Promises Must Be Kept – Unless?

Promises Must Be Kept – Unless?

ForceMajeure/Impossibility/Impracticability of Contractual Performance

Pacta sunt servanta” – “Promises must be kept”, is an age-old, fundamental tenet of the law of contracts. Yet, how many times in this pandemic age do we hear: “You can’t do that!  We had a deal!” Cruise ship vacations, season tickets, wedding receptions, banquets, etc. etc. are all susceptible to governmental health regulations limiting the number of people permitted to gather, requiring social distancing and masks. As a result, performance of many contracts entered into before Covid-19 has become impossible. The promise cannot be kept.

Two legal doctrines come into play in these circumstances: one an express i.e., written, condition to an agreement (a “force majeure” provision); the other a legally implied condition, i.e., an unwritten but nevertheless a condition that is still by implication a part of contracts (impossibility/impracticability of performance). Force majeure contractual provisions will be addressed below with some interesting examples.

Part I

A force majeure[1] clause is a written condition to a contract excusing performance if a superior, irresistible force or extraordinary unforeseen event, beyond a party’s control, prevents performance of contractual obligations. When there is a force majeure clause in a contract, the contract itself has to be reviewed to determine whether an event occurring after the contract is signed excuses performance. The language of the agreement, in other words, determines whether the unexpected extraordinary occurrence, like a pandemic, excuses performance. If the contract language excuses performance in the event of extreme weather but says nothing about a pandemic, the Covid-19 crises will be no excuse for non-performance by the party relying on the force majeure clause. If, however, the contract expresses an agreement that the parties are relieved of performance if there if a pandemic, then it is likely that the contract becomes a nullity if a Covid-19 crisis occurs. The critical question is whether the broad meaning of the clause includes a relevant qualifying event that would encompass a pandemic. In other words, does the language in the force majeure provision excuse performance?  Keep in mind that when a court interprets a contract, its objective is to determine the intent of the parties at the time the contract is executed, judging by the language in the contract itself.

It is of more than passing interest that one of the very rare Indiana cases dealing with a force majeure clause involved the City of South Bend. In 2001, the City, the Century Center, and the National Football Foundation (“NFF”) entered into agreements for the operation of the College Football Hall of Fame. In July 2012, however, the NFF announced its departure from South Bend and the closing of the Hall of Fame as of December 31, 2012. But Specialty Foods was a party to one of those agreements, giving it the exclusive right to provide food and beverages in the Hall. Even though the Hall had announced its move to Atlanta, Specialty Foods expressed its desire to extend its agreement until August 2015. Clearly, the City wanted no part of that development and defended a Specialty Foods suit by relying on the contract’s force majeure provision which, in pertinent part, read;

In the event Century Center or [Specialty Foods] shall be…prevented from the performance of any obligation required under this Agreement by reason of…acts of God,…or any other reason not within the reasonable control of Century Center or [Specialty Foods] … then the performance of such obligation shall be excused.

The appellate court concluded that”…the terms of the force majeure provision excusing performance for ‘any other reason not within the reasonable control of Century Center’ includes the closure and relocation of the Hall of Fame.”

So, the City owed no damages to Specialty Foods. The language of the force majeure part of the agreement prevailed and the City was relieved of its obligations to Specialty Foods.  Specialty Foods of Ind. Inc. v. City of South Bend, 997 N.E.2d 23, 27, 29.

The bottom line is this:  if a force majeure clause is drafted in a contract, it should be specific yet all-inclusive of possible factors that could arise to make performance impossible or impractical.

Part II

In Part I of this article, the force majeure provision in a contract was described. As the City of South Bend knows, such a condition can be effective. But, here’s the twist: if the force majeure provision is poorly drafted, keeping in mind that the scope and effect of the agreement depends on the specific contract language, the implied condition to the agreement that performance must be possible may be lost. Stated differently, since the court will not rewrite the agreement for the parties, the language of the force majeure clause supersedes the impossibility of performance implied condition to each contract. The written agreement language, i.e., the force majeure language, trumps the implied impossibility of performance and removes the implied condition of performance from consideration.

If a force majeure provision is not included in the contract, both common law and the Uniform Commercial Code (UCC sec. 2-615) recognize impossibility of performance (caused by a supervening event that was, while not inconceivable, likely unforeseeable at the time of the contract such that a reasonable party would not have guarded against it in the contract), as a defense to a claim for damages for failure to perform contractual obligations.

