Delaware County v. Powell

Decision Date05 November 1979
Docket NumberNo. 1179S304,1179S304
Citation393 N.E.2d 190,272 Ind. 82
PartiesDELAWARE 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.
CourtIndiana Supreme Court

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 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 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.

The authorities in this area have been discussed by the parties and the Court of Appeals. In Geyer v. Logansport, (1977) Ind., 370 N.E.2d 333, the Supreme Court reversed the Court of Appeals and stated the purpose of the notice statute was to inform city officials of the accident and circumstances so possible liability could be determined and a defense could be prepared. The affirmative duty the language of the statute placed upon the plaintiff to deliver a writing describing the claim to the city was noted.

In City of Fort Wayne v. Cameron, (1977) Ind., 370 N.E.2d 338, it was held that if a party is physically and mentally incapacitated to the extent he could not comply with the provisions of the notice statute, he would have a reasonable time to file the notice after the disability was removed.

From Geyer, supra, and Cameron, supra, it is clear that mere actual knowledge of the occurrence or routine investigation of it is not sufficient to constitute substantial compliance with the statute. However, it is equally clear from these cases that the notice requirement can be waived or substantial compliance may be proved. Failure to raise the defense of non-compliance with the statute can also waive the notice requirement. Thompson v. City of Aurora, (1975) 263 Ind. 187, 325 N.E.2d 839, 842-43. Thus, acts or conduct of the defendant can waive the notice requirement.

Although the specifics of the purposes of the notice statute have been elaborated upon in the previous cases, Justice Hunter stated the larger consideration underlying allowing proof of substantial compliance in Galbreath v. City of Indianapolis, (1970) 253 Ind. 427, 255 N.E.2d 225. Galbreath has been cited may...

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    • United States
    • Indiana Appellate Court
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    ... ... 650 N.E.2d 1142 ... J.A.W., Appellant-Plaintiff, ... STATE of Indiana, Marion County Department of Public ... Welfare, Marion County Probation Department, Indianapolis ... Public ... 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 ... ...
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