Greater Hammond Community Service v. Mutka
| Decision Date | 23 September 1998 |
| Docket Number | No. 45A03-9706-CV-203,45A03-9706-CV-203 |
| Citation | 699 N.E.2d 757 |
| Parties | GREATER HAMMOND COMMUNITY SERVICE, Appellant-Defendant, v. Lucile MUTKA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
In this tort action brought by Lucile Mutka, Greater Hammond Community Service, Inc. ("GHCS") appeals from a final judgment of $700,000 entered in favor of Mutka wherein the parties stipulated that Greater Hammond Community Service could seek review of the trial court's determination that it was not a governmental entity entitled to protection under the Indiana Tort Claims Act. 1
We affirm.
I. Whether GHCS is a governmental entity entitled to the liability cap of $300,000 under the Indiana Tort Claims Act.
II. Whether the trial court committed reversible error in denying GHCS an opportunity to supplement its argument on the cross-motions for summary judgment while subsequently allowing Mutka to supplement her argument.
III. Whether the trial court erred by striking certain rhetorical paragraphs of affidavits designated by GHCS.
IV. Whether genuine issues of fact exist for precluding the summary judgment in favor of Mutka.
In 1975, a small group of Hammond residents founded and incorporated Hammond Opportunity Center, Inc., as a not-for-profit corporation in Indiana. In 1976, the board of directors for Hammond Opportunity Center amended its articles of incorporation so that it would qualify for federal tax exemption status. The board amended its articles of incorporation again in 1979, changing its name to Greater Hammond Community Services, Inc.
In February 1994, GHCS entered into a contract with the Lake County Equal Opportunity Council, Inc. ("LCEOC"), a community action agency under the Indiana Tort Claims Act, to provide certain services to the low income, elderly and physically impaired residents in the Hammond area. 2 These services provided by GHCS included providing a transportation service for the elderly.
On October 19, 1994, Lucile Mutka, an 86-year-old widow, was a passenger on a bus driven by Gleason King, an employee of GHCS, when the bus collided with another vehicle. King, who was operating the bus within the scope of his employment at GHCS, failed to stop for a red traffic signal. Mutka sustained personal injuries and incurred significant medical expenses. LCEOC leased the bus from the Northern Indiana Regional Planning Commission ("NIRPC") at a nominal fee.
On February 16, 1995, Lucile Mutka filed a complaint for damages against LCEOC, GHCS, NIRPC, and King. The parties stipulated that LCEOC and NIRPC were community action agencies under the Indiana Tort Claims Act ("ITCA"). LCEOC, GHCS, NIRPC and King filed a motion for partial summary judgment, seeking a determination that all of the named defendants were governmental entities and that the aggregate liability of the defendants for Mutka's alleged injuries could not exceed the liability cap of $300,000 pursuant to ITCA. Specifically, GHCS argued that it was a political subdivision entitled to the liability cap because it fell within the definition of a community action agency under Ind.Code § 12-14-23-2. Alternatively, GHCS argued that it was a division of LCEOC, which is a community action agency under Indiana law, and therefore entitled to protection under the liability cap of the ITCA. In response, Mutka filed her own motion for partial summary judgment requesting a determination by the court that the liability cap under the ITCA did not apply to GHCS because GHCS was not a community action agency or any other governmental entity.
On September 4, 1996, the trial court held a hearing on the cross motions for partial summary judgment. After a hearing, Mutka filed a supplemental argument in support of her partial summary judgment motion. On September 16, 1996, the defendants objected and filed a motion to strike Mutka's supplemental argument. Without ruling on the motion to strike, the trial court entered an order providing in pertinent part as follows:
It is undisputed that [GHCS] is an independent legal entity, with separate articles of incorporation and bylaws. No records have been presented to the Court to demonstrate that [GHCS] is a division of [LCEOC]. [GHCS] elected the separate corporate form. There is no evidence that [GHCS] was designated as a community action agency by the Governor of the State of Indiana.
IT IS NOW THEREFORE ORDERED that the Motion for Partial Summary Judgment filed by [Mutka] as to [GHCS] is hereby GRANTED. And the Court hereby holds that the Indiana Tort Claims Statute, IC 34-4-16.5-1 et seq. does not apply to [GHCS].
(R. 225-26).
The trial court subsequently entered an agreed final judgment wherein GHCS conceded liability to Mutka in the amount of $700,000. The final judgment also specifically provided that the agreed judgment was entered with the understanding that GHCS could pursue an appeal of the trial court's order granting partial summary judgment in favor Mutka. The trial court dismissed the remaining defendants with prejudice. Additional facts will be supplied as necessary.
