Fowler v. Brewer

• Decision Date: 20 August 2002
• Docket Number: No. 73A01-0201-CV-36.,73A01-0201-CV-36.
• Citation: 773 N.E.2d 858
• Parties: Kimberly FOWLER and Timothy Fowler, Appellants-Plaintiffs, v. Craig A. BREWER, Appellee-Defendant.
• Court: Indiana Appellate Court

773 N.E.2d 858

Kimberly FOWLER and Timothy Fowler, Appellants-Plaintiffs, v. Craig A. BREWER, Appellee-Defendant.

No. 73A01-0201-CV-36.

Court of Appeals of Indiana.

August 20, 2002.

Randall L. Juergensen, Matthew C. Boulton, Keller & Keller, Indianapolis, IN, Attorneys for Appellants.

Richard M. Giesel, Gaston Cavanaugh & Giesel, Indianapolis, IN, Attorney for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Plaintiffs, Kimberly and Timothy Fowler, (Kimberly and Timothy individually, and the Fowlers collectively), appeal the trial court's denial of their motion for summary judgment and the granting of final judgment in favor of Appellee Defendant, Craig A. Brewer (Brewer).

We affirm.

ISSUES

The Fowlers raise two (2) issues on appeal, which we restate as follows:

1. Whether the trial court acted within its discretion when it granted Brewer leave to amend his answer to add non-compliance with the notice requirements of the Indiana Tort Claims Act (ITCA) as an affirmative defense.

2. Whether the trial court erred in granting summary judgment in favor of Brewer by determining that the Fowlers failed to comply with the notice provisions of the ITCA.

FACTS AND PROCEDURAL HISTORY

On March 29, 1999, at approximately 8:55 p.m., Timothy was operating a 1995 Dodge Neon eastbound on U.S. 52 in Morristown, Indiana. Kimberly was a passenger in the Dodge Neon on this date. At the same time, Brewer was operating a 1990 Chevrolet vehicle northbound on County Road 500 East in Morristown, Indiana.

As the Fowlers' car proceeded through the intersection of U.S. 52 and C.R. 500 E, Brewer attempted to stop but failed to yield the right-of-way. As a result, Brewer ran the posted stop sign and collided with the Fowlers' Dodge Neon. Brewer testified that no damage was done to his vehicle and that the Fowlers' car "glanced across the front" of his vehicle. (Appellant's App. p. 70). Brewer paid a fine for failing to yield the right-of-way.

Brewer's vehicle was equipped with a blue flashing light on the top of his vehicle that all volunteer firefighters are required to use when responding to an emergency call. Brewer's blue light was activated and operating as he drove on C.R. 500 E. The Fowlers admitted that they both saw the blue flashing lights. At the accident scene, Brewer told Timothy that he was responding to a fire in Freeport, Indiana in order to turn off the gas. However, the accident report fails to state that Brewer was acting in his capacity as a volunteer firefighter at the time of this accident. Kimberly sustained several injuries as a result of the collision.

The vehicle operated by Brewer at the time of the accident was registered to and insured through his employer, J.R. Wortman Co., Inc. (Wortman). The vehicle was insured under an insurance policy issued by the Cincinnati Insurance Company.

On April 2, 1999, the Fowlers notified the Cincinnati Insurance Company of their intent to pursue a claim for personal injuries relating to the March 29, 1999 accident. Between April 2, 1999, and February 10, 2000, the Fowlers and Cincinnati Insurance Company representatives attempted to negotiate a mutually agreeable resolution, but were unsuccessful.

On February 10, 2000, the Fowlers filed their Complaint for Damages with Jury Demand against Brewer and Wortman. On April 5, 2000, Brewer and Wortman jointly filed Answers to the Plaintiffs' Complaint for Damages and Request for Jury Trial.

On June 27, 2000, Brewer served the Fowlers with Defendant's, Craig A. Brewer, Answers to [P]laintiffs' First Set of Interrogatories. In response to Interrogatory Number 7, Brewer stated, "I left my home at approximately 8:40 p.m. to respond to a fire emergency call in my capacity as a volunteer firefighter with the Manilla Fire Department...." (Appellant's App. p. 113).

On February 21, 2001, Brewer filed his Motion to Amend Responsive Pleadings by Interlineation seeking to add an affirmative defense that "Plaintiffs' claim is barred due to plaintiffs' failure to file a Tort Claim Notice pursuant to Ind.Code § 34-13-3-1, et. seq." (Appellant's App. p. 19). On February 22, 2001, the Fowlers filed their Objection to Motion to Amend Responsive Pleading by Interlineation. The Fowlers also filed a Brief in Opposition to Defendant Craig A. Brewer's Motion to Add Affirmative Defense on March 29, 2001. Brewer filed his Response to Plaintiffs' Objection to Defendant Craig Brewer's Amending Answer to Add Affirmative Defense on April 25, 2001.

