Opinion
23A-CT-915
10-05-2023
Kathleen Hochberg, Appellant-Plaintiff, v. Castongia's Inc. and Allen Deno, Appellees-Defendants.
ATTORNEY FOR APPELLANT A. Leon Sarkisian Sarkisian Law Offices Merrillville, Indiana ATTORNEYS FOR APPELLEES John A. Masters Zachary C. Melloy Langhenry Gillen Lundquist & Johnson, LLC Munster, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Porter Superior Court The Honorable Michael A. Fish, Judge Trial Court Cause No. 64D01-2002-CT-1517
ATTORNEY FOR APPELLANT A. Leon Sarkisian Sarkisian Law Offices Merrillville, Indiana
ATTORNEYS FOR APPELLEES John A. Masters Zachary C. Melloy Langhenry Gillen Lundquist & Johnson, LLC Munster, Indiana
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[¶1] Appellant-Plaintiff, Kathleen Hochberg (Hochberg), appeals the trial court's summary judgment, which concluded that Hochberg failed to establish a genuine issue of material fact that she was under a legal disability at the time her cause of action accrued against Appellees-Defendants, Castongia's, Inc. (Castongia's) and Allen Deno (Deno) (collectively, Appellees).
[¶2] We affirm.
ISSUE
[¶3] Hochberg presents this court with one issue on appeal, which we restate as follows: Whether a genuine issue of material fact exists establishing that Hochberg was under a legal disability, pursuant to Indiana Code section 34-116-1, at the time her cause of action accrued.
FACTS AND PROCEDURAL HISTORY
[¶4] This cause stems from a rear-end motor vehicle collision on February 14, 2018. Hochberg complained of personal injuries after a vehicle, operated by Deno and owned by Castongia's, struck her vehicle's rear bumper while stopped at a stop light. Nine minutes after receiving the dispatch, EMTs Roger Kleist (EMT Kleist) and Nicholas Ayres (EMT Ayres) arrived on the scene. EMT Kleist observed "very minor damage to the rear bumper of [Hochberg's] vehicle." (Appellees' App. Vol. II, p. 110). Hochberg complained of pain to her neck and back which, upon being questioned by EMT Kleist, was determined to be of the lowest severity. Hochberg did not report a head injury, did not complain of dizziness, and communicated normally. The EMTs observed that Hochberg did not speak in a confused manner, did not slur her words, and was able to answer questions and communicate appropriately. After examination, EMT Kleist did not find any bruising, bumps, scratches, or bleeding on Hochberg's scalp and head. The EMTs conducted two Glasgow Coma Scale (GCS) testson Hochberg, about twenty minutes apart. Hochberg obtained a maximum score on each test, indicating that her consciousness level was in the normal range. EMT Kleist also found Hochberg's pupils to be of equal size and reactive to light, which was indicative of a lack of head trauma or brain injury. After signing the forms consenting to treatment and transport, Hochberg was transported to the emergency room non-emergently, without emergency lights or sirens and while travelling at the legal speed limit.
The Glasgow Coma Scale tests are performed to test an individual's "cognitive ability." (Appellees' App. Vol. II, p. 158).
[¶5] Emergency room physician Dr. Irene Dmitruk (Dr. Dmitruk) examined Hochberg upon arrival at the hospital at 9:50 a.m. Hochberg clearly communicated the circumstances of the accident to Dr. Dmitruk. She also advised Dr. Dmitruk that she hit her knee on something and complained of pain to her left knee, upper back, neck, and lower back. Although questioned by Dr. Dmitruk, Hochberg denied having hit her head or having lost consciousness. During her examination of Hochberg, Dr. Dmitruk specifically checked for signs of head trauma, such as headaches, dizziness, or vomiting, which were absent. Dr. Dmitruk concluded that Hochberg was "alert and oriented to person, place, and time . . . she is not disoriented." (Appellees' App. Vol. II, pp. 66-67). Dr. Dmitruk determined that Hochberg had a normal mood and affect, normal speech, normal behavior, normal judgment and thought content, and normal cognition and memory. Emergency Room nurse Jason Zona (Nurse Zona) performed another GSC test, on which Hochberg attained the highest score, and he found her to be normal and oriented. Hochberg was discharged at 11:37 a.m., after an emergency room visit of less than two hours.
