Volume 39 Issue 9 March 1, 2012

Key v. Hamilton, No. 48A02-1007-CT-81, ___ N.E.2d ___ (Ind. Ct. App., Feb. 28, 2012).

“[A] signaling driver may owe a duty of care to a third party motorist as a matter of law when his actions result in the reasonable reliance by the signaled driver that traffic is clear.”

State ex rel. FSSA v. Est. of Roy, No. 33A04-1105-ES-24, ___ N.E.2d ___ (Ind. Ct. App., Feb. 28, 2012).

FSSA, a subdivision of the State, filed a valid lien against the property of a Medicaid recipient, had a preferred claim under Ind. Code 12-15-9-1, and was not required to file its claim within nine months of the death of the Medicaid recipient.



Key v. Hamilton, No. 48A02-1007-CT-81, ___ N.E.2d ___ (Ind. Ct. App., Feb. 28, 2012).

Vaidik, J.

Case Summary

Jacob Key, Ted J. Brown, and Sally A. Brown (collectively “the Defendants”) appeal the jury’s verdict and trial court’s judgment of $990,000 against them. They argue that the trial court erred in denying their motion for summary judgment, motion for judgment on the evidence, and motion for a directed verdict. They also argue that the trial court erred in instructing the jury on assumption of duty using the Restatement (Second) of Torts. Finding that a signaling driver may owe a duty of care to a third party motorist as a matter of law when his actions result in the reasonable reliance by the signaled driver that traffic is clear, we hold that the trial court did not err in denying the motions. We also hold that although the jury instruction for assumption of duty was given in error, it was harmless because it properly encapsulates Indiana’s negligence law. We therefore affirm.

….

However, the Defendants appear to be correct that this precise issue has not yet been directly addressed by any Indiana court. But, whether a duty exists is generally a question of law, Estate of Heck v. Stoffer, 786 N.E.2d 265, 268 (Ind. 2003), and in Webb, our Supreme Court articulated a balancing test to determine whether a duty exists. In order to impose a duty at common law, the court must balance (1) the relationship between the parties, (2) the reasonable foreseeability of the harm to the person injured, and (3) public-policy concerns. We hold that the trial court did not err in denying all of the Defendants’ motions, as a balancing of the Webb factors under these circumstances shows that Key owed a duty of care to Hamilton as a matter of law.

A. Relationship Between the Parties

Admittedly, there is no natural and readily apparent relationship between Key and Hamilton. However, looking at the circumstances of this case, we find that there was in fact a relationship between the two parties based on these particular facts.

In this case, Owens, as the signaled driver, undoubtedly had a relationship with Hamilton when turning left in front of him. Statutes make it clear that drivers have a duty to yield to drivers already in an intersection. Indiana Code section 9-21-8-31 provides:

(a) A person who drives a vehicle shall do the following:

(1) Stop as required under this article at the entrance to a through

highway.[Footnote omitted.]

(2) Yield the right-of-way to other vehicles that have entered the intersection from the through highway or that are approaching so closely on the through highway as to constitute an immediate hazard.

(b) After yielding as described in subsection (a)(2), the person who drives a vehicle may proceed and persons who drive other vehicles approaching the intersection on the through highway shall yield the right-of-way to the vehicle proceeding into or across the through highway.

(emphasis added). Similarly, Indiana Code section 9-21-8-32 provides:

A person who drives a vehicle shall stop at an intersection where a stop sign is erected at one (1) or more entrances to a through highway that are not a part of the through highway and proceed cautiously, yielding to vehicles that are not required to stop.

(emphasis added).

But while Owens, the signaled driver, had a duty to yield to Hamilton in the intersection, the issue is not whether Owens had a duty, he did, but rather whether Key, the signaling driver, also had a duty to Hamilton through his actions. We recognize that other states have found no liability for the signaling driver because of a non-delegable duty on the part of the signaled driver. Gilmer v. Ellington, 70 Cal. Rptr. 3d 893 (Cal. Ct. App. 2008); Arnold v. Chupp, 92 S.E.2d 239, 243 (Ga. Ct. App. 1956); Peka v. Boose, 431 N.W.2d 399 (Mich. Ct. App. 1988); Van Jura v. Row, 191 N.E.2d 536 (Ohio 1963). But we do not believe the analysis is so simple. Just because Owens had a duty to yield to Hamilton at the intersection does not preclude others, including Key, from also having a duty of care to Hamilton or any other motorist on the road at the same time. For example, there can be no doubt that the injured Hamilton owed a duty of care when he entered that intersection. Likewise, had there been a police officer directing traffic at the scene, he would have also owed a duty of care. The point is that more than one person may have a duty of care in a particular situation. Consequently, the question is not whether Key was taking away Owens’s duty toward Hamilton in this situation; rather, the question is whether he had his own individual duty toward Hamilton. [Footnote omitted.]

