observing that under the doctrine of expression unius est exclusion alterious, the enumeration of certain things in a statute necessarily implies the exclusion of others
How later courts described this case
- observing that under the doctrine of expression unius est exclusion alterious, the enumeration of certain things in a statute necessarily implies the exclusion of others
Written by the judges who cited it.
The opinion
DARDEN, Judge,
dissenting.
I respectfully dissent from the majority's conclusion that this action is not barred by Indiana's two-year statute of limitations. Despite my heartfelt sympathy for Mr. Januchowski, who suffered grievous injuries that gave rise to his claim, I agree with the trial court as to the law in this regard.
It is undisputed that Indiana courts and federal courts have concurrent jurisdiction with respect to a claim under FELA. 45 U.S.C.A. § 56 . As a result, in my opinion, when a FELA action is adjudicated in an Indiana state court, we apply "state procedural rules" and "federal substantive law." Gouge v. Ind. Commuter Transp. Dist., 670 N.E.2d 363, 365 (Ind.Ct.App.1996).
*1051 Here, the injury occurred on October 5, 2004, and Januchowski filed his claim in an Indiana state court on October 31, 2006. FELA provides for a three-year statute of limitation for filing a claim, see 45 U.S.C.A. § 56 , whereas, the Indiana Tort Claims Act contains no express statute of limitation provision. The majority finds the latter dispositive, as constituting the choice of Indiana's legislature not to include a statute of limitation for the Indiana Tort Claims Act, thereby permitting application of FELA's statute of limitation provision when a FELA claim is filed in an Indiana state court. However, such ignores the fact that Indiana does have a statute of limitation for personal injury claims, to wit: two years, see Ind.Code § 34-11-2-4, and the long-standing principle that statutes addressing the same subject are in pari material and to be read in harmony if possible. See eg., Saintignon v. State, 749 N.E.2d 1134, 1137 (Ind.2001); United States Gypsum, Inc. v. Indiana Gas Co., Inc., 735 N.E.2d 790, 802 (Ind.2000).
Given the concurrent subject matter jurisdiction of Indiana and federal courts, Januchowski had a choice of forums. However, the forum he chose was the state court. He chose to pursue his FELA claim under the Indiana Tort Claims Act, complying with its notice requirements and subsequently filing this action in an Indiana state court. I find that by choosing to file his action in the state court, he brought himself within the jurisdiction of Indiana's procedural laws-including the Indiana procedural statute providing for a two-year statute of limitations for personal injury claims. Cf. Northern Indiana Commuter Transp. Dist. v. Marron, 812 N.E.2d 185, 188 (Ind.Ct.App.2004) (worker's choice to bring FELA action in state court subjected him to state venue procedure).
Accordingly, I would affirm the trial court's grant of summary judgment to NICTD.