the court warned against the potential

abuse of the courts in future divorce proceedings:

Although we grant Joe relief, we stress that the gene testing
results which gave rise to the prima facie case for relief in this

situation became available independently of court action. In

granting relief to a party who learned of his non-parenthood
through the course of ordinary medical care, we do not intend
to create a new tactical nuclear weapon for divorce combatants.
One who comes in to court to challenge a support order on the
basis on non-paternity without externally obtained clear medical
proof should be rejected as outside the equitable discretion of

the trial court.

In sum, we strongly discourage relitigation of support issues
through T.R. 60(B)(8) motions in the absence of highly unusual

evidence akin to the evidence presented in this case.**^

The question inevitably arising from the circumstances of this case
is whether putative fathers, during initial divorce proceedings, will raise

an excess of unmerited claims that they did not father the children of

their marriages. Certainly, if left alone, the court of appeals decision

would have the potential to cause an increase in such claims. Faced

with uncontroverted evidence that Joe was not Joseph's biological father,

the court nevertheless held against him because of the lapse of time

between the original decree and the filing of his first motion to terminate

support. This would have had the effect of inducing husbands to question

paternity at the original divorce proceedings to assure that they would

not be precluded from raising such an issue later. The result also could
have led a few unscrupulous husbands and their attorneys to raise

unmerited issues concerning paternity at the outset of such proceedings,

under the guise of valid disputes, in order to harass their opponents/

spouses. The supreme court has at least provided those with vaUd

paternity disputes an opportunity to come forward with newly discovered
medical evidence that establishes nonpaternity years after the decree is

entered. However, the warning quoted above reveals the court's intention

to have its holding applied to a limited number of cases. Certainly,
attorneys whose clients have valid concerns of whether the children of

marriages are the fathers' biological children would be wise to have such

186. Id. at 599.

187. Id. at 600.



630 INDIANA LAW REVIEW [Vol. 24:601

concerns resolved early in the proceedings to assure themselves of pre-

serving this issue.

VIII. Conclusion

Although every written opinion involves an issue concerning pro-

cedural law, this Article highlights the more significant issues discussed
during the survey issue. These issues appear in construction of the trial

rules as well as procedural sections of various Indiana statutes. Prac-

titioners should keep in mind that the rules and statutes are constantly
undergoing revisions that supercede case law. However, they may also
provide new opportunities for trial lawyers.