Turning to the relationship between Key and Hamilton, Key admittedly did not have any knowledge of Hamilton’s presence and Hamilton did not have any knowledge of Key’s signal to Owens before the collision. However, the circumstances surrounding the accident are such that they nonetheless point to a relationship between Key and Hamilton as both were driving on the same road, at the same time, at the same location. Further, before the accident occurred, Key investigated the traffic behind him thoroughly before determining that it was clear for Owens to turn left. Key was not just sitting in his truck, signaling to Owens, indicating that he only spoke for himself when he said that he was going to allow Owens to turn left in front of him. Rather, Key got out of his truck, stood on the doorsill, and examined the traffic situation behind him. It was only after that thorough inspection that he waved Owens through the intersection. Owens, watching Key through all of this, testified that he relied upon Key’s “all clear” before pulling out.

Based on these circumstances, we find that these actions were sufficient to create a relationship between Key and Hamilton under this first Webb factor.

B. Reasonable Foreseeability of the Harm

Under the Webb analysis, harm is foreseeable if “the person actually harmed was a foreseeable victim and . . . the type of harm actually inflicted was reasonably foreseeable.” Webb, 575 N.E.2d at 997. Hamilton’s injuries were not only a natural consequence of Key’s actions, they were also foreseeable as a result of Key’s actions. Although Owens admittedly did not pull his truck out any differently than he would have had Key not signaled to him, Appellant’s Br. p. 30, he also admitted that he would not have pulled out into the intersection at all had Key not signaled to him. Appellant’s App. p. 100. Key further admitted at trial that waving someone into an intersection can place the signaled person in a position of danger if there is oncoming traffic. See Tr. p. 217. With this reliance by Owens and Key’s awareness of the potential danger resulting from his actions, it is reasonable to infer that Hamilton’s injuries were foreseeable.

Additionally, before the accident occurred, Key investigated the traffic behind him before determining that it was clear for Owens to turn left. Key was not just engaging in the typical courtesy wave, indicating that he only was going to allow Owens to pass in front of him. Instead, he engaged in a thorough examination of the traffic behind him before waving Owens through, indicating that it was “all clear.” Key genuinely believed the intersection was clear, as he testified that he would not put someone in the “position of danger” if there was oncoming traffic.” Id.

Because of this investigation on the part of Key, it was reasonably foreseeable that Owens would rely on this signal and pull into the intersection without being able to see oncoming traffic himself due to the obstruction caused by Key’s truck. If there was an unseen oncoming motorist, like Hamilton, it would be foreseeable that Owens could collide with him in the intersection as a result of his reasonable reliance on Key’s “all clear” signal.

C. Public Policy Concerns

Society has an expectation that individuals will be held liable for the results of their actions. Public policy, therefore, demands that we hold an individual responsible for the reasonably foreseeable results of his behavior; allowing an individual to escape liability for damage he causes would fly in the face of the normal expectations of our civil society. As a result, we find that imposing a duty of care upon Key and therefore allowing a jury to weigh the facts and apportion fault as it deemed appropriate is in furtherance of sound public policy.

Specifically, the injuries sustained as a result of Key’s actions were not too remote that holding Key liable would be illogical, unfair, or risk not putting a potential tortfeasor on notice that he could be held liable for his actions. Imposing liability on Key would also not place an unreasonable burden on him; he did not have to act in the way that he did, but once he decided to, society demands that he should be held liable for the reasonably foreseeable results of his actions. Finally, there is a sensible stopping point to this creation of a duty. The commonly used courtesy wave will never be sufficient to create a duty on the part of the signaling driver. It is only when a driver engages in such a thorough examination of traffic in order to ensure another driver’s safety and gives an “all clear” signal, as was the case here, that a duty can be found.

Further, we also do not share our colleague’s fears that this will discourage courteous driving behavior or diminish the responsibility of signaled drivers. Finding that Key owed a duty to Hamilton will not discourage courteous driving behavior in Indiana. This is so because the ordinary “wave on” would not result in liability. This decision will not generate liability for the courteous driver who, for example, allows someone to pass through an intersection with a four-way stop sign ahead of him. That behavior does not create a relationship between the two drivers, nor should it. If that courteous driver, however, were to engage in such behavior as Key did to ensure the other driver’s safety in passing through the intersection, behavior that was reasonably relied upon by Owens, then he will be held to have a duty to that other driver. This will neither be a shock to our citizens nor discourage the everyday courtesy wave.