The distinction is not without consequences. As stated, impossibility of performance is a defense to an action for damages for breach of contract. Implicitly, where the performance of a contract becomes impossible, nonperformance is excused, and no damages can be recovered. Keep in mind that performance must be not just difficult, however, but impossible. Merely because the contract is burdensome or unprofitable does not excuse performance. Likewise, impracticability of performance, as opposed to impossibility of performance, is a questionable defense to a suit for damages under current Indiana law. But, impracticability can be an excuse for non-performance IF the parties agree to it in writing in their contract as being a good reason for non-performance, in keeping with the principle that a court must determine the intent of the parties at the time the contract is executed and give effect to it.

Impossibility of performance as an implied condition to any contract does have its limitations. It is a defense, not an offensive legal tool. It can be used to excuse performance not to create obligations. Maud Hinshaw’s story is an example.

Ninety-nine years ago, the Indiana Court of Appeals decided Gregg School Twp v. Hinshaw, 132 N.E.586 (Ind. App.1921). Maud’s services were engaged as a schoolteacher by a township trustee for a 6-month term on an hourly pay basis. After she began teaching, health authorities temporarily closed the schools because of an epidemic of influenza. (Sound familiar?) Maud made up part of the time lost because of the closure but not all of it and refused to make up additional time, although she was given the opportunity to do so unless additional compensation was paid for her services. The trustee refused, however, and demanded that she fulfill her obligations under the contract. The case was tried and Maud was awarded $62.12 ($3.25 per day).

On appeal, the court reversed the trial court judgment in Maud’s favor. It reasoned that the school’s closure was an unanticipated order issued by health officials after the contract was entered into and was entirely beyond the trustee’s control. Consequently, the contract was impossible to perform and non-performance was, therefore, excused and no damages could be recovered by Maud. Impossibility of performance could, in other words, work as a defense to Maud’s claim, but Maud could not use is offensively to recover damages for services she had not performed.

So, to recap: impossibility of performance is a defense to a claim for damage because of contractual breach. Performance of the contract must, however, be impossible, not merely difficult or unprofitable. The impossibility to perform contractual obligations must be the result of an act of God, or an act of the law or the destruction of the subject matter of the contract, e.g., you agree to buy a house but the house is destroyed by fire before the closing of the deal.

Whether a person has a defense to a contract because of the pandemic, or any other event rendering performance impossible is, as can be seen, very fact sensitive. Consultation with legal counsel is recommended should this situation occur.

Please contact Bob if you have questions about the impracticability or impossibility of contractual performance under the current pandemic situation.

[1] A fancy French phrase meaning “superior force”.

Robert J. Konopa, Civil Litigator, Mediator, Partner, Tuesley Hall Konopa, LLP

Author: Partner, Robert J. Konopa, is a seasoned civil litigation attorney and certified mediator at Tuesley Hall Konopa, LLP.

Bob’s vast experience includes successful representation of both plaintiff and defendant cases including personal injury, wrongful death, product liability, and professional malpractice.

You can contact Bob by calling 574.232.35378 or email rkonopa@thklaw.com.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
Importance of Depositions in Business Litigation

Importance of Depositions in Business Litigation

Most organizations find themselves in litigation at some point in the life of the business. Maybe a disgruntled former employee brought a claim, or you had to go after a customer who didn’t pay—or a supplier who didn’t deliver. Maybe a contract went wrong, or a real estate deal turned sideways. Maybe you needed to enforce a non-compete or you hired someone under a non-compete and got drug into that dispute. Whatever the reason, most businesses will find their names in court documents on occasion. When that happens, you hire attorneys to advise you and to represent your interests in the courtroom. Every case is different, and every client has unique motivations, but most of the time, the instructions to the lawyer are something along the lines of: “Get this thing over quickly, cheaply, favorably, and with as little disruption to the business as possible.”