On April 26, 2001, a hearing was held on the above motions. On May 24, 2001, the trial court ordered final judgment for Wortman and against the Fowlers. The trial court also granted Brewer's Motion to Amend Responsive Pleadings by Interlineation. On August 15, 2001, Brewer filed his Amended Answer to Plaintiffs' Complaint for Damages and Request for Jury Trial.

On May 29, 2001, the Fowlers filed a Motion for Summary Judgment based on the notice requirement of the ITCA. On June 25, 2001, the Fowlers filed their Brief in Support of Plaintiffs' Motion for Summary Judgment on the Issue of Notice claiming that there was no genuine issue of material fact because they substantially complied with the notice requirement of the ITCA. They also filed Plaintiffs' Designation of Evidence on this date. On September 5, 2001, Brewer filed his Objection to Plaintiffs' Motion for Summary Judgment on the Issue of Notice and his Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment on the Issue of Notice. On September 6, 2001, a hearing was held on the motion for summary judgment. On October 2, 2001, the trial court entered its order denying the Fowlers' Motion for Summary Judgment. The order stated, in pertinent part, as follows:

Pursuant to T.R. 56(B), the Court finds that there exists no genuine issue of material fact on the question of notice and that [Brewer] is entitled to judgment as a matter of law [ ]. Therefore, the Court grants judgment for [Brewer] and against [the Fowlers] on the issue of notice required by the [ITCA]. .... There being no just reason for delay, final judgment is entered for [Brewer] and against [the Fowlers] on the issue of notice by the [ITCA].

(Appellant's App. p. 10).

On October 22, 2001, the Fowlers filed their Motion to Correct Errors. On November 13, 2001, Brewer filed his Objection to Plaintiffs' Motion to Correct Errors. On November 29, 2001, the trial court conducted a hearing on the motion. On January 2, 2002, the trial court denied the Fowlers' Motion to Correct Errors.

The Fowlers now appeal.

DISCUSSION AND DECISION

I. Summary Judgment

In Brunton v. Porter Memorial Hosp. Ambulance Service, 647 N.E.2d 636, 638-39 (Ind.Ct.App.1994), this court held:

The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Ind.Trial Rule 56(C); Fawley v. Martin's Supermarkets, Inc. (1993), Ind. App., 618 N.E.2d 10, 12, trans. denied. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact. T.R. 56(C); Campbell v. Criterion Group (1993), Ind.App., 613 N.E.2d 423, 428, on reh'g 621 N.E.2d 342. Once the moving party makes a prima facie showing of the non-existence of a genuine issue of material fact, the burden shifts to the non-moving party to set forth specific facts showing the existence of a genuine issue for trial. T.R. 56(E); Campbell, 613 N.E.2d at 428. Summary judgment will be affirmed on appeal if it is sustainable on any theory or basis found in the evidentiary matter designated to the trial court. Fawley, 618 N.E.2d at 12.

On appeal, we are normally bound by the same standard as the trial court and we must consider all matters which were designated at the summary judgment stage in the light most favorable to the non-moving party. T.R. 56(C); Campbell, 613 N.E.2d at 428. However, the question of compliance with the ITCA is a "procedural precedent which the plaintiff must prove and which the trial court must determine prior to trial." Hupp v. Hill (1991), Ind.App., 576 N.E.2d 1320, 1323 (quoting Indiana Dep't of Highways v. Hughes (1991), Ind.App., 575 N.E.2d 676, 678; Indiana State Highway Commission v. Morris (1988), Ind., 528 N.E.2d 468, 471). Accordingly, a summary judgment based on the plaintiff's failure to comply with the notice provisions of the Act is "subject to review as [a] negative judgment[], which we will reverse only if contrary to law." Id. at 1323-1324.

II. The ITCA

At the outset, we note that the ITCA governs lawsuits against political subdivisions like the Manilla Fire Department and its employees. The ITCA requires early notice that a claim exists, and provides substantial immunity for conduct within the scope of the employees' employment. Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 452 (Ind.2000). The purpose of the ITCA is to ensure that public employees can exercise their independent judgment necessary to carry out their duties without threat of harassment by litigation or threats of litigation over decisions made within the scope of their employment. Id.

Ind.Code § 34-13-3-8, the ITCA notice requirement, provides:

(a) Except as provided in section 9 of this chapter, a claim against a political subdivision is barred unless notice is filed with:

(1) The governing body of that political subdivision; and

(2) The Indiana political subdivision risk management commission created under IC 27-1-29;

within one hundred eighty (180) days after the loss occurs.

(b) A claim against a political subdivision is not barred for failure to file notice with the Indiana political subdivision risk management commission created under IC XX-X-XX-X if the political subdivision was not a member of the political subdivision risk management fund established under IC XX-X-XX-XX at the time the act or omission took place.

A. Amended Answer

The Fowlers claim that the trial court erred...