We also respectfully disagree with our colleague that this will diminish the liability of the signaled driver. We do agree that no motorist may reasonably rely upon a simple hand gesture by another motorist as a guarantee that “all is clear.” However, when a motorist engages in such a thorough inspection of the traffic situation, a motorist should be able to reasonably rely on that driver’s assessment to some extent. We should not let someone escape liability completely when they have represented to another driver that they have done a thorough inspection of oncoming traffic and determined it is safe to proceed. Key himself said at trial that he would not put another driver in danger by instructing him into the intersection if there was oncoming traffic, Tr. p. 217, and we should not expect that this would be a common practice of other motorists. But, if a collision occurs, the individual whose actions initiated the chain of events that led to it should not be devoid of all responsibility.

After analyzing the three factors articulated in Webb, we hold that Key, as the signaled driver, owed a duty to the injured Hamilton as a matter of law. Once duty was established, the jury appropriately determined fault under our comparative negligence statute assigning fault as 5% to Hamilton, 45% to Key, and 50% to non-party Owens.

….

Affirmed.

BAKER, J., concurs.

MATHIAS, J., dissents with separate opinion.

MATHIAS, J., dissenting

I respectfully dissent.

At issue in this case is whether a motorist who halts his own lane of traffic and signals to another driver to proceed across his lane can be liable to a third party who collides with the signaled driver in an adjacent lane beyond. This is a question of first impression in Indiana. [Footnote omitted.] While the majority and I analyze these facts under the rubric set forth in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), the majority concludes that, under the circumstances of this case, Key assumed a duty to Hamilton by signaling Owens to proceed. I disagree.

….

Conclusion

Based upon my consideration of the Webb factors, I would hold that, as a matter of law, a driver who signals to another driver to proceed through an intersection owes no duty to a third party with whom the signaled driver collides. Applying this holding to the designated facts of the present case at the time of Key’s motion for summary judgment, I believe that Key owed no duty to Hamilton as a matter of law. It was Owens’s statutory and common law duty to ensure that the intersection was clear before entering; and statute, public policy and common sense all support the conclusion that this duty is one that cannot be delegated to another, well-meaning and courteous motorist.

Because I am of the opinion that Key did not owe a duty to Hamilton, I would reverse, holding that the trial court should have granted summary judgment in favor of the Defendant Key. I believe that the evidence adduced at trial even more strongly confirms Key’s lack of duty as a matter of law and that either Key’s motion for judgment on the evidence or his motion for directed verdict should have been granted, as well. At every procedural step in this case, duty was a matter of law for determination by the court, and to be resolved in Key’s favor under Webb v. Jarvis, rather than a question of fact for the jury.

 

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State ex rel. FSSA v. Est. of Roy, No. 33A04-1105-ES-24, ___ N.E.2d ___ (Ind. Ct. App., Feb. 28, 2012).

Kirsch, J.

The State of Indiana ex rel. Family and Social Services Administration (“FSSA”) appeals the trial court’s order that denied FSSA’s claim against the Estate of Phillip Roy (“the Estate”) for Medicaid expenses incurred by Mr. Roy during his lifetime. FSSA raises one issue that we restate as: whether the trial court erred when it disallowed FSSA’s claim on the basis that it was not timely filed under Indiana Code section 29-1-14-1(d).

The Estate cross-appeals and raises two issues that we consolidate and restate as: whether the lien that FSSA filed against the Estate’s real property was invalid.

We reverse in part and remand with instructions.

….

I. FSSA’s Appeal

FSSA claims that the trial court erred when it determined that FSSA’s claim for reimbursement of Medicaid expenses was time-barred under Indiana Code section 29-1-14-1(d). Because the trial court’s ruling was based upon its interpretation of the statute and its application, and statutory interpretation is a pure question of law, we review the trial court’s decision de novo. In re Guardianship of E.N., 877 N.E.2d 795, 798 (Ind. 2007).