The work of a business litigator is to partner with the client in achieving those aims as the dispute travels through its various stations along the journey to resolution. Often, an important stop on the way involves depositions. Readers of this blog probably know what a deposition is, either through personal experience or from memories of Bill Clinton. But for the uninitiated or those who may have forgotten, a deposition is a when an attorney questions a witness under oath as part of the pre-trial fact-gathering process. It generally takes place in an attorney’s conference room and often lasts several hours. I tell clients a rough average is 4 hours, but I’ve sat through depositions twice that long, and I’ve also seen quick depositions that take less than an hour. I’ve never met a witness who enjoys being deposed. Even expert witnesses who do it regularly dislike depositions. But they are a critical part of the litigation process. Understanding a little more about their purpose and function may help prepare your business for its next litigated dispute.

First, if you or someone else in your organization is going to be deposed, it will be costly. The witness needs to prepare well before the deposition itself. The day of the deposition is likely to be long. And you will be paying an attorney to advise, assist, and advocate for you throughout the process. You will also be losing productivity while the company’s witness tends to these matters instead of running the business. Whole books have been written about the art of preparing for a deposition. I won’t repeat those strategies here, but you should lean on your attorney for guidance in this important area.

Second, depositions may be unavoidable. Parties to a lawsuit generally have a right to investigate facts relevant to the lawsuit, including questioning knowledgeable witnesses. You would not want anyone limiting your rights in that regard, and it is generally hard to limit the other party’s rights, too. But that’s not to say your opponent has an unlimited ability to question anyone it likes. The law says that any discovery process must be “proportional to the needs of the case.” And a strong body of law protects “apex employees,” such as corporate executives, from being deposed when they were not personally involved in the matters covered by the lawsuit. A good business litigator may also be able to negotiate other ways of limiting or delaying the burden of depositions.

Third, depositions have an outsized position in the mind of many attorneys. A lot of statistics are available on the so-called “vanishing” civil trial, but in general, an average civil case stands around a 95% (or greater) chance of being resolved without a trial. The reasons for this have been debated elsewhere, but one consequence is that many lawyers treat the opponent’s deposition as the showcase event in a lawsuit. If you are paying a lawyer to take a deposition on your behalf, you should instruct him or her to guard against this selfish tendency. And if someone in your organization is going to be questioned by an opposing lawyer, you should be prepared that this force may be at work.

Finally, there is no denying that depositions are powerful. When a witness is “locked in” to a certain line of testimony, that narrative will control the rest of the lawsuit. Likewise, when a party is forced to explain his or her position under the stress of adverse questioning, everyone gets a good sense of the strengths and weaknesses of that position. Deposing key witnesses is almost always essential in the rare cases that go to trial, and it is often necessary to facilitate a settlement or a key pre-trial motion in other cases.

Considering all this, nearly everything about depositions runs counter to the goals most clients pursue of resolving their litigation quickly, inexpensively, and without disrupting the business. But clients also want to resolve the dispute favorably. Finding the right balance of when and how depositions fit into these objectives is something your business litigator should be discussing with you. Make sure you are comfortable with the advice you receive on that score and that your organization is read when depositions need to be taken or defended.

Michael J. Hays, Business Counsel & Partner, Tuesley Hall Konopa, LLP

Author: Michael J. Hays is a civil litigation attorney and Partner at Tuesley Hall Konopa, LLP. His practice areas include civil litigation, employment law, business counsel, and contract review. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or by email mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
Are Land Contracts Ever a Good Idea?

Are Land Contracts Ever a Good Idea?

Land Contracts so often lead to trouble for either the buyer or the seller. Is it ever a good idea to use one to transfer real estate?

Yes. With the right circumstances and a fair document, a land contract (sometimes called a “contract for deed”) can be a great way to transfer real estate when traditional financing is not available.

More often, we hear about terrible results from land contracts. Unscrupulous sellers can use them to trap low-income buyers who make a down payment, invest thousands of dollars for basic repairs, but miss one or two payments and then have everything taken away – evicted as if they had been a tenant. Or sellers complain that they thought they had sold the house only to find the buyer stopped making payments and they have to get a lawyer involved to regain possession.

Land contracts work best when (a) the house is in good shape, to begin with; (b) the buyer has good credit and can afford to purchase and maintain the home, but (c) the purchase price of the home is too low to support a traditional mortgage loan. In South Bend, we have a large number of homes that sell for less than $50,000. In many cases, banks and other mortgage lenders will not finance home sales in this range because federal regulations limit the fees they can charge to a small percentage of the loan amount, making a $40,000 loan (the loan amount after 20% down on a $50,000 house) simply unprofitable for the bank. Most of these homes are bought and sold on land contract.