[¶6] On February 17, 2020, Hochberg filed her Complaint against Appellees, sounding in negligence. On November 17, 2022, following the depositions of Hochberg, the EMTs, and Dr. Dmitruk, Appellees filed a motion for summary judgment, asserting that Hochberg's "Complaint was filed after the statute of limitations" and alleging that "Hochberg was not of unsound mind when her cause of action accrued." (Appellant's App. Vol. II, pp. 33, 35-36). In support of their motion, Appellees designated medical evidence and testimony establishing that Hochberg was not under a disability nor was of unsound mind at the time of the accident. On December 15, 2022, Hochberg filed her response to Appellees' motion for summary judgment, as well as her own crossmotion for summary judgment on the partial issue of Appellees' statute of limitations defense. Among her designated evidence, Hochberg included her affidavit, which provided, in its entirety (with exclusion of the preamble), that
1. The Affiant is over the age of eighteen (18) and is now competent to testify in this matter.
2. On February 14, 2018, the Affiant was involved in a motor vehicle collision.
3. For at least several days following the motor vehicle collision, [Hochberg] felt disoriented, dazed and confused and was unable to find words or put sentences together.
4. As a result of feeling disoriented, dazed and confused for at least several days after the motor vehicle collision on February 14, 2018, and being unable to find words or put sentences together, in the several days following the motor vehicle collision the Affiant did not feel capable of managing her ordinary affairs, including her legal affairs.
5. Thereafter, on or about May 17, 2018, the Affiant was admitted to the hospital because she was again feeling disoriented, dazed and confused.(Appellant's App. Vol. II, p. 66). In addition, Hochberg presented her deposition in which she clarified that by "ordinary affairs" or "legal affairs," she meant she had trouble finding words and could not drive a car. (Appellees' Vol II, p. 46). She also opined that she would not have been capable of testifying at a deposition or of buying a car in the days following her car accident.
[¶7] On March 2, 2023, the trial court conducted a hearing on the cross-motions for summary judgment. On March 30, 2023, the trial court summarily granted summary judgment to Appellees.
[¶8] Hochberg now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[¶9] Hochberg challenges the trial court's grant of summary judgment to Appellees. "The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which can be determined as a matter of law." Lamb v. Mid Ind. Serv. Co., 19 N.E.3d 792, 793 (Ind.Ct.App. 2014). "The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law." Mint Mgmt., LLC v. City of Richmond, 69 N.E.3d 561, 564 (Ind.Ct.App. 2017); Ind. Trial Rule 56(C). Summary judgment is a "high bar" for the moving party to clear in Indiana. Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014). If "the moving party satisfies this burden through evidence designated to the trial court, the non-moving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial." Biedron v. Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind.Ct.App. 2018) (quoting Broadbent v. Fifth Third Bank, 59 N.E.3d 305, 311 (Ind.Ct.App. 2016), trans. denied), trans. denied. "A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (citation and quotation marks omitted).
[¶10] We review a court's ruling on a summary judgment motion de novo, applying the same standard as the trial court. Hughley, 15 N.E.3d at 1003. "In conducting our review, we consider only those matters that were designated to the trial court during the summary judgment stage." Lowrey v. SCI Funeral Servs., Inc., 163 N.E.3d 857, 860 (Ind.Ct.App. 2021), trans. denied. "In determining whether issues of material fact exist, we neither reweigh evidence nor judge witness credibility [but] accept as true those facts established by the designated evidence favoring the non-moving party." Id. (citations omitted). "Any doubts as to any facts or inferences to be drawn from those facts must be resolved in favor of the nonmoving party." Denson v. Est. of Dillard, 116 N.E.3d 535, 539 (Ind.Ct.App. 2018). However, "[m]ere speculation is insufficient to create a genuine issue of material fact to defeat summary judgment." Biedron, 106 N.E.3d at 1089. In the summary judgment context, we are not bound by the trial court's findings of fact and conclusions thereon, but they aid our review by providing the reasons for the trial court's decision. Howard Cnty. Sheriff's Dep't &Howard Cnty. 911 Commc'ns v. Duke, 172 N.E.3d 1265, 1270 (Ind.Ct.App. 2021), trans. denied. The party that lost in the trial court bears the burden of persuading us that the trial court erred. Biedron, 106 N.E.3d at 1089.
[¶11] "The statute of limitations defense is particularly suitable as a basis for summary judgment." Myers v. Maxson, 51 N.E.3d 1267, 1276 (Ind.Ct.App. 2016), trans. denied. "The general purpose of a statute of limitation is to encourage the prompt presentation of claims." Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind.Ct.App. 2006). "They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost." Id. A plaintiff is not required to plead matters to avoid a statute of limitations defense. Biedron, 106 N.E.3d at 1089. However, when the opposing party moves for summary judgment based on the statute of limitations as an affirmative defense and makes a prima facie showing that the action was commenced after the statutory period, "the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense." Id. (quoting Myers, 51 N.E.3d at 1276).