Our analysis requires us to examine Indiana Code section 29-1-14-1, which provides time limitations upon when a claim may be filed against an estate. Initially, we note that in contrast to a statute of limitations, which creates a defense to an action brought after the expiration of the time allowed by law for the bringing of such action, Indiana Code section 29-1-14-1 is a nonclaim statute, which imposes a condition precedent to enforcement of a right of action. McEwen v. McEwen, 529 N.E.2d 355, 359 (Ind. Ct. App. 1988). Indiana Code section 29-1-14-1 provides, in pertinent part:

(a) Except as provided in IC 29-1-7-7, all claims against a decedent’s estate, other than expenses of administration and claims of the United States, the state, or a subdivision of the state, . . . shall be forever barred against the estate, the personal representative, the heirs, devisees, and legatees of the decedent, unless filed with the court in which such estate is being administered within:

(1) three (3) months after the date of the first published notice to creditors [.]

. . . .

(d) All claims barrable under subsection (a) shall be barred if not filed within nine (9) months after the death of the decedent.

Here, in disallowing FSSA’s claim, the trial court relied on subsection (d) requiring that “[a]ll claims barrable under subsection (a) shall be barred if not filed within nine (9) months of the death of the decedent.” Indiana Code § 29-1-14-1(d). The problem with the trial court’s decision is that it did not consider the language of subsection (a), which provides that the statute applies to all claims filed against an estate “other than . . . claims of the United States, the state, or a subdivision of the state . . . [.]” Indiana Code § 29-1-14-1(a). That is, subsection (a) specifically exempts the State or its subdivisions from the nine-month filing requirement.

This court encountered a similar situation in Matter of Estate of Nay, 489 N.E.2d 632 (Ind. Ct. App. 1986). There, the Department of Public Welfare (“DPW”) filed a claim against decedent’s estate for reimbursement of “old age assistance” benefits. Id. at 633. The personal representative disallowed the claim because it was filed three years after the decedent’s death and was, thus, not timely filed. Thereafter, the trial court granted summary judgment in favor of DPW, allowing its claim. Upon review, this court recognized that “the claim against the estate for old age assistance was a claim by a subdivision of the state,” and that DPW’s claim was not time barred by Indiana Code section 29-1-14-1 because “claims of the state, and claims of a subdivision of the state are exempt from the statutory time period for filing.” Id. at 633-34. The Nay court characterized the statute’s language as “unambiguous” and also noted that the exemption for “claims of the state and any subdivision thereof” did not appear in the predecessor statute to Indiana Code section 29-1-14-1, which thereby reflected a legislative intent to change the law and exempt that type of claim from the time limitations. Id. at 634. Like the court in Nay, we find that FSSA is a subdivision of the State, and its claim is exempt from the nine-month filing requirement.

FSSA further asserts that not only does it have a valid claim against the Estate, but also that it is a preferred claim under Indiana Code section 12-15-9-1, which provides in part

[U]pon the death of a Medicaid recipient . . . the total amount of Medicaid paid on behalf of the recipient after the recipient became fifty-five (55) years of age must be allowed as a preferred claim against the estate of the recipient. [Footnote omitted.]

Ind. Code § 12-15-9-1 (emphasis added). [Footnote omitted.] FSSA asserts that the statute’s use of “must” is a clear statement that a trial court does not possess discretion to disallow the claim. See Matter of Estate of Cripe, 660 N.E.2d 1062, 1064 (Ind. Ct. App. 1996) (court of appeals reversed trial court’s partial denial of State’s claim for Medicaid reimbursement because Medicaid paid after recipient’s fifty-fifth birthday shall be allowed as preferred claim against estate). [Footnote omitted.] We agree that FSSA possesses a valid preferred claim against the Estate.

In its appeal, the Estate does not directly challenge or oppose FSSA’s arguments that FSSA is exempt from the nine-month filing requirement and that FSSA has a preferred claim. Rather, the Estate maintains that whether the claim is time barred is “irrelevant” to resolving the issues. Appellee’s Br. at 6, 7. It argues, “The issue is not whether the claim was timely filed in the Estate, but whether the lien was properly filed and whether the failure to administer the real estate within five months prevents a personal representative from selling real estate to pay FSSA’s claim.” Id. at 7. The Estate’s position is not a response to FSSA’s appellate claim that the FSSA is exempt from the nine-month claims period limitation and that it possesses a preferred claim that must be allowed. Indiana Appellate Rule 46(A)(8)(a) and 46(B)(2) direct that an appellee’s brief “shall address contentions raised in appellant’s argument” and the contentions “must be supported by citation to authorities, statutes, and . . . parts of the Record on Appeal.” Here, the Estate’s brief does neither. See Id. at 7-8. The Estate’s failure to respond in any meaningful way is “akin to failing to file a brief” on the issue. In such a situation, we do not undertake the burden of developing an argument for the appellee. Tisdial v. Young, 925 N.E.2d 783, 784-85 (Ind. Ct. App. 2010). “We will reverse the trial court’s judgment if the appellant presents a case of prima facie error.” Id. We find that FSSA has established prima facie error and hold that the trial court erred when it disallowed FSSA’s preferred claim for reimbursement of Medicaid benefits on the basis that it was not timely filed.