Under good conditions – with a home in good shape and a buyer with good credit – a land contract can work well if it’s written fairly for both the seller and the buyer. Unfortunately, many of these deals are done with forms downloaded for free from the internet – most of which are poorly written or are one-sided (usually in favor of the seller).

When a lawyer reviews a land contract, he or she is usually looking to see how the contract handles a few key issues:

  • Property Identity: Is it clear which legal parcel is being sold and what its boundaries are? It’s easy to check the public GIS records to make sure that what the County thinks the property boundaries are matches what the parties think is being sold. (Also good to check whether there might be any obvious boundary disputes with neighboring properties).
  • Term: Over how many months will the seller finance the transaction? Is there a simple-to-understand schedule of payments?
  • Interest Rate: Is the interest rate fair?  When you check the calculations, is the actual interest rate paid the same as the interest rate listed in the contract?
  • Disclosures or Warranties:  Has the seller disclosed all defects that the seller knows about? Is the seller making any warranties about the condition of the home or major systems (e.g. plumbing, electrical, HVAC, roof)?
  • Control: Does the buyer have full control over the property, except to allow the seller the right to inspect the property from time to time upon reasonable notice?
  • Recording: Do the parties plan to have the land contract (or a summary) recorded? The buyer wants this both to give notice to the world of their interest and also to enable them to claim a homestead exemption.
  • Mortgage Right: The seller should retain the right to mortgage the property during the term of the contract, so long as the balance of the mortgage loan never exceeds the balance due on the contract.
  • Forfeiture: Have the parties agreed at what point the seller has made enough payments that they have “a substantial interest” in the property such that a default would lead to foreclosure rather than forfeiture? It’s better to pick a dollar figure – usually around 30% of the purchase price.

Finally, when someone is buying a home on a land contract, it’s always a good idea to have a basic title search done on the property before signing the contract. For around $150, a title company will comb through public records to (a) confirm that the party selling the home actually owns it and (b) reveal whether any other parties have liens on the property. It would obviously be a waste of time and money for a buyer to make years of payments only to later learn that the seller can’t transfer clean title.

James (Jay) M. Lewis, Certified Mediator, Trial Lawyer, Partner, Tuesley Hall Konopa,LLP

Author: Partner, James (Jay) M. Lewis, is a business and civil litigation attorney at Tuesley Hall Konopa, LLP. Jay counsels business clients on employment-related matters. He is also a certified mediator and is licensed to practice in Indiana and Michigan.

You can contact Jay by calling 574.232.3538 or by email jlewis@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
Real ID Act

Real ID Act

Go to your wallet and pull out our Indiana driver’s license. Does it have a star in the upper right-hand corner? If not, then it may be time to take a trip to the BMV (Bureau of Motor Vehicles) to get a “Real ID.”

The Real ID Act passed in Indiana in 2010 but has been on the books at the federal level since 2005. Eric Feldman, Hoosiers will soon need Real ID to fly, August 18, 2017, https://www.wishtv.com/top-video/hoosiers-will-soon-need-real-id-to-fly/1063744787 (last accessed October 2, 2018). A Real ID is now required “for everyone applying for a new Indiana credential (driver’s license, learner’s permit, or identification card.).” Real ID Overview, Bureau of Motor Vehicles, https://www.in.gov/bmv/2577.htm (last accessed October 2, 2018). Indiana residents who are simply renewing, amending, or replacing their driver’s license may apply for a “non-compliant credential, but are encouraged to obtain a Real ID-compliant credential.” Real IDs will become important in the next few years, as beginning October 1, 2020, “a Real ID-compliant driver’s license, permit, or identification card will be required to board commercial airplanes,” take the Amtrak train, “or enter certain federal facilities” without a Homeland Security-approved document. Real ID Overview, Bureau of Motor Vehicles, https://www.in.gov/bmv/2577.htm (last accessed October 2, 2018); Eric Feldman, Hoosiers will soon need Real ID to fly, August 18, 2017, https://www.wishtv.com/top-video/hoosiers-will-soon-need-real-id-to-fly/1063744787 (last accessed October 2, 2018).

