Bradford, J.
Appellants-Plaintiffs Tomika Johnson, et al., appeal from the trial court’s entry of summary judgment in favor of Appellees-Defendants David Sullivan, M.D., et al. Concluding that there is a genuine issue of material fact regarding whether Johnson timely filed her proposed medical malpractice complaint, we reverse and remand for trial.
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The proposed complaint is file-stamped December 23, 2008, and the envelope in which it was mailed is postmarked with that date. Tomika, however, contends that there is a genuine issue of material fact regarding whether the complaint was actually filed the day before, which, if true, would mean that it was timely. Tomika designated, inter alia, an affidavit from Amanda Kifer, legal assistant to Tomika‟s attorney, in which she averred that she deposited the proposed complaint at the post office on December 22, 2008.
Under the Medical Malpractice Act, the date of delivery or mailing, not the date of postmarking, is the date a proposed complaint is considered filed. “A proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” Ind. Code § 34-18-7-3(b) (2006). “A letter, package, or other mailable matter is ‘mailed’ when it is properly addressed, stamped with the proper postage, and deposited in a proper place for receipt of mail.” BLACK’S LAW DICTIONARY 952 (6th ed. 1990). In short, Kifer averred that all of the above was done on December 22, 2008, which, if true, would render the filing timely. While it may be that a postmark indicates the date on which an item was mailed in the vast majority of cases, there is no indication in the record that this is always so. We hold today that evidence of mailing on a particular date, even if it contradicts a postmark, is competent to prove filing on that date for purposes of the Medical Malpractice Act. Consequently, such evidence may generate a genuine issue of material fact regarding whether the proposed complaint was filed on December 22, 2008, or December 23, 2008.
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We affirm in part, reverse in part, and remand for proceedings not inconsistent with this opinion.
BAKER, J., concurs with opinion.
RILEY, J., concurs.
BAKER, Judge, concurring with opinion.
While I fully concur with the majority, I write separately to suggest that the issue of whether the complaint was timely mailed might be tried first. Only if the answer is in the affirmative, should the parties undertake the expense of conducting discovery and presenting their proof of the remaining issues. Trial Rule 42(C) specifically authorizes this procedure, and utilizing it in these circumstances would potentially save both public and private resources.