Indiana State Highway Com'n v. Morris

• Decision Date: 22 September 1988
• Docket Number: No. 41S01-8809-CV-833,41S01-8809-CV-833
• Citation: 528 N.E.2d 468
• Parties: INDIANA STATE HIGHWAY COMMISSION, Appellant (Defendant below), v. Bonnie C. MORRIS, Personal Representative of the Estate of Cindy J. Morris, Deceased, Sherri Norton and Kathy L. Morris, Appellees (Plaintiffs Below).
• Court: Indiana Supreme Court

Page 468

528 N.E.2d 468

INDIANA STATE HIGHWAY COMMISSION, Appellant (Defendant below), v. Bonnie C. MORRIS, Personal Representative of the Estate of Cindy J. Morris, Deceased, Sherri Norton and Kathy L. Morris, Appellees (Plaintiffs Below).

No. 41S01-8809-CV-833.

Supreme Court of Indiana.

Sept. 22, 1988.

Linley E. Pearson, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellant.

Peter Campbell King, Cline, King, King & David, Patrick W. Harrison, Beck & Harrison, Columbus, Tom G. Jones, Jones, Loveall, Johnson & Bailey, Franklin, for appellees.

ON CIVIL PETITION TO TRANSFER

DICKSON, Justice.

Two vehicles collided on a one-lane state highway bridge near Seymour, Indiana, resulting in the death of Cindy J. Morris and in injuries to passengers in both vehicles. Various subsequent damage suits were filed against the Indiana State Highway The issues raised by appellant Commission relate to the following general issues:

Commission (Commission) alleging negligence in construction, maintenance and traffic engineering of the bridge. Following agreed consolidation and resolution as to some of the claims, a jury trial resulted in verdicts and judgments in favor of the plaintiffs. The Court of Appeals reversed because of plaintiffs' failure to serve statutory tort claim notices on the Attorney General. Indiana State Highway Comm'n v. Morris (1986), Ind.App., 488 N.E.2d 713. We grant transfer.

1. Tort Claims Act notice requirement;

2. statutory limitation on amount of liability;

3. admissibility and effect of covenants-not-to-sue;

4. defendant's liability for costs.

Tort Claims Act Notice Requirement

The Commission first contends that plaintiffs' claims are barred by reason of their failure to serve dual notices of tort claim on both the Commission as the involved state agency and the Attorney General. The accident occurred October 14, 1978. By certified mail, plaintiffs mailed their notices of tort claim to the Commission. The notices were received on February 6, 1979, by Commission employee William T. May, serving in the capacity of Assistant Chief Engineer--Administration. Plaintiffs did not send tort claim notices to the Attorney General. However, on February 6, 1979, in accordance with his usual policy in cases against the Commission, Mr. May made copies of the notices and forwarded them to the Office of Attorney General, which received them on February 7, 1979.

The applicable provision of the Indiana Tort Claims Act provides:

Except as provided in [34-4-16.5-8] a claim against the state is barred unless notice is filed with the attorney general and the state agency involved within one hundred eighty (180) days after the loss occurs. However, if notice to the state agency involved is filed with the wrong state agency, that error does not bar a claim if the claimant reasonably attempts to determine and serve notice on the right state agency.

Ind.Code Sec. 34-4-16.5-6. There is no dispute regarding the adequacy of the content of the notices.

The Commission contends that the requirements of Ind.Code Sec. 34-4-16.5-6 were not met because the notice received by the Attorney General was not received directly from the plaintiffs, and that the doctrine of substantial compliance is not applicable.

The language of the statute, literally applied, simply requires that the tort claim notice be "filed" with the Attorney General and the state agency. It does not designate who must file the notice. Noting that the present Tort Claims Act requires only that notice "be given," the Court of Appeals has refused to permit "a party to rely upon the notice of claim given by some other party for that party's claim arising out of the same occurrence." Rosga v. City of Hammond (1985), Ind.App., 493 N.E.2d 787, 788-89.

Nor do we believe such reliance should be permitted. The city is entitled to know that the party is making a claim. Indeed, IC 34-4-16.5-10 contemplates that the city will pass on the claim and directs that it notify the claimant in writing within ninety (90) days of its approval or denial of the claim.

Id. In the present case, these objectives are satisfied because the Commission and the Attorney General each received timely notice fully advising them that the plaintiffs were making a claim.

The Commission emphasizes prior cases holding that mere actual knowledge of an occurrence, even when coupled with routine investigation, does not constitute substantial compliance. Dunn v. City of Indianapolis (1983), Ind.App., 451 N.E.2d 1122; 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 333; Galovick v. State (1982), Ind.App., 437 N.E.2d 505.