Applying for a Real ID is a relatively straightforward process, provided you have the appropriate documents and have never changed your name. I obtained a Real ID in under ten minutes without realizing what it even was. But for those who may be known by a name different than that on their birth certificate or passport, the process can be tricky.

The Indiana BMV website details the information you must bring with you to obtain a Real ID. If your legal name matches your identity document, then you must bring an unexpired U.S. Passport, U.S. Passport Card, or Birth Certificate to establish your identity and your lawful status. You must also present one original document with your current legal name and Social Security number to establish your Social Security number. Additionally, you must present two original documents with your name and Indiana residential address to establish Indiana residency. https://www.in.gov/bmv/2777.htm.

If your legal name does not match your driver’s license or identity card, then you must bring all of the documents identified above as well as proof of your name change. This could be your marriage license, divorce decree, certified amended birth certificate showing the change of gender, or court order granting a name change. If your legal name has changed multiple times since your last driver’s license or ID card was issued, then you must bring proof of every single name change.

Elizabeth (Libby) A. Klesmith, Litigator, Business Counsel, Tuesley Hall Konopa, LLP

Author: Elizabeth (Libby) A. Klesmith is a civil litigation and business attorney at Tuesley Hall Konopa, LLP. Her practice areas include real estate, insurance defense, and trademark law. She is licensed to practice in Indiana and Michigan

You can contact Libby by calling 574.232.3538 or email eklesmith@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
Will Arbitration Sweep the Nation?

Will Arbitration Sweep the Nation?

You may have heard that just last month, the United States Supreme Court ruled employers can enforce binding arbitration agreements with their employees—even if the agreements waive all rights to participate in class action lawsuits. The case is called Epic Systems Corp. v. Lewis.

For employment law, this is a big deal. Just hours after the Supreme Court decision was announced, one national law firm posted information on its website offering to help clients prepare binding arbitration agreements. But is it a big deal for your business?  Should local employers change their policies or practices?

It depends. The Epic case was actually a combined decision dealing with three different cases. All three involved claims for overtime compensation under the Fair Labor Standards Act. All three also involved large-scale employers with hundreds of employees in the same job classification. For those companies, the risk of a class action was high. One or two claims surrounding overtime issues can be handled quietly. But if a complaining employee can orchestrate a class action involving hundreds (or more) current and past employees, that’s a different kind of problem. Business owners often complain about the costs of litigation. But class action litigation is on a completely different plane. The costs and risks are enormous. In some circumstances, a class action can force a company into bankruptcy.

So for Epic Systems and the other employers involved in that case, it made sense to hold their employees to an agreement compelling arbitration and waiving the right to a class action—and to fight the issue all the way to the Supreme Court. You should consult with your own legal, business, and financial advisors to determine if it makes sense for you. When you do, you may wish to think about arbitration agreements more broadly. Even if you believe the risk of a class action is low or claims for overtime compensation unlikely, the Epic Systems case is the latest in a trend favoring arbitration. The specific arbitration agreement used by Epic Systems Corporation did not cover workplace discrimination or harassment claims, but it might have. Knowing the federal courts take a strong pro-arbitration stance, you might want to consider requiring all employees enter into agreements requiring them to arbitrate all claims. Arbitration proponents argue it is faster, less costly, and more efficient than litigation. They also tout the confidentiality of the process. All those benefits could be yours, providing you with a mechanism to keep any employment dispute out of the courts.

But all rewards come with risks, and arbitration has its complications, too. For example, there is almost no opportunity to appeal an arbitrator’s decision.  Also, experience shows the costs of arbitration can, in some cases, run higher than courtroom litigation. Further, some observers complain that arbitrators often make “split the baby” decisions, rather than ruling in favor of one party or the other.

On top of all that, if you want to use arbitration to resolve employment disputes, you’ve got to have a binding arbitration agreement in place. Most of your at-will employees likely do not have a contract of any type.  You will want to structure any arbitration agreement in ways that do not change the at-will status.  And the law requires some other specific contract provisions if an employee is waiving statutory rights.  Although courts have been very favorable to arbitration agreements in recent years, that does not mean an employee won’t fight the issue. If you have to fight in court about the validity of the agreement before you even get to fighting about the underlying employment issue, then you have definitely missed out on the promise of prompt and inexpensive resolution.