[¶12] Here, Appellees have established-and Hochberg does not dispute-that Hochberg filed her Complaint outside the two-year statute of limitations. See I.C. § 34-11-2-4(a)(1) (the applicable statute of limitations for a personal injury action is two years after the cause of action accrues). Therefore, the burden shifts to Hochberg to establish a genuine issue of material fact that an exception to the statutory term of limitations is applicable. In support of her contention that she timely filed her Complaint, Hochberg relies on Indiana Code section 34-11-6-1, which provides that a person "who is under legal disabilities when the cause of action accrues may bring an action within two (2) years after the disability is removed." This statute does not toll the basic statute of limitations; rather, the basic statute continues to run, and Indiana Code section 34-11-6-1 "in effect, simply renders its running inapplicable by providing a special limitation, or grace period, of two years after the disability is removed." Collins v. Dunifon, 323 N.E.2d 264, 268 (Ind.Ct.App. 1975). "Under legal disabilities" is statutorily defined as including "persons less than eighteen (18) years of age, mentally incompetent, or out of the United States." I.C. § 1-1-4-5(24). "Mentally incompetent," in turn, means "of unsound mind." I.C. § 1-1-4-5(12).
[¶13] To establish that she was of 'unsound mind' at the time of the accident and "should be allowed the benefit of a grace period of at least one day," Hochberg relies on Collins, 323 N.E.2d at 269, which concluded that to be considered of 'unsound mind,' the relevant proof "is whether the person claiming the benefit of the extension statute is incapable of either understanding the rights that he would otherwise be bound to know, or of managing his affairs, with respect to the institution and maintenance of a claim for relief." (Appellant's Br. p. 7). Applying Collins' conclusion to her cause, Hochberg contends that "immediately after the collision, and for several days thereafter," Hochberg "did not feel capable of managing her ordinary affairs, including her legal affairs," because she felt "disoriented, dazed, and confused, and was unable to find words or put sentences together; [] [s]he would not have been able to listen to questions, formulate answers, and speak and answer questions verbally as she did in her deposition, and she did not feel she was capable of entering into any legal contracts or documents, like a contract for the purchase of a car or the purchase of a home." (Appellant's Br. p. 11).
[¶14] However, Collins-as referred to and relied upon by Hochberg-applies a version and interpretation of the statute that was repealed in 1990 by P.L. 11990, Sec. 334. See Fager v. Hundt, 610 N.E.2d 246, 250 n. 2 (Ind. 1993) (citing the previous statute, Indiana Code section 34-1-67-1). Specifically, "of unsound mind" was previously defined to include "idiots, noncompotes (non compos mentis), lunatics and distracted persons." Id. The phrase "distracted person" was construed to mean "a person who by reason of his or her mental state is incapable of managing or procuring the management of his or her ordinary affairs." Id. (quoting Duwe v. Rodgers, 438 N.E.2d 759, 761 (Ind.Ct.App. 1982)). A statutory amendment changing a prior statute indicates a legislative intent that the meaning of the prior statute has changed, unless it clearly appears-which was not the case here-that the amendment was passed to clarify the legislature's original intent. Sun Life Assur. Co. of Canada v. Ind. Dep't of Ins., 868 N.E.2d 50, 56 (Ind.Ct.App. 2007), trans. denied.
[¶15] Since the amendment of the statute and during more recent years, in cases involving injuries more severe than those sustained by Hochberg, this court has found that those injuries did not render the plaintiff "mentally incompetent" and "of unsound mind." See I.C. §§ 1-1-4-5(24); -5(12). In Indiana Department of Highways v. Hughes, 575 N.E.2d 676, 677 (Ind. Ct App. 1991), trans. denied, Hughes was injured when the car in which she was a passenger struck a bridge abutment. Due to this accident, she suffered a "badly broken left lower leg and ankle, as well as a superficial scalp laceration." Id. Hughes' scalp wound was treated in the emergency room, and she was hospitalized for two months for the repair of her fractures and for physical therapy. Id. We held that Hughes was not incompetent just because she had a badly broken leg and ankle that required a two-month hospital stay. Id. at 678. Rather, the evidence showed that Hughes was mentally alert at virtually all times from the day of the accident forward. Id. She paid her bills, signed consent forms, received visitors, discussed the accident, and contemplated legal action-all within a few weeks of the accident. Id. We concluded that while she was obviously physically impaired and could not independently perform all acts regarding her personal care and property, there simply was no evidence that it was unreasonable for her to comply with statutory notice provisions. Id. at 679. See also Overton v. Grillo, 896 N.E.2d 499, 504 (Ind. 2008) (finding that plaintiff's severe depression, anxiety, sleep deprivation, and chemotherapy and radiation treatments were insufficient as a matter of law to establish that she was "incapacitated" for purposes of tolling the Medical Malpractice Act), reh'g denied.
