Batchelder v. Haxby, 3--274A29

• Citation: 167 Ind.App. 82, 337 N.E.2d 887
• Case Date: December 03, 1975
• Court: Court of Appeals of Indiana

Page 887

337 N.E.2d 887 167 Ind.App. 82 Esther C. BATCHELDER, Plaintiff-Appellant,
v.
Stephen M. HAXBY et al., Defendants-Appellees. No. 3--274A29. Court of Appeals of Indiana, Third District. Dec. 3, 1975.
Rehearing Denied Jan. 16, 1976.

[167 Ind.App. 83]

Page 888

Gene R. Duffin, Goshen, for plaintiff-appellant.

David B. Keller, City Atty., David A. Travelstead, Associate City Atty., Fort Wayne, for defendants-appellees.

GARRARD, Judge.

Appellant Batchelder filed suit for injuries sustained in an automobile collision between her vehicle and one owned by the City. The City answered in three paragraphs, one of which asserted as a defense the failure of Batchelder to give the notice required by statute. The City's subsequent motion for summary judgment was granted for Batchelder's failure to comply with the notice requirements of the tort claims statute.

Page 889

IC 1971, 18--2--2--1, Ind.Ann.Stat. § 48--8001 (Burns 1963 Repl.) ¹

On appeal Batchelder asserts the statute is an unconstitutional denial of equal protection. She also asserts that her compliance with the statute was excused.

Batchelder's primary contention is that the notice statute is an unconstitutional violation of the protections afforded by the equal protection clause of the Fourteenth Amendment and Art. 1, § 23 of the Indiana Constitution. It is asserted that the statute imposes an unreasonably short statute of limitations upon the class of plaintiffs who wish to sue municipal, as opposed to private, tortfeasors.

It is true that some jurisdictions have found that similar provisions deny equal protection where the purpose of the statute containing the notice provision was to abrogate governmental immunity. See, Reich v. State Highway Dept. (1972), 386 Mich. 617, 194 N.W.2d 700; Turner v. Staggs (1973 Nev.), 510 P.2d 879.

In the absence of such a construction, other jurisdictions have found such provisions valid. Thus, the California court in Roberts v. State (1974), 39 Cal.App.3d 844, 114 Cal.Rptr. [167 Ind.App. 84] 518, rejected the Reich rationale because they determined the legislative purpose to be other than an intention to put governmental and private tortfeasors on the same footing. See also, Lunday v. Vogelmann (1973 Iowa), 213 N.W.2d 904; Housewright v. City of La Harpe (1972), 51 Ill.2d 357, 282 N.E.2d 437; McCann v. City of Lake Wales (1962 Fla.), 144 So.2d 505.

Prior Indiana cases have stated that the statute in question does not establish a condition precedent to liability of a municipality, nor is it properly a statute of limitations. Instead it establishes a procedural step necessary to the remedy of bringing an action. Its purpose is to enable the City to make a prompt investigation as to its liability. Aaron v. City of Tipton (1941), 218 Ind. 227, 32 N.E.2d 88; City of Logansport v. Gammill (1957), 128 Ind.App. 53, 145 N.E.2d 908.

Following these interpretations of the purpose of the Indiana statute, the First District recently held the notice of claim statute applicable to counties. IC 1971, 17--2--1--1 (Burns Code Ed.), constitutional in the face of an equal protection claim. Foster v. Co. Commr's (1975), Ind.App., 325 N.E.2d 223.

Furthermore, in Thompson v. City of Aurora (1975), Ind., 325 N.E.2d 839, our Supreme Court applied the statute before us and underscored its notice purposes. ²

Accordingly, it appears that our statute establishes governmental tortfeasors as a classification entitled to notice to permit prompt investigation of claims. Governmental units are different from private tortfeasors. There are basic differences in the manner and responsibility of passing on claims and the sources...