Also, the law on this subject may change. Late last year, Senators Gillibrand and Graham introduced a bi-partisan bill called the Ending Forced Arbitration of Sexual Harassment Act of 2017. Early this year, the attorneys general of all 50 states, the District of Columbia, and the five U.S. territories sent a letter to Congress in support of the law. This may or may not become law, and if it does, there may be more to discuss about the differences between “forced” and “voluntary” arbitration.  But there is broad support across the political spectrum for combating sexual harassment. Many believe the confidentiality of an arbitration process is unsuitable for these types of claims. In fact, when it comes to confidentiality, you may have missed the so-called Weinstein provision in the recent tax law that prohibits employers from deducting legal expenses incurred as part of a sexual harassment case if the case is resolved through a confidential settlement.

Of course, differences between sexual harassment and other types of employment claims represent just one of the many factors to consider in evaluating the merits of an arbitration agreement for your employees. The courts will generally allow these kinds of agreements. But employers have to think carefully about when or whether to use them. Only time will tell if the Epic Systems case prompts a wave of arbitration agreements across the country.

Call 574.232.3538, if you’d like to make an appointment to discuss the merits of an arbitration agreement for your employees.

Michael J. Hays, Business Counsel & Partner, Tuesley Hall Konopa, LLP

Author: Michael J. Hays is a civil litigation attorney and Partner at Tuesley Hall Konopa, LLP. His practice areas include civil litigation, employment law, business counsel, and contract review. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or by email mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
Statutes of Limitations

Statutes of Limitations

Most of us live in a world of deadlines: the deadline to pay taxes; the deadline to buy Christmas presents, the deadline for punching in at work, the deadline for getting to the first tee in keeping with your tee time, and on and on.

Statutes of limitations are also deadlines. Statutes of limitations are creatures of the legislature. They are laws enacted by the legislative branch of state government limiting the time for the filing of a suit or prosecution of a criminal case. A person who is sued after the limitation period, the deadline, has expired may raise the statute of limitations as a defense to the claim and, if successful, the case will be dismissed because of the late filing.

Statutes of limitations are predicated or based on the assumption that a person with a valid claim will not delay in enforcing it. Absent fraudulent concealment of the claim by the alleged wrongdoer or another exception to the running of the limitation period, the public interest in statutes of limitation is two-fold: 1) giving the defendant timely notice that a claim is being made against him/her by formally filing a complaint in court and 2) terminating the claim if no suit is commenced within the time given by the applicable statute of limitations to do so i.e., the deadline.

In Indiana, which statute of limitations is applicable to a claim depends on the claim that is being made. When a claim is being made for a tort, (a non-contractual civil wrong for which compensation may be recovered), the statute of limitations is, generally, two (2) years. For a contract claim, however, there are various limitation periods, depending on the nature of the contract. For claims involving accounts and contracts, not in writing, for example, the limitation period is six (6) years. IC 34-11-2-7. Actions upon contracts in writing (with exceptions) must be commenced within ten (10) years. IC 34-11-2-11. Other limitations are part of the specific statute creating the claim. Medical malpractice claims must be commenced “… within two (2) years after the date of the alleged act, omission, or neglect, …”, IC 34-18-7-1, and a worker’s compensation claim is forever barred unless a claim for compensation is filed with the Worker’s Compensation Board within two (2) years after the occurrence or accident resulting in the employee’s injury or death. IC 22-3-3-3.

Keep in mind that every claim that can be made in this and other states has a statute of limitations regulating the time during which the claim must be made. These statutes are quite specific to the precise claim being made and vary in the deadline from claim to claim. It is prudent therefore if you have a potential claim against another to consult with legal counsel as close in time to the commission of the wrong as is possible and err on the side of being too soon — it’s much better than being too late!

Robert J. Konopa, Civil Litigator, Mediator, Partner, Tuesley Hall Konopa, LLP

Author: Partner, Robert J. Konopa, is a seasoned civil litigation attorney and certified mediator at Tuesley Hall Konopa, LLP. His vast experience includes successful representation of both plaintiff and defendant cases including personal injury, wrongful death, products liability, and professional malpractice.g.

You can contact Bob by calling 574.232.35378 or email rkonopa@thklaw.com.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.