Burks v. Bolerjack

• Decision Date: 10 November 1981
• Docket Number: No. 1181S318,1181S318
• Citation: 427 N.E.2d 887
• Parties: Willie BURKS, Appellant (Plaintiff below), v. Dean BOLERJACK, Sheriff, Office, St. Joseph County Sheriff, St. Joseph County, Indiana, Appellees (Defendants below).
• Court: Indiana Supreme Court

Page 887

427 N.E.2d 887

Willie BURKS, Appellant (Plaintiff below), v. Dean BOLERJACK, Sheriff, Office, St. Joseph County Sheriff,

St. Joseph County, Indiana, Appellees (Defendants below).

No. 1181S318.

Supreme Court of Indiana.

Nov. 10, 1981.

Robert L. Stephan, South Bend, for appellant.

Robert F. Gonderman, Steven L. Artusi, A. Howard Williams, Richard J. McDonald, Patrick, McDonald, Donnelly, Warter & Williams, South Bend, for appellees.

ON PETITION TO TRANSFER

HUNTER, Justice.

This cause is before us on the petition to transfer of defendant Dean Bolerjack, who seeks review of the Court of Appeals' decision found at Burks v. Bolerjack, (1980) Ind.App., 411 N.E.2d 148 (Staton, J., dissenting). We hereby grant Bolerjack's petition to transfer and vacate the Court of Appeals' opinion insofar as the single issue raised in the petition is concerned. That issue is:

Whether Ind. Code § 34-4-16.5-5(a) (Burns 1980 Supp.) bars an action against a governmental employee when judgment has been granted to the employing governmental entity on the basis of tort claims notice requirements.

Other questions decided by the Court of Appeals are not at issue on the petition before us. The Court of Appeals' resolution of those questions therefore remains in full force and effect; we express no opinion regarding the disposition of those matters. ¹

This action originated from the escape of four inmates at the St. Joseph County Jail on June 1, 1975. Willie Burks, the plaintiff herein, was employed as a guard at the time of the jailbreak. On June 13, 1975, he was charged with conspiring to aid the inmates in their escape; he was placed in jail for a period in excess of twenty-four hours until he was released on bond. At his trial in April of 1976, a mistrial was declared due to the jury's inability to reach a verdict. Ultimately, the criminal charge against Burks was dismissed upon motion of the prosecuting attorney.

Meanwhile, on October 12, 1976, Burks provided notice to the St. Joseph County Commissioners of his intention to sue the county for damages resulting from his arrest, incarceration, and prosecution. Named as defendants in the complaint ultimately filed were St. Joseph County and Bolerjack, who "was acting in his capacity as Sheriff ... and as agent for St. Joseph County." Among the tortious conduct ² alleged therein was a count for false imprisonment.

Defendants filed a motion to dismiss the cause based on the failure of Burks to provide notice of his intent to sue the county within 180 days of the alleged tortious conduct, as required by Ind. Code § 34-4-16.5-7 (Burns 1980 Supp.). The trial court sustained the defendants' motion.

Burks appealed. Our Third District Court of Appeals correctly noted that a claim for false arrest or imprisonment accrues upon the date of the arrest or imprisonment. Livingston v. Consol. City of Indianapolis, (1979) Ind.App., 398 N.E.2d 1302. On that basis, the Court of Appeals properly upheld the dismissal of Burks's claim against the county on the basis of his failure to give timely notice. The Court of Appeals reversed, however, the dismissal of Burks's false imprisonment claim against defendant Bolerjack; the Court concluded that an action against a governmental employee was not barred by Ind. Code § 34-4-16.5-5(a), supra, when judgment had been entered in favor of the employing governmental entity on the basis of noncompliance with Tort Claims Act notice requirements.

We note at this juncture that both the First and Second Districts of our Court of Appeals have confronted the precise question at bar and concluded that a suit against the governmental employee is barred by the statute. Delaware County v. Powell, (1978) Ind.App., 382 N.E.2d 958, rev'd on other grounds, (1979) Ind., 393 N.E.2d 190; Coghill v. Badger, (1981) Ind.App., 418 N.E.2d 1201 (petition for rehearing pending). ³

Subsection "a" of Ind. Code § 34-4-16.5-5, supra, the particular statutory provision at issue, reads in its entirety:

"(a) A judgment rendered with respect to or a settlement made by a governmental entity bars an action by the claimant against an employee whose conduct gave rise to the claim resulting in that judgment or settlement."

The language of the statute is plain and unambiguous. If a governmental employee's conduct gives rise to a claim in tort against the employing governmental entity, any "judgment" rendered with respect to the governmental entity, or any "settlement" which the governmental entity executes, bars an action against an employee.