Under the ITCA, the amount of damages that may be assessed in tort against a governmental entity is limited as follows:
The combined aggregate liability of all governmental entities and of all public employees ... does not exceed three hundred thousand dollars ($300,000) for injury to or death of one (1) person in any one (1) occurrence and does not exceed five million dollars ($5,000,000) for injury to or death of all persons in that occurrence.
Ind.Code § 34-4-16.5-4. A "governmental entity" is the state or a political subdivision of the state. Ind.Code § 34-4-16.5-2(c). For purposes of the ITCA, a community action agency as defined by Ind.Code § 12-14-23-2 is deemed a political subdivision. Ind.Code § 34-4-16.5-20. I.C. § 12-14-23-2 provides that a community action agency is an entity that meets the following conditions:
(1) Is any of the following:
(A) A political subdivision of the state.
(B) A combination of political subdivisions.
(C) An agency of a political subdivision.
(D) A private nonprofit agency.
(2) Has the authority under state or federal law to receive money to support the community action programs described in section 3 and 4 of this chapter.
(3) Is designated as a community action agency by the governor or by federal law.
The issue of whether an entity is a governmental entity and therefore entitled to protection of the liability cap under the ITCA is a question of law for the court, not jury. See Indiana State Highway Comm'n v. Morris, 528 N.E.2d 468, 471 (Ind.1988) (); see also State v. Bouras, 423 N.E.2d 741, 744 (Ind.Ct.App.1981). 3
On appeal, GHCS concedes that it has never been designated as a community action agency by the governor of this state or by federal law; therefore, it is not a community action agency as defined by I.C. § 12-14-23-2. GHCS argues, however, that as a private not-for-profit corporation providing essential government services, it is an instrumentality of the state entitled to the protection of the liability cap for governmental entities under the ITCA. As authority, GHCS relies upon Ayres v. Indian Heights Volunteer Fire Department, 493 N.E.2d 1229 (Ind.1986).
In Ayres, our supreme court addressed the issue of whether a volunteer fire department was entitled to the immunity afforded by the ITCA. The court stated that "[w]hen private individuals or groups are endowed by the state with powers or functions governmental in nature, they become agencies or instrumentalities of the state affecting governmental agencies and corporations." Id. at 1235 (quoting Evans, et al. v. Newton, et al., 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966)). The court then stated that firefighting is a service that is "uniquely governmental," noting that the "need to control, prevent, and fight fires for the common good of the community has been universally accepted as a governmental function and duty in this State" and that it did not "know of the existence in Indiana of any private enterprise in the business of fighting fires." Id. at 1235. Then, relying largely on the comprehensive statutory scheme that creates volunteer fire departments and defines their relationships to municipalities they serve, the court found that the volunteer fire department was "an instrumentality of local government and was protected by the Indiana Tort Claims Act." Id. at 1237.
Ayres is readily distinguishable from the present case. First, unlike the volunteer fire department in Ayres, the record reveals that GHCS is not a statutory creation, but simply a private not-for-profit corporation established by a small group of Hammond residents independent of any governmental entity. Second, GHCS, unlike the volunteer fire department in Ayres, does not offer a service uniquely governmental in nature. Although GHCS argues that it exists for the purpose of putting out " 'social' fires that arise through poverty, disparate economic resources and poor education," Appellant's Brief, p. 13, the designated evidence in this case merely reveals that GHCS contracted with LCEOC to provide transportation services for the elderly. Since many private not-for-profit organizations can and do provide these type of transportation services, we cannot say that GHCS provides services that are uniquely governmental in nature and universally accepted as an essential governmental function. Therefore, GHCS, unlike the fire...
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GREATER HAMMOND COMMUNITY SERV., INC. v. Mutka
...Indiana Court of Appeals upheld the trial court's determination that GHCS was not a governmental entity. Greater Hammond Community Serv. v. Mutka, 699 N.E.2d 757 (Ind.Ct. App.1998). On the same day, another panel decided LCEOC, Inc. v. Greer, 699 N.E.2d 763 (Ind.Ct.App.1998) (Greer), holdin......
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LCEOC, INC. v. Greer, 45S03-9904-CV-223.
...699 N.E.2d 763 (Ind.Ct.App.1998). On the same day a different panel of the Court of Appeals decided Greater Hammond Community Serv. v. Mutka, 699 N.E.2d 757 (Ind.Ct.App.1998) (Mutka), which held that GHCS was not a governmental entity. We accepted transfer to resolve the Discussion The Indi......