II. The Estate’s Cross-Appeal

The Estate filed a cross appeal, asserting that FSSA failed to file a valid lien to initiate their claim for administration of the estate and that FSSA’s lien, which was filed prior to the opening of the Estate, is invalid. Appellee’s Br. at 1. Upon review and consideration, we find no contested issue before us concerning FSSA’s lien.

….

The Estate argues that, in the absence of a valid lien, the Estate is prevented under Indiana Code section 29-1-7-15.1(b) from selling the real estate in order to pay off this Medicaid debt. That statute reads:

No real estate situate in Indiana of which any person may die seized shall be sold by the executor or administrator of the deceased person’s estate to pay any debt or obligation of the deceased person, which is not a lien of record in the county in which the real estate is situate, or to pay any costs of administration of any decedent’s estate, unless letters testamentary or of administration upon the decedent’s estate are taken out within five (5) months after the decedent’s death.

Because an estate was not opened within five months, the Estate argues that Co-Personal Representatives are prevented from selling Roy’s real estate and using the proceeds or a portion thereof, to pay FSSA’s claim. We disagree.

Initially, we observe that, here, the Estate already has petitioned for and received permission to sell the Estate’s real property at auction. [Footnote omitted.] Consequently, from the record before us, no party is contesting or opposing the sale of the real estate. To the extent that the Estate is now asserting that Indiana Code section 29-1-7-15.1(b) (“Subsection 15.1(b)”) precludes Co-Personal Representatives from selling the Estate’s real property, that claim is moot. As to whether Subsection 15.1(b) prevents the proceeds from the sale of the real estate from being used to pay FSSA’s Medicaid claim, we find that it does not.

Subsection 15.1(b) is contained in Chapter 7 of the Indiana Code, “Probate and Grant of Administration.” As the title suggests, Chapter 7 deals primarily with the process of opening an estate. For instance, the Chapter’s sections cover such subjects as producing the will for probate, listing the required contents of the petition to open the estate, identifying the required notices, and contesting of a will. Section 15.1 is sub-titled “Determination of Intestacy; presentation of will for probate; time limits; sale of property.” FSSA’s position is that Subsection 15.1(b), at most, imposes limitations upon an executor or administrator who desires, without court order, to unilaterally sell estate real property to pay debts of the estate; it maintains that the Subsection does not impose limitations upon a trial court’s authority pursuant to Indiana Code 29-1-15-3, discussed below, to order that real estate be sold to pay debts, claims, and expenses of an estate. We agree.

What we are concerned with here is not opening an estate, but rather with payment of claims from the estate. Indiana Code section 29-1-15-3 authorizes the sale of estate real property through a court order, and it is found in Chapter 15, titled “Sales, Mortgages, Leases, Exchanges – Personal and Real Property.” This Chapter contains rules and procedures for the sale of real and personal property from an estate. Section 3 is titled “Payment of Claims,” and provides in relevant part:

Any real or personal property belonging to an estate may be sold, mortgaged, leased or exchanged under court order when necessary for any of the following purposes:

(a) [F]or the payment of claims allowed against the estate[.]

Ind. Code § 29-1-15-3(a) (emphasis added). “By its terms, [Indiana Code section] 29-1-15-3 . . . places the decision to sell estate realty within the sound discretion of the trial court.” Rainier v. Snider, 174 Ind. App. 615, 624, 369 N.E.2d 666, 671 (1977). Chapter 15 does not contain any time limitations upon a court’s ability to issue an order for the sale of real estate. In fact, we have held, “[R]eal estate is available until the estate is closed to pay allowed claims and administrative expenses[.]” See Estate of Baker v. Lahrman, 505 N.E.2d 104, 107 (Ind. Ct. App. 1987) (recognizing that distributees’ interest to estate property is subject to divestment until estate is closed). As has been observed by one authority, “Claims against an estate are usually satisfied by the personal representative selling the real or personal property belonging to the estate under court order.” Jack K. Levin, J.D., 10 Ind. Law Encycl. Descent and Distribution § 53 (2005).