Notwithstanding the lack of ambiguity in subsection "a," the Court of Appeals employed rules of statutory interpretation in reaching its conclusion. Burks v. Bolerjack, supra, at 148. The Court of Appeals' resort to statutory construction was not warranted, for as this Court stated in Indiana State Highway Commission v. White, (1973) 259 Ind. 690, 694, 291 N.E.2d 550, 553:

"When, as here, we are called upon to construe a statute, it must first be decided whether or not the above provisions are uncertain and ambiguous so as to warrant construction. Grody v. State (1972) 257 Ind. 651, 278 N.E.2d 280; Eads v. J. & J. Sales Corp. (1971) 257 Ind. 485, 275 N.E.2d 802; Reome v. Edwards (1948), 226 Ind. 229, 79 N.E.2d 389; Leach v. City of Evansville (1937), 211 Ind. 444, 7 N.E.2d 207."

Our adherence to the rule enunciated above has been painstaking. Whitacre v. State, (1980) Ind., 412 N.E.2d 1202; Grody v. State, (1972) 257 Ind. 651, 278 N.E.2d 280; Schwartzkopf v. State ex rel. Fettig, (1965) 246 Ind. 201, 204 N.E.2d 342; Reome v. Edwards, (1948) 226 Ind. 229, 79 N.E.2d 389; Sue Yee Lee v. Lafayette Home Hospital, Inc., (1980) Ind.App., 410 N.E.2d 1319.

The dismissal of Burks's suit against St. Joseph County was a "judgment" both final and appealable; it left nothing for resolution between the parties. Coghill v. Badger, supra; Thompson v. Thompson, (1972) 259 Ind. 266, 286 N.E.2d 657; Richards v. Crown Point Community School Corp., (1971) 256 Ind. 347, 269 N.E.2d 5; Seaney v. Ayres, (1958) 238 Ind. 493, 151 N.E.2d 295. Consequently, under the plain meaning of Ind. Code § 34-4-16.5-5(a), supra, the trial court acted properly in dismissing Burks's false imprisonment claim against Bolerjack.

We recognize merit in the analytical assessment of the Court of Appeals that a literal application of the terms of subsection "a" of Ind. Code § 34-4-16.5-5, supra, potentially engenders a certain inconsistency. As Judge Garrard explained:

"Finally, we note that while the plain language of section 5(a) could be applied to bar a claim against a governmental employee individually where a judgment had been entered in favor of the political subdivision on the grounds of failure to comply with the notice requirements, the section has no apparent application to circumstances where the employee is sued but no action was commenced against the governmental entity. That would result in an absurd consequence. A claimant who had failed to give notice could properly sue the employee individually, but only in the event he had not sued or joined the governmental entity as a defendant. The legislature is not presumed to intend such consequences." Burks v. Bolerjack, supra, at 151.

However that may be, it is not our prerogative to vary from the plain meaning of the unambiguous terms employed by the legislature. Indiana State Highway Commission v. White, supra. The language employed in a statute is deemed to have been used intentionally. Combs v. Cook, (1958) 238 Ind. 392, 151 N.E.2d 144; Doughty v. State Dept. of Public Welfare, (1954) 233 Ind. 213, 117 N.E.2d 651; Evansville-Vanderburgh C.D.H. v. Evansville P.C., (1975) 165 Ind.App. 437, 332 N.E.2d 829. If the legislature intends the term "judgment" to be interpreted contrary to its common meaning, it should clearly and concisely state that intent. Guardian Life Ins. Co. of America v. Barry, (1937) 213 Ind. 56, 10 N.E.2d 614; Hummer v. School City of Hartford City, (1953) 124 Ind.App. 30, 112 N.E.2d 891.

For the foregoing reasons, we hereby grant transfer, vacate the decision of the Court of Appeals, and affirm the judgment of the trial court.

Judgment affirmed.

GIVAN, C. J., and PIVARNIK, J., concur.

PRENTICE, J., concurs in result.

DeBRULER, J., dissents with opinion.

DeBRULER, Justice, dissenting.

Distinction is made in the Tort Claims Act between governmental entities and public employees. Claims against the State of Indiana, its agencies, and against political subdivisions are barred unless notice of them is given within one hundred eighty days after a loss occurs. Ind. Code §§ 34-4-16.5-6 and 34-4-16.5-7. However, the statute does not similarly bar claims against public employees for failure to give notice of them. The Act does, however, create a form of protection and assistance for public employees in the provision we are called upon to consider in this case. Those provisions state:

"(a) A judgment rendered with respect to or a settlement made by a governmental entity bars an action by the claimant against an employee whose conduct gave rise to the claim resulting in that judgment or settlement....