Baker, J.
Teresa Blackford was tested by Welborn Clinic (“Welborn”) in 2003 for hepatitis as a possible cause of her skin condition, Lichens Planus. At that time, Welborn allegedly informed Blackford that the test results were negative for hepatitis. In 2014, Blackford learned that the 2003 test results had actually been positive, and she sued Welborn for medical malpractice. Blackford now appeals the trial court’s order granting Welborn’s motion for summary judgment and denying Blackford’s motion for partial summary judgment, arguing that the five-year nonclaim limitation imposed by the Indiana Business Trust Act (IBTA) should be tolled because Welborn’s fraudulent concealment prevented her from discovering she had a cause of action any sooner.
Finding that the nonclaim limitation is tolled due to Welborn’s fraudulent concealment, we reverse and remand (1) with instructions to enter partial summary judgment in favor of Blackford on the issue of the timeliness of the complaint under the IBTA; and (2) for further proceedings.
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Blackford’s primary argument on appeal is that the five-year nonclaim limitation in the IBTA is not enforceable to bar her claim where Welborn, as the entity benefitting from the statute, committed fraud that prevented Blackford from discovering that she had a cause of action within the five-year period.
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Welborn moved for summary judgment, and the trial court granted its motion, on the basis that Blackford’s claim against Welborn was filed after the IBTA’s five-year nonclaim limitation had expired. In response, Blackford filed a motion for partial summary judgment, arguing that the five-year limit should be tolled where Welborn had committed fraudulent concealment and that Welborn should be equitably estopped from invoking the nonclaim statute to benefit from its own fraud. The relevant inquiry, then, is two-fold: first, whether the IBTA’s nonclaim statute may be tolled in cases of fraudulent concealment; and second, if so, whether the designated evidence conclusively demonstrates that Welborn committed fraudulent concealment, thereby tolling the nonclaim limitation period.
The IBTA’s Nonclaim Statute
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Here, we are faced with a similarly novel issue as the Court in Alldredge— whether exceptions for fraud under applicable statutes of limitations and other nonclaim statutes may be extended, for the first time, to a specific nonclaim statute. We likewise find that the same logic our Supreme Court employed in Alldredge applies seamlessly here to similarly allow tolling the IBTA’s nonclaim limitation statute in cases of fraudulent concealment. {Footnote omitted.]
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The equitable principles and exceptions for fraud that serve to toll the applicable statute of limitations justify a parallel exception for the IBTA’s nonclaim statute. To allow otherwise would permit a now-defunct business trust to fraudulently conceal information that would reveal a cause of action until the five-year nonclaim limit had expired, at which point the former business entity would be off the hook—which is precisely the type of incentive the doctrine of fraudulent concealment, as applied to statutes of limitation, is intended to prevent.
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Fraudulent Concealment
Importantly, however, in order for this exception to apply, there must be a sufficient factual demonstration of fraudulent concealment. See Alldredge, 9 N.E.3d at 1264. Blackford argues that Welborn committed fraudulent concealment when it failed to disclose to her the correct results of her hepatitis test in 2003 and continued treating her and seeking the underlying cause for her Lichens Planus as if she was negative for hepatitis.
Fraudulent concealment may be either active or passive. A physician’s actions amount to active concealment if they are “calculated to mislead and hinder” a claimant using ordinary diligence from obtaining information, or otherwise prevent inquiry and investigation. Hughes v. Glaese, 659 N.E.2d 516, 521 (Ind. 1995) (internal quotations omitted) (quoting Keesling v. Baker & Daniels, 571 N.E.2d 562, 565 (Ind. Ct. App. 1991)). Passive or constructive concealment, on the other hand, “may be merely negligent and arises when the physician does not disclose to the patient certain material information.” Garneau, 838 N.E.2d at 1142-43. “‘The physician’s failure to disclose that which he knows, or in the exercise of reasonable care should have known, constitutes constructive fraud.’” Id. at 1143 (quoting Hopster v. Burgeson, 750 N.E.2d 841, 857 (Ind. Ct. App. 2001)).
