Coghill v. Badger
| Decision Date | 13 April 1981 |
| Docket Number | No. 2-379A51,2-379A51 |
| Citation | 418 N.E.2d 1201 |
| Parties | Alma Jean COGHILL, Appellant (Plaintiff Below), v. Kenneth N. BADGER and the Indianapolis Public Transportation Corporation, Appellees (Defendants Below). |
| Court | Indiana Appellate Court |
Charles W. Runnels, Runnels, Pontius, Redstone & Ursulskis, John M. Choplin, II, Norris, Choplin & Johnson, Indianapolis, for appellant.
William K. Byrum, A. David Stippler, Daniel J. Fairley, Byrum, Gagnon, Diehl & Stippler, Indianapolis, for appellees.
Plaintiff-appellant Alma Jean Coghill (Coghill) appeals from the trial court's grant of summary judgment in favor of defendants-appellees Kenneth N. Badger (Badger) and The Indianapolis Public Transportation Corporation (IPTC), which judgment barred Coghill's tort action, claiming (1) that the trial court erred in granting summary judgment in favor of IPTC because there were genuine issues as to the material facts of substantial compliance with the applicable notice statute, extension of the period for filing notice, and waiver of or estoppel to raise non-compliance with the notice statute; and (2) that even if summary judgment in favor of IPTC was proper, summary judgment barring Coghill's claim against Badger was improper because it was based upon an incorrect application of Ind. Code § 34-4-16.5-5(a), 1 which bars an action against a governmental employee if judgment has been rendered with respect to the governmental entity employing him.
We affirm.
The record discloses that on September 23, 1976, Coghill sustained injuries when the METRO bus in which she was a passenger On October 5, 1976, Coghill's attorney, Charles W. Runnels (Runnels), telephoned Eugene Scott (Scott), a claims adjuster for IPTC. Runnels' affidavit alleges that during the conversation, Runnels indicated that he represented Coghill in her claim against METRO, "reference being made to the date, time, place, conditions, and cause of the accident involved, and as much information as was available regarding the nature and extent of plaintiff's injuries." On the same day, Runnels sent the following letter to Scott:
struck the rear of another vehicle. Badger was driving the bus at the time of the collision, which occurred on White River Parkway in Indianapolis. Two or three days later, IPTC sent a representative to Coghill's home to investigate the incident.
Mr. Eugene Scott
Claims Department
Indianapolis Public Transportation Corp.
P. O. Box 2383
Indianapolis, Indiana 46206
Re: Accident: 9-23-76
Re: My Client: Jean Coghill
Dear Mr. Scott:
This will confirm our telephone conversation with your office on October 5 at which time we advised that we represent Jean Coghill in her claim for injuries resulting from the accident indicated. Please acknowledge this representation in writing.
Very truly yours,
/s/
In a writing dated October 7, 1976, Scott acknowledged receipt of Runnels' letter of representation, and invited Runnels to contact Scott when Runnels wished to discuss the case.
On September 18, 1978, Runnels forwarded Coghill's medical reports and bills to Scott along with a copy of Coghill's intended complaint. An enclosed letter proposed that Scott call Runnels to discuss settlement. Runnels' affidavit alleges that Scott telephoned Runnels on September 21, 1978, and that the two talked over the damages aspect of the case.
On October 21, 1978, Coghill filed her complaint for damages against Badger, IPTC, and the City of Indianapolis. 2 On October 24, 1978, Badger and IPTC filed their motion for summary judgment, in which they asserted Coghill's failure to comply with the notice-of-claim requirements of Ind. Code §§ 34-4-16.5-7, -9, and -11. The trial court granted defendants' motion for summary judgment on December 18, 1978.
Coghill raises two issues:
ISSUE ONE Was summary judgment in favor of IPTC precluded by the existence of genuine issues with respect to the following material facts:
(a) Whether Coghill substantially complied with the notice requirements of Ind. Code §§ 34-4-16.5-7, -9, and -11;
(b) Whether IPTC's actions created an extension of the period for filing notice;
(c) Whether IPTC's actions amounted to a waiver of the notice requirements; and
(d) Whether IPTC's conduct created an estoppel to assert failure to comply with the notice requirements?
