Question: Can the Doctrine of Fraudulent Concealment toll Indiana’s 2 year statute of limitations for a wrongful death action?
Answer: Yes. Indiana enacted a wrongful death statute in 1852. Like other wrongful death acts across the country, this statute was enacted to solve what was perceived to be a gross inequity in the common law—that because there was no common law action that allowed a person’s family members to recover when another’s wrongful act or omission killed their loved one and the person’s own claim died with him, it was often cheaper for a defendant to kill his victim than to maim him.
Next, denying a decedent’s personal representatives the ability to file a wrongful death action when such cause of action has been fraudulently concealed by a defendant beyond the WDA’s 2 year limitations period would allow the defendant to take egregious advantage of his or her own malfeasance. The United States Supreme Court has stated: We need look no further than the maxim that no man may take advantage of his own wrong.
Thus, fraudulently concealing the existence of a wrongful death action beyond the WDA’s 2-year limitations period, decedent’s personal representative shall be entitled to commence the action within the lesser of two years from the date of the discovery of the cause of action or two years from the discovery of facts that, in the exercise of reasonable diligence, should lead to the discovery of the wrongful act or omission that resulted in the death.