Here, Blackford attested in a deposition that she was told by a Welborn employee in 2003 that the results of her test for hepatitis were negative. Appellant’s App. Vol. II p. 28-29. She also stated that it was not until 2014, when her health significantly worsened without explanation, that her new doctor had reason to conduct a new test that showed Blackford was positive for hepatitis; this 2014 test prompted Blackford to seek a copy of the Welborn records containing the results of the 2003 test, which actually stated that the 2003 test showed she had been “highly reactive” and positive for hepatitis, not negative. Id. at 29. [Footnote omitted.]
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Therefore, Blackford’s continued efforts to seek treatment for Lichens Planus and determine a cause of the condition show that she investigated her condition following the termination of the physician-patient relationship with Welborn in a reasonably diligent manner. Blackford states the issue here well: “the issue is not whether Welborn’s misrepresentation prevented inquiry. It did not. What it did block was [Blackford’s] inquiry from being effective.” Appellant’s Br. p. 24. To expect more of her in this scenario would effectively require that every patient in Blackford’s position—having received test results from a physician and then being treated for a condition based on those test results—continually question the accuracy of the information disclosed by their doctors and to “obtain their medical records to determine whether their physicians might have misled them.” Appellant’s Reply Br. p. 11; cf. Biedron v. Anon. Physician 1, 106 N.E.3d 1079, 1092, 1096, 1099 (Ind. Ct. App. 2018) (finding that three separate plaintiffs, in a consolidated medical malpractice appeal, each failed to demonstrate fraudulent concealment because each failed to establish that the concealment “prevented [the plaintiff] from investigating” the medical condition at issue).
As such, the evidence is undisputed that Welborn failed to disclose to Blackford that her hepatitis test was positive and, in fact, told her precisely the opposite. Based on this record, we hold as a matter of law that Welborn fraudulently concealed—at the least, passively; at the worst, actively—material medical information from Blackford.
In sum, we hold that where there is a sufficient factual demonstration of fraudulent concealment, such concealment equitably estops the fraudulent party from invoking the five-year nonclaim limit in the IBTA to time-bar a claim and thereby benefit from its own fraud. And though this is a case of first impression as it applies to the IBTA specifically, “in so holding, we break very little new ground.” Alldredge, 9 N.E.3d at 1264. Here, when Welborn’s motion for summary judgment established that Blackford’s claim was filed after the five-year nonclaim limit had expired, the burden shifted to Blackford to establish that there was, in fact, a genuine issue of material fact as to whether her claim was time-barred by the IBTA. Blackford then carried this burden when she alleged in her motion for partial summary judgment that Welborn committed fraudulent concealment when it allegedly gave her inaccurate test results in 2003 and that fraudulent concealment must estop enforcement of the five-year limit. Welborn did not designate any evidence disputing Blackford’s version of events. Therefore, the evidence regarding fraudulent concealment is undisputed. [Footnote omitted.]
As such, we find that Blackford successfully demonstrated that (1) because an equitable exception for fraudulent concealment applies to the IBTA’s nonclaim statute, it was erroneous for the trial court to grant Welborn’s motion for summary judgment on this basis; and (2) the undisputed evidence in the record establishes as a matter of law that Welborn committed passive fraudulent concealment, which does, in fact, prevent application of the five-year limit under the IBTA, rendering denial of Blackford’s motion for partial summary judgment inappropriate. Therefore, we reverse the trial court’s order and remand with instructions to enter partial summary judgment in Blackford’s favor on this issue. [Footnote omitted.]
Conclusion
In sum, we find as a matter of law that Welborn fraudulently concealed Blackford’s positive hepatitis test result. This act tolled the five-year nonclaim mitation such that Blackford’s complaint was timely filed under the IBTA. Accordingly, the trial court erred by granting Welborn’s summary judgment motion and denying Blackford’s partial summary judgment motion.
The trial court’s order is reversed and remanded (1) with instructions to enter partial summary judgment in favor of Blackford on the issue of the timeliness of the complaint under the IBTA; and (2) for further proceedings.
May, J., concurs. Brown, J., dissents with a separate opinion.
Brown, Judge, dissenting.
I respectfully dissent and would affirm the trial court’s grant of Welborn’s motion for summary judgment. At oral argument, Blackford’s counsel conceded that Blackford was not alleging there was active fraud and asserted only constructive fraud. Oral Argument at 5:56-6:04. Blackford’s counsel also argued for an abolition of the distinction between active and constructive fraud. Id. at 5:50-5:57.
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