[¶16] In contrast, this Court found a genuine issue of material fact regarding whether the plaintiff was mentally incompetent in Hayes v. Westminster Village North, Inc., 953 N.E.2d 114 (Ind.Ct.App. 2011), reh'g denied, trans. denied. In Hayes, Dorothy Rodarmel (Rodarmel) lived at Westminster's nursing home from August 22, 2001, until December 3, 2007. Id. at 116. On December 3, 2007, Rodarmel was transferred from the nursing home to a hospital for emergency treatment, where she remained until her death eleven days later. Id. Hayes, as administrator of Rodarmel's estate, filed a proposed medical malpractice complaint with the Indiana Department of Insurance on December 14, 2009. Id. Upon learning from the Department of Insurance that Westminster was not a qualified healthcare provider under the Medical Malpractice Act because it failed to file proof of financial responsibility and pay a required surcharge, Hayes filed a negligence and wrongful-death complaint against Westminster on December 18, 2009. Id. Westminster filed a motion for summary judgment alleging that Hayes filed the complaint outside the two-year statute of limitations, and the trial court granted summary judgment in favor of Westminster. Id. On appeal, we explained that Hayes was obligated to file his complaint within two years of the date of Westminster's alleged harm to Rodarmel and that December 3, 2007, was the last time Rodarmel was in Westminster's care. Id. at 116-17. In an attempt to evade the expiration of the statute of limitations, Hayes argued that Indiana Code section 34-11-6-1 operated to extend the statute of limitations because Rodarmel was mentally incompetent when she was allegedly harmed by Westminster's negligence and transferred to the hospital for medical treatment. Id. at 117. Specifically, Hayes designated medical records showing the following: (1) Rodarmel was diagnosed with senile dementia; (2) when she arrived at the hospital on December 3, Rodarmel was unable to provide her medical history or respond to commands; (3) Rodarmel exhibited a "[d]ecreased level of consciousness"; (4) a doctor noted that on December 4, Rodarmel was "not responsive" and could not provide any medical history; and (5) Rodarmel was "aphasic," which is defined as the partial or total loss of the ability to articulate ideas in any form, resulting from brain damage. Id. Westminster, however, highlighted other entries in Rodarmel's medical records that indicated she was sufficiently conscious to respond to medical providers' questions and that she had never been adjudicated mentally incompetent in a legal proceeding. Id. We found that the "evidence [wa]s sufficient to establish a material dispute of fact as to whether Rodarmel was mentally incompetent at the time that she was allegedly harmed by Westminster's negligence and was transferred from Westminster to the hospital for emergency treatment." Id.
[¶17] More recently-and instructive for the case at hand-we decided Whitlock v. Steel Dynamics, 35 N.E.3d 265 (Ind.Ct.App. 2016), trans. denied, where Whitlock contended he was under a legal disability when the cause of action accrued. Whitlock was injured when a construction crane struck him in the face, causing lacerations to his forehead and left eyelid. Id. at 266. When he arrived in the emergency room, Whitlock was "alert and oriented" and he self-reported no vomiting or loss of consciousness. Id. He was able to use the correct words with no slurring and had no problems communicating with the medical doctors. Id. A head CT revealed no bleeding in the brain and no fractures. Id. Whitlock was released from the hospital that same day. Id. Eight days after the expiration of the applicable statute of limitations, Whitlock filed a personal injury complaint, claiming that his injuries "disabled him for a substantial period" following the incident. Id. Following Steel Dynamics' motion for summary judgment, Whitlock designated the affidavits of his wife and mother-in-law. Id. As for Whitlock's physical limitations, the affidavits averred that: Whitlock required help to move around, he slept a lot, he had headaches and pain, he got dizzy when standing up, and he had difficulty talking when he first woke up. Id. at 272. We found that these allegations did not create a genuine issue of material fact that Whitlock was mentally incompetent. Id. The affidavits also listed specific instances of mental problems, alleging that Whitlock was forgetful at times, he dozed off, and he was disoriented when he woke up. Id. at 272-73. Again, we concluded that the nature of these allegations were not sufficient to create a genuine issue of material fact that Whitlock was mentally incompetent. Id. at 273. Finally, we found that the affidavits gave general opinions without designating objective bases for these opinions, and instead alleged that Whitlock was disoriented and incoherent, without giving specific instances of how he was disoriented and incoherent, maintained that he did not understand what was going on around him, again without giving specific details, and indicated that he was not "all there." Id. Because these opinions addressed the central issue of Whitlock's mental competence, we stated that greater detail was required, and in absence thereof, we held that no genuine issue of material fact was established that Whitlock was mentally incompetent when the cause of action accrued. Id.
