Galovick v. State, Bd. of Com'rs of Montgomery County
Decision Date | 20 July 1982 |
Docket Number | No. 1-981A289,1-981A289 |
Citation | 437 N.E.2d 505 |
Parties | Marko GALOVICK, Plaintiff-Appellant, v. STATE of Indiana, BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY, Montgomery County, Bob Clements, Individually and d/b/a Clements Canoe Rental and Sales, and Marge Clements, Individually and d/b/a Clements Canoe Rental and Sales, Defendants-Appellees. |
Court | Indiana Appellate Court |
John A. Perrin, Auberry, Stanek & Perrin, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Thomas Ralph Hamill, G. Richard Potter, Robert S. Spear, Deputy Attys. Gen., Indianapolis, for State of Ind.
Plaintiff-appellant Marko Galovick (Marko) appeals the granting of summary judgment entered in the Montgomery Circuit Court in favor of the State of Indiana (State) upon Marko's failure to comply with the notice requirements under Indiana's Tort Claims Act (Act), Ind. Code 34-4-16.5-6.
We affirm.
Following an injury from a swimming accident which occurred on July 26, 1978, Marko sent the Attorney General of Indiana a notice of a claim for damages on January 18, 1979. The notice was filed within the statutorily required 180 day period from the date of the incident. Afterward, on July 25, 1980, Marko filed his complaint against the State 1; however, aside from notifying the Attorney General's office, he failed to serve notice of his claim upon a state agency within 180 days after the loss as required under Ind.Code 34-4-16.5-6. Thereafter, the State filed a motion for summary judgment which the trial court granted in the following order:
Marko presents as his sole issue for review:
Does a plaintiff's timely service through his Illinois attorney of a Notice of Claim against the State of Indiana on the Attorney General of Indiana constitute substantial compliance with the Notice of Claims requirement of the Tort Claims Act sufficient to permit maintenance of a subsequent action in tort against the State of Indiana?
Marko argues that his sending timely notice to the office of the Attorney General of his claim against the State showed a good faith effort to comply with the Act and substantial compliance with the notice requirements of the Act. Therefore, the State's motion for summary judgment should have been denied, citing Delaware County v. Powell, (1979) Ind., 393 N.E.2d 190; Geyer v. City of Logansport, (1977) 267 Ind. 334, 370 N.E.2d 333.
The standard of review of a summary judgment is the same as that of the trial court; summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Matter of Estate of Belanger, (1982) Ind.App., 433 N.E.2d 39. All facts alleged by the non-moving party are regarded as true and all doubts are resolved against the moving party. Belanger, supra.
Ind.Code 34-4-16.5-6 provides:
(Emphasis added.)
In Geyer, the Supreme Court reversed the Court of Appeals which had found that the defendant City's involvement with and investigation of the plaintiff's claim constituted substantial compliance with the requirements of the notice statute in an action against the city pursuant to Ind.Code 18-2-2-1. In reversing, the Supreme Court stated:
267 Ind. at 338-9, 370 N.E.2d 333.
In Powell, the Supreme Court examined the notice provisions of the Tort Claims Act in an action against a county under Ind.Code 34-4-16.5-7. There, the issue was 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...
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