In Delaware County v. Powell (1979), 272 Ind. 82, 84, 393 N.E.2d 190, 191, Justice Pivarnik observed From Geyer, supra, and [City of Fort Wayne v.] Cameron, [ (1977), 267 Ind. 329, 370 N.E.2d 338], 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....

Although the specifics of the purposes of the notice statute have been elaborated upon in previous cases, Justice Hunter stated the larger consideration underlying allowing proof of substantial compliance in Galbreath v. City of Indianapolis (1970), 253 Ind. 472, 255 N.E.2d 225. Galbreath has been cited many times with continuing approval. The significant language of that opinion reads as follows:

The purpose of the notice statute being to advise the city of the accident so that it may promptly investigate the surrounding circumstances, we see no need to endorse a policy which renders the statute a trap for the unwary where such purpose has in fact been satisfied. (original emphasis)

253 Ind. at 480, 255 N.E.2d at 229.

Substantial compliance with the statutory notice requirements is sufficient when the purpose of the notice requirement is satisfied. Galbreath, supra; Burggrabe v. Board of Pub. Works (1984), Ind.App., 469 N.E.2d 1233; Mills v. American Playground Device, Co. (1980), Ind.App., 405 N.E.2d 621. The purposes of the notice statute include informing the officials of the political subdivision with reasonable certainty of the accident and surrounding circumstances so that political division may investigate, determine its possible liability, and prepare a defense to the claim. Geyer, supra; Galbreath, supra; Burggrabe, supra; Dunn, supra.

These purposes, combined with that of requiring a claimant to announce his intention to assert a claim, as noted in Rosga, supra, are thus the recognized objectives of the statutory notice requirement. In the present case, both the Commission and the Attorney General not only received full and timely information regarding the occurrence, but they each received formal notification of plaintiffs' intentions to assert a claim. This constituted more than mere actual knowledge. It satisfied the statutory objectives and achieved substantial, if not actual, compliance.

The question of compliance is not a question of fact for the jury but ultimately a legal determination to be made by the court. City of Indianapolis v. Satz, supra, Thompson v. City of Aurora (1975), 263 Ind. 187, 325 N.E.2d 839. The trial court correctly ruled that plaintiffs' claims were not barred by reason of failure to comply with the statutory notice requirement.

Statutory Limitation on Amount of Liability

The Commission next contends that the trial court erred in overruling its motion for remittitur. It argues that the verdict of $700,000 in favor of plaintiff Bonnie C. Morris, personal representative of the estate of Cindy J. Morris, deceased, and the verdict of $500,000 in favor of plaintiff Sherri Norton, were subject to remittitur to $300,000 each by reason of Ind.Code Sec. 34-4-16.5-4 which provides:

The combined aggregate liability of all governmental entities and of all public employees, acting within the scope of their employment and not excluded from liability under [Ind.Code Sec. 34-4-16.5-3], does not exceed three hundred thousand dollars [$300,000] for injury to or death of one person in any one occurrence and does not exceed five million dollars [$5,000,000] for injury to or death of all persons in that occurrence. A governmental entity is not liable for punitive damages.

Plaintiffs correctly note that the statute does not prohibit a verdict in excess of $300,000. State v. Bouras (1981), Ind.App., 423 N.E.2d 741. They further urge that the statute likewise does not apply to judgment entries, but is only applicable to prevent a judgment creditor from actually collecting more than the statutory limits.

While there is no proper purpose served by advising the jury of the statutory limits, we find that the entry of judgment is the appropriate point at which the statute should be applied. We therefore hold that the final judgments should not have been in excess of the applicable statutory limitation.

Admissibility and Effect of Covenants-Not-To-Sue

The Commission next contends that the trial court erred in excluding evidence regarding covenants-not-to-sue and payments received thereunder for the reason that these rulings precluded it from presenting the issue of whether plaintiffs had been fully or partially compensated.

The following facts from the parties' Agreed Statement of the Case pursuant to Appellate Rule 7.3 are relevant to our determination of this issue:

28. On March 25, 1980, [prior to commencement of trial] Plaintiff Bonnie C. Morris, as Personal Representative of the Estate of Cindy J. Morris, executed a covenant not to sue in favor of Sally Hauersperger [driver of the other vehicle] in exchange for a payment of $26,000.

29. On March 25, 1980, the plaintiff, Sherri Norton, executed a covenant not to sue in favor of Sally Hauersperger in exchange for a...