Under the Estate’s argument, “Even if a case falls within the justifications for selling real estate listed in Indiana Code § 29-1-15-3, [Subsection 15.1(b)] limits the personal representative’s power to divest title [only] to those cases in which letters testamentary or letters of administration have been issued within 5 months after the decedent’s death.” Cross-Appellant’s Reply Br. at 3. As pointed out by FSSA, the Estate’s interpretation would cut off creditors’ access to real property at five months, which is four months before general creditors must file their claims under Indiana Code section 29-1-14-1(d). Also, the Estate’s interpretation of Subsection 15.1(b) says nothing about the trial court’s authority to order the sale of personal property, presumably leaving that still available even if letters of administration are not issued in five months; this result, however, conflicts with Indiana Code section 29-1-15-1, which states in general that, when determining which assets to sell to pay estate claims, there shall be no priority as between real and personal property, except as provided by will. Montgomery v. Estate of Montgomery, 677 N.E.2d 571, 577 (Ind. Ct. App. 1997) (Indiana Code section 29-1-15-1 practically removes all distinction between real and personal property in administration of estate). Finally, the Estate’s proposal would effectively create an incentive to delay beginning probate for five months, in order to exempt real property from valid claims. Considering the statutory scheme for payment of claims, we find that Indiana Code section 29-1-7-15.1(b) is not a limitation on the trial court’s authority to issue an order for the sale of real estate under Indiana Code section 29-1-15-3.

As we determined above, FSSA is a subdivision of the State and was not required to file its claim within nine months of Roy’s death, so its claim is not time barred, and FSSA has a preferred claim under Indiana Code section 12-15-9-1, which the trial court must allow. We reverse that portion of the trial court’s order which stated that FSSA’s Medicaid claim was time-barred because it was not filed within nine months of Roy’s death, and we order the trial court to (1) allow FSSA’s preferred claim for reimbursement of Medicaid assistance and (2) direct the Estate to pay the $39,695.46 Medicaid assistance claim from the proceeds of the sale of Roy’s real estate and, if necessary, from other assets of the Estate. [Footnote omitted.] To the extent that the Estate’s cross-appeal asks us to find that the proceeds from the sale of the real property may not be used to pay FSSA’s claim, we hereby deny the Estate’s cross-appeal.

Reversed in part and remanded with instructions.

BRADFORD, J., concurs.

BARNES, J., concurs in part and dissents in part with separate opinion.

BARNES, Judge, concurring in part and dissenting in part

I concur in Part I of the majority opinion but respectfully dissent from Part II, regarding the Estate’s cross-appeal. Although I appreciate the majority’s careful analysis of the interplay between Indiana Code Sections 29-1-7-15.1(b) and 29-1-15-3, I must disagree with their conclusion that Subsection 15.1(b) does not preclude the sale of Roy’s real property to pay a debt owed to FSSA. Even though some of the language in Subsection 15.1(b) appears antiquated, any statute must be given effect unless and until the General Assembly decides to repeal it. To give effect to Subsection 15.1(b), I believe that because FSSA is no longer claiming that it has a valid lien upon Roy’s real property and because his estate was not opened within five months of death, the property cannot be sold to pay FSSA’s claim.

….

Here, there is no conflict between Subsection 15.1(b) and Sections 29-1-14-1(d) and 29-1-15-3 anytime an estate is opened within five months of death. Subsection 15.1(b) has no operation in such a case. It also has no operation with respect to the sale of either personal property, or real property upon which there is a valid lien. That it may prohibit the sale of real property without a valid lien if an estate is opened more than five months after death does not make it irreconcilable with the other, more general and more recent statutes regarding the payment of claims. Also, just because the other, more general statutes do not mention the more specific Subsection 15.1(b) or the time limit it contains does not mean the time limit does not exist.

Possibly, Subsection 15.1(b) is like a human appendix, a vestigial statute that has been long forgotten and usually performs no function, until it crops up and causes unexpected problems in a case such as this. However, it is up to the General Assembly to decide whether to perform surgery to remove it. Or, the General Assembly may believe that additional time constraints on the sale of estate real property are necessary to facilitate the expeditious and unencumbered transfer of such property. In any event, it is that body’s decision to make. I am concerned the majority has effectively repealed Subsection 15.1(b) when it is unnecessary to do so. Thus, although I agree that the trial court erred in completely disallowing FSSA’s claim against Roy’s estate, I conclude that any such claim cannot be paid from the sale of Roy’s real property.

 

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