Delaware County v. Powell, No. 1179S304

Docket NºNo. 1179S304
Citation393 N.E.2d 190, 272 Ind. 82
Case DateNovember 05, 1979
CourtSupreme Court of Indiana

Page 190

393 N.E.2d 190
272 Ind. 82
DELAWARE COUNTY Indiana, Board of Commissioners of the
County of Delaware, James A. Bartlett, Delaware
County Highway Department, and Does I
through X, Inclusive, Appellants,
v.
Deloris J. POWELL, Appellee.
No. 1179S304.
Supreme Court of Indiana.
Nov. 5, 1979.

David S. Wallace, Warner, Peckinpaugh & Wallace, Muncie, Thomas A. Cannon, Cannon & Bruns, Muncie, for appellants.

P. Gregory Cross and Perry W. Cross, Dennis, Cross, Raisor, Jordan & Marshall, Muncie, for appellee.

Howard S. Young, Jr., Young & Young, Indianapolis, amicus curiae for appellee.

ON PETITION TO TRANSFER

PIVARNIK, Justice.

This cause comes to us on petition to transfer. The Court of Appeals held that the trial court erred in denying a motion for summary judgment made by the county and that the summary judgment to which the county is entitled bars any further action against the employee involved, James Bartlett, under Ind.Code § 34-4-16.5-5a (Burns 1976). Delaware County v. Powell, (1978) Ind.App., 382 N.E.2d 958.

In summary, the facts are that on September 5, 1974, Deloris Powell, a passenger in a car struck by a Delaware County Highway truck, was severely injured. The county's insurance carrier contacted Powell and made payments to her totalling approximately.$19,000. Powell claims the insurance company admitted the county's liability and stated that [272 Ind. 83] they would take care of everything. The insurance company's representative denied he made admissions of liability. After Powell, a California resident, returned to California, the local agent of Delaware County's carrier informed Powell in June of 1976 that she should make final settlement because of the two-year statute of limitations. Powell consulted

Page 191

an attorney and at this point, one and one-half years after the accident, filed a written notice of claim with the County Commissioners. They rejected the claim because it exceeded the 180-day statutory limit for the filing of notice. Ind.Code § 34-4-16.5-7 (Burns 1976).

On August 15, 1976, Powell sued the Commissioners, the truck driver, and other county employees. Defendants filed a motion for summary judgment which was overruled and denied by the trial court in an order issued April 21, 1978. Defendants appealed this ruling of the trial court in an interlocutory appeal to the Court of Appeals. It is from the decision of that court holding that the trial court erred in denying summary judgment that this transfer arises. The Court of Appeals decision was based on their conclusion that the notice requirement is a procedural precedent and that "a procedural precedent, once properly placed in issue, cannot be subject to estoppel or waived as a result of prior actions of the defendant or its agents." Id. at 962.

We disagree and grant transfer.

It is clear that the procedure for filing a notice of claim within the 180 day limit was not followed. The issues we are concerned with are whether a claim of waiver of the notice requirement or estoppel, or a claim of substantial compliance with the notice requirement can be made under the facts and circumstances of this case.

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40 practice notes
  • Turner v. Sheriff of Marion County, No. IP97-2013-C-F/D.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 1, 2000
    ...any motion. Defendants can waive the Act's notice requirements by failing to raise the issue of noncompliance. Delaware County v. Powell, 272 Ind. 82, 84, 393 N.E.2d 190, 191 (Ind.1979) ("Failure to raise the defense of non-compliance with the statute can also waive the notice requirement")......
  • J.A.W. v. State, No. 32A01-9212-CV-415
    • United States
    • Indiana Court of Appeals of Indiana
    • May 15, 1995
    ...have repeatedly so held. Indiana State Highway Comm'n v. Morris (1988), Ind., 528 N.E.2d 468, 471 citing Delaware County v. Powell (1979), 272 Ind. 82, 84, 393 N.E.2d 190, 191; Parke County v. Ropak, Inc. (1988), Ind.App., 526 N.E.2d 732, 737, trans. denied; Governmental Interinsurance Exch......
  • Coghill v. Badger, No. 2-379A51
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1981
    ...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 In Geyer, sup......
  • Board of Com'rs of Cass County v. Nevitt, No. 4-782A221
    • United States
    • Indiana Court of Appeals of Indiana
    • May 9, 1983
    ...(1981) Ind.App., 418 N.E.2d 1201; Delaware County v. Powell, (1978) Ind.App., 382 N.E.2d 958, vacated on other grounds, (1979) Ind., 393 N.E.2d 190. These cases show that, when both a governmental entity and its employee are sued, a summary judgment for the governmental entity is a "judgmen......
  • Request a trial to view additional results
40 cases
  • Turner v. Sheriff of Marion County, No. IP97-2013-C-F/D.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 1, 2000
    ...any motion. Defendants can waive the Act's notice requirements by failing to raise the issue of noncompliance. Delaware County v. Powell, 272 Ind. 82, 84, 393 N.E.2d 190, 191 (Ind.1979) ("Failure to raise the defense of non-compliance with the statute can also waive the notice requirement")......
  • J.A.W. v. State, No. 32A01-9212-CV-415
    • United States
    • Indiana Court of Appeals of Indiana
    • May 15, 1995
    ...have repeatedly so held. Indiana State Highway Comm'n v. Morris (1988), Ind., 528 N.E.2d 468, 471 citing Delaware County v. Powell (1979), 272 Ind. 82, 84, 393 N.E.2d 190, 191; Parke County v. Ropak, Inc. (1988), Ind.App., 526 N.E.2d 732, 737, trans. denied; Governmental Interinsurance Exch......
  • Coghill v. Badger, No. 2-379A51
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1981
    ...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 In Geyer, sup......
  • Board of Com'rs of Cass County v. Nevitt, No. 4-782A221
    • United States
    • Indiana Court of Appeals of Indiana
    • May 9, 1983
    ...(1981) Ind.App., 418 N.E.2d 1201; Delaware County v. Powell, (1978) Ind.App., 382 N.E.2d 958, vacated on other grounds, (1979) Ind., 393 N.E.2d 190. These cases show that, when both a governmental entity and its employee are sued, a summary judgment for the governmental entity is a "judgmen......
  • Request a trial to view additional results

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