[¶18] Consistent with the current case law on mental competency in this area and for the reasons set forth below, we find that the designated evidence in this case does not rise to the level necessary to avoid summary judgment on the issue of whether Hochberg was mentally incompetent or of unsound mind on February 14, 2018, when the cause of action accrued. With respect to her mental incompetency, Hochberg averred in her affidavit, in very general terms, that she "felt disoriented, dazed and confused and was unable to find words or put sentences together." (Appellant's App. Vol. II, p. 66). Hochberg clarified this general sense of confusion through her deposition by stating that "in the several days after this incident [] she wouldn't have felt comfortable entering into any legal documents, like the purchase of a car, or the purchase of a home, or anything like that[.]" (Appellant's App. Vol. II, p. 69). Similarly, Hochberg added that, "in the several days and the weeks after this incident" she would not "have been able to listen to the question, formulate an answer, and speak and answer those questions verbally" during a deposition. (Appellant's App. Vol. II, p. 70).
[¶19] Affidavits used for summary judgment purposes are evidential in nature. Lee v. Schroeder, 529 N.E.2d 349, 352 (Ind.Ct.App. 1988), trans. denied. The extent of the requisite detail required in an affidavit varies from case to case and rests within the trial court's discretion. Ackles v. Hartford Underwriters Ins. Corp., 699 N.E.2d 740, 743 (Ind.Ct.App. 1998), trans. denied; 13 Robert Lowell Miller, Jr., Indiana Practice § 701.103 (3rd ed. 2007). Courts require greater detail as the subject of the opinion draws nearer to a central issue in the case. Whitlock, 35 N.E. 3d at 269; 13 Robert Lowell Miller, Jr., at § 701.103. Since these averments addressed the central issue of Hochberg's mental competence greater detail was required. However, in her clarification through her designated deposition statements, Hochberg did not present us with facts or examples of how she actually functioned in the days following the incident during which she claimed to be "disoriented, dazed and confused." (Appellant's App. Vol. II, p. 66). Rather, Hochberg speculated that if she had been presented with legal questionnaires and documents, she would not have been capable of attending to those legalities. Her speculation did not create a question of fact. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind.Ct.App. 2008) ("Opinions expressing a mere possibility with regard to a hypothetical situation are insufficient to establish a genuine issue of material fact. Put another way, guesses, supposition and conjecture are not sufficient to create a genuine issue of material fact to defeat summary judgment."), trans. denied. Accordingly, as Hochberg failed to create a genuine issue of material fact that she was mentally incompetent at the time her cause of action accrued, we affirm the trial court's summary judgment.
This case is distinguishable from the Indiana Supreme Court's opinion in Hughley v. State, 15 N.E.3d 1000 (Ind. 2014). Hughley involved a civil proceeding initiated by the State seeking forfeiture of the defendant's cash and car, which the State alleged were proceeds of, or were meant to be used to facilitate, the defendant's drug dealing. Id. at 1002. The defendant's affidavit recited his competence to testify and then stated in full that the currency seized during this arrest was not the proceeds of criminal activity nor was it intended to be used for anything other than legal activities, and the car was never used to transport controlled substances and was not the proceeds from any unlawful activity. See id. Our supreme court found that, although perfunctory, Hughley had designated facts with sufficient specificity sufficient to defeat summary judgment. In contrast to the affidavit in Hughley, here, Hochberg's averments in the affidavit amounted to mere general statements, which were supplemented by speculative statements in the deposition.
Appellees devote a large part of their appellate argument to applying this court's recent opinion in Diocese of Fort Wayne S. Bend, Inc. v. Gallegos, 203 N.E.3d 1080, 1086 (Ind.Ct.App. 2023), which advanced that injuries which are subjective in nature, e.g., headaches, dizziness, and mental "fogginess," must be supported by expert medical testimony. However, we find Gallegos' holding-lay witness testimony with regard to subjective injuries is not sufficient to create a question of fact on summary judgment-to be inapposite to the case at hand as Gallegos was decided within the parameters of establishing causation in a negligence action and did not analyze its applicability to the more narrow province of an exception to the statute of limitations.
CONCLUSION
[¶20] Based on the foregoing, we hold that no genuine issue of material fact existed which established that Hochberg was under a legal disability, pursuant to Indiana Code section 34-11-6-1, at the time her cause of action accrued.
[¶21] Affirmed.
[¶22] Bradford, J. and Weissmann, J. concur