Goff, J.
Statutory limitations of action are “fundamental to a well-ordered judicial system.” See Bd. of Regents of Univ. of State of N. Y. v. Tomanio, 446 U.S. 478, 487 (1980). The process of discovery and trial, revealing ultimate facts that either help or harm the plaintiff, are “obviously more reliable if the witness or testimony in question is relatively fresh.” Id. And potential defendants, of course, seek to avoid indefinite liability for past conduct. C. Corman, 1 Limitation of Actions § 1.1, at 5 (1991). Naturally, then, “there comes a point at which the delay of a plaintiff in asserting a claim is sufficiently likely either to impair the accuracy of the fact-finding process or to upset settled expectations that a substantive claim will be barred” regardless of its merit. Tomanio, 446 U.S. at 487. At the same time, most courts recognize that certain circumstances may “justify an exception to these strong policies of repose,” extending the time in which a plaintiff may file a claim—a process known as “tolling.” Id. at 487–88.
The circumstances here present us with these competing interests: the plaintiff, having been misinformed of a medical diagnosis by her provider, which dissolved its business more than five years prior to the plaintiff filing her complaint, seeks relief for her injuries on grounds of fraudulent concealment, despite expiration of the applicable limitation period. Because we consider the limitation period at issue a statute of repose (rather than a general statute of limitation or non-claim statute), we conclude that fraudulent concealment may not extend the time in which to file a claim. And even if the limitation period were subject to tolling, the defendant’s constructive fraud precludes equitable relief. For these reasons, we hold that the plaintiff’s claim is untimely. [Footnote omitted.] As such, we affirm the trial court’s order granting summary judgment to the defendant and denying the plaintiff’s motion for partial summary judgment.
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To resolve this dispute, our decision proceeds in two parts. We first examine the various statutory limitations of action—general statutes of limitation, statutes of repose, and non-claim statutes—to determine whether the IBTA permits equitable tolling. Concluding that it does not, we then ask whether a limited exception applies in cases of fraudulent concealment—a question we likewise answer in the negative on grounds that the Clinic’s constructive fraud justifies no equitable relief for Blackford.
I. The IBTA’s limitation period is not subject to equitable tolling.
Enacted in 1963, the IBTA expressly recognizes a business trust—an unincorporated association in which one or more trustees engage in professional activities for the profit of its beneficiaries—as a type of organization permitted to conduct business in the state. [Footnote omitted.]…
The Clinic argues that the IBTA’s five-year limitation period is as a statute of repose, creating a firm date “after which all claims are barred,” with no option for equitable tolling. Pet. to Trans. at 15, 17. Rather than establishing “a deadline for filing a claim from the occurrence of a tort as a statute of limitations would,” the IBTA, the Clinic asserts, “sets a distinct, outside limit as to when any claim involving a business trust which is being dissolved can be filed.” Appellee’s Br. at 16. Blackford, on the other hand, characterizes the IBTA as a non-claim statute, a type of legislation subject to equitable tolling, including in cases of fraud.
Resolution of this issue first requires us to distinguish between the various statutory limitations of action.
A. The type of statutory limitation determines whether tolling may revive an otherwise untimely claim.
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B. The IBTA’s five-year limitation period is a statute of repose, effectively barring Blackford’s claim as untimely.
Unlike a non-claim statute, the IBTA created no new right of action— i.e., a right of action “unknown to the common law.” Cf. Robertson v. Gene B. Glick Co., 960 N.E.2d 179, 184 (Ind. Ct. App. 2011) (concluding that, because “wrongful death is a creature of the legislature” for which “no cause of action existed at common law,” the time constraint under the Wrongful Death Act “is not a statute of limitations, but rather, a condition precedent”). To the contrary, long before the IBTA, the common law recognized a right of recovery for claims against a business trust, including those subject to dissolution.[Footnote omitted.] See Hewitt v. Westover, 86 Ind. App. 505, 511, 516, 158 N.E. 631, 633–34, 635 (1927) (permitting a claim of fraud against the agents and directors of an insolvent company subject to bankruptcy, whether as “a common-law [business] trust or a corporation”).[Footnote omitted.] The legislature, of course, enjoys the “power to abrogate or modify common law rights and remedies.” Dague v. Piper Aircraft Corp., 275 Ind. 520, 529, 418 N.E.2d 207, 213 (1981). But the IBTA expressly recognizes the enduring application of the state’s common law of business trusts for determining the scope of an entity’s “power and authority” to conduct business. I.C. § 23-5-1-8. And this power and authority, which a trust may surrender “at any time” when dissolving its business, includes, among other things, “the right to sue and be sued.” I.C. §§ 23-5-1-8, -11(a).
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Having ruled out the IBTA’s status as a non-claim statute, we must now decide whether to treat it as a general statute of limitation or as a statute of repose. Our analysis below leads us to classify the Act under the latter category of legislation.
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In short, we conclude that the IBTA’s five-year limitation period is a statute of repose rather than a general statute of limitation or a condition precedent to filing suit. And because statutes of repose preclude equitable rules of tolling, we hold that Blackford’s claim—filed beyond the IBTA’s five-year limitation period—is untimely.
II. Even if the IBTA were subject to tolling, the Clinic’s constructive fraud precludes equitable relief for Blackford.
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The Clinic argues that, even if an equitable exception were to apply to the IBTA, this case involves only a claim of passive (or constructive) fraud, rather than active fraud. And for this reason, the Clinic asserts, tolling would have ended, at the latest, upon termination of the doctor-patient relationship in June 2009 (when the Clinic dissolved), thus rendering Blackford’s lawsuit untimely.
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On this issue, we agree with the Clinic.
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Based on our long-standing distinction between active and passive fraud, which we re-affirm yet again today, we hold that, even if the IBTA’s statute of repose were the rare one subject to tolling, that tolling would have ended—and Blackford’s claim accrued—at the latest, upon termination of the doctor-patient relationship on June 30, 2009 (when the Clinic surrendered its authority to conduct business). And because Blackford filed suit more than five years later—on March 13, 2015—we consider her claim untimely.
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While we sympathize with Blackford’s unfortunate circumstances, we reject her invitation, which, in effect, amounts to nothing more than a request for us to abolish the distinction between active and passive fraud as it applies to her…
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Finally, we note that, by creating an exception here, we risk extending the temporal line even further in future cases that may present similar circumstances, effectively undermining the policies of “fairness and finality” we deem fundamental to our statutory limitations of action. See Porter Cty. Sheriff Dep’t v. Guzorek, 857 N.E.2d 363, 368 (Ind. 2006).
Conclusion
Because we consider the IBTA’s limitation period a statute of repose, we conclude that fraudulent concealment may not extend the time in which to file a claim. And even if the Act’s limitation period were subject to tolling, a tortfeasor’s constructive fraud precludes equitable relief. For these reasons, we hold that Blackford’s claim is untimely. As such, we affirm the trial court’s order granting summary judgment to the Clinic and denying Blackford’s motion for partial summary judgment.
Rush, C.J., and David, Massa, and Slaughter, JJ., concur.