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Gray v. Daimler Chrysler Corp.1/27/2005
fer from the various types of occupational diseases justifies the disparate treatment accorded to them in Indiana Code section 22-3-7-9(f).
Gray next contends that Indiana Code section 22-3-7-9(f)(1) as applied violates Article I, Section 23 because it grants unequal privileges and immunities to the class of individuals exposed to silica dust while on the job . Under Indiana Code section 22-3-7-9(f)(1), individuals whose disablement due to silica dust occurs within three years of their last work-related exposure to that hazard are entitled to compensation, while individuals whose disablement occurs beyond the three year time frame are left with no remedy.
Gray asserts that the situation presented here is similar to the one our supreme court faced in Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999). In that case, the patient, Martin, sued her doctor, Dr. Richey, under Indiana's Medical Malpractice Act for his failure to timely diagnose her breast cancer. Dr. Richey argued that Martin's complaint was time-barred under Indiana Code section 34-18-7-1(b), which provides:
A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect . . . .
The trial court granted summary judgment for Dr. Richey. On appeal, Martin contended that the statute of limitations in Indiana Code section 34-18-7-1(b) violated the Privileges and Immunities Clause of the Indiana Constitution. We reversed the trial court holding that the statute of limitations in Indiana Code section 34-18-7-1(b) was unconstitutional on its face because it violated Article I, Sections 12 and 23 of the Indiana Constitution.
On transfer, our supreme court agreed with our conclusion that the preferential treatment extended under Indiana Code section 34-18-7-1(b) was not uniformly applicable to all malpractice victims, but disagreed with our conclusion that the statute was facially unconstitutional. Id. The court ultimately held that the statute of limitations in Indiana Code section 34-18-7-1(b) as applied to Martin was unconstitutional under Article I, Section 23. Id. at 1282.
We believe that Martin is distinguishable. Martin dealt with the constitutionality of a statute of limitations, while here, we are asked to decide whether a statute of repose is constitutional. As we earlier stated, a statute of repose is not the same thing as a statute of limitations. Unlike a statute of limitations, a statute of repose may bar a cause of action before it arises, which is what happened here. See Kissel, 579 N.E.2d at 1326.
We do, however, believe that McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000), is instructive here. In that case, McIntosh brought suit under Indiana's Product Liability Act for injuries he sustained while using a piece of machinery manufactured by Melroe, which he alleged was defective. Melroe filed a motion for summary judgment based on the statute of repose in Indiana Code section 34-20-3-1(b), which provides that "a product liability action must be commenced . . . within ten (10) years after the delivery of the product to the initial user or consumer." The trial court granted Melroe's motion for summary judgment and we affirmed.
On transfer before our supreme court, McIntosh argued that the statute of repose in Indiana Code section 34-20-3-1(b) violated Article I, Section 23 of the Indiana Constitution. He asserted that the statute created "an impermissible distinction between tort victims injured by products more than ten years o
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