ISSUE TWO Was the trial court's entry of summary judgment barring Coghill's claim against Badger improper because it was predicated upon an incorrect application of Ind. Code § 34-4-16.5-5(a)?
ISSUE ONE Was summary judgment in favor of IPTC precluded by the existence of genuine issues with respect to the following material facts:
(a) Whether Coghill substantially complied with the notice requirements of Ind. Code §§ 34-4-16.5-7, -9, and -11;
(b) Whether IPTC's actions created an extension of the period for filing notice;
(c) Whether IPTC's actions amounted to a waiver of the notice requirements; and
(d) Whether IPTC's conduct created an estoppel to assert failure to comply with the notice requirements?
PARTIES' CONTENTIONS Coghill contends that certain oral and written communication between her attorney and the IPTC claims adjuster, coupled with IPTC's independent investigation of the incident, establish substantial compliance with the notice statute. Alternatively, she claims that the communication and investigation amount to an extension or waiver of, or an estoppel to assert non-compliance with, the notice requirements of Ind. Code § 34-4-16.5-7.
Badger and IPTC respond that IPTC's routine post-collision investigation was insufficient as a matter of law to establish substantial compliance, extension, waiver, or estoppel. Furthermore, they contend that the oral and written communication fails to show substantial compliance, extension, waiver, or estoppel because it does not satisfy the essential purpose of the notice statute, namely, to advise the governmental unit of the accident and surrounding circumstances.
CONCLUSION The trial court properly entered summary judgment in favor of IPTC.
On appeal from a grant of summary judgment, we are required to determine if there is a genuine issue of material fact and if the trial court correctly applied the law. Brandon v. State (1976), 264 Ind. 177, 340 N.E.2d 756. See also Boswell v. Lyon (1980), Ind.App., 401 N.E.2d 735; Richards v. Goerg Boat & Motors, Inc. (1979), Ind.App., 384 N.E.2d 1084. This we proceed to do.
The notice statute at issue, Ind. Code § 34-4-16.5-7 states:
Galbreath v. City of Indianapolis (1970), 253 Ind. 472, 477, 255 N.E.2d 225, 228 (quoting Aaron v. City of Tipton (1941), 218 Ind. 227, 230-31, 32 N.E.2d 88, 89). Accord, Delaware County v. Powell (1979), Ind., 393 N.E.2d 190; City of Indianapolis v. Satz (1978), 268 Ind. 581, 377 N.E.2d 623; Geyer v. City of Logansport (1977), 267 Ind. 334, 370 N.E.2d 333.
In Geyer, supra, our supreme court declared that in view of its underlying purpose, the notice statute "places an affirmative duty upon the plaintiff to deliver a writing to the (governmental unit) manifesting the nature of the claim." 267 Ind. at 338, 370 N.E.2d at 336. See also Powell, supra. On several occasions, it has indicated that a potential claimant can satisfy the statutory mandate through "substantial compliance" with the notice requirements. See, e.g., Powell, supra; Satz, supra; Geyer, supra; City of Fort Wayne v. Cameron (1977), 267 Ind. 329, 370 N.E.2d 338; Galbreath, supra.
Coghill seeks to show substantial compliance with the notice requirements by Runnels' October 24, 1976 letter to Scott; she seems to argue that Runnels' letter incorporated by reference the substance of Runnels' earlier phone conversation with Scott, in which Runnels allegedly referred to "the date, time, place, conditions, and cause of the accident involved, and as much information as was available regarding the nature and extent of plaintiff's injuries." Coghill says that the letter, coupled with Scott's confirmatory memo and IPTC's independent investigation of the incident, amounted to substantial compliance with these statutes.
Coghill's contention that the post-collision interview between IPTC's representative and Coghill established substantial compliance is without merit. Our supreme court has declared that independently acquired knowledge or routine investigation of the occurrence by the governmental body is insufficient to show substantial compliance with the notice statute. Powell, supra; Satz, supra; Geyer, supra; Cameron, supra; Batchelder v....
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