Lawrence County Com'rs v. Chorely

• Decision Date: 27 December 1979
• Docket Number: No. 1-679A176,1-679A176
• Citation: 398 N.E.2d 694
• Parties: LAWRENCE COUNTY COMMISSIONERS, Defendant-Appellant, v. Diana G. CHORELY, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 694

398 N.E.2d 694

LAWRENCE COUNTY COMMISSIONERS, Defendant-Appellant, v. Diana G. CHORELY, Plaintiff-Appellee.

No. 1-679A176.

Court of Appeals of Indiana, First District.

Dec. 27, 1979.

Lee Pettay, Bloomington, for defendant-appellant.

NEAL, Judge.

This is an appeal from the Lawrence County Court from a judgment in favor of plaintiff-appellee, Diana G. Chorely, and against the defendant-appellant, Board of Commissioners of Lawrence County, for damages to appellee's automobile arising out of an incident where stones fell from appellant's truck while being operated upon a public highway.

We affirm.

This action was tried as a small claim and appellee appeared pro se. She has not filed a brief on appeal. The primary issue is whether the appellee sufficiently complied with the notice requirement of the Tort Claims Act.

The facts most favorable to the appellee in support of the judgment relating to notice or the lack thereof as required by the Tort Claims Act are as follows:

On September 6, 1978, appellee's car was damaged by stones falling off appellant's truck. On the same day appellee called one of the commissioners, Don Fisk, by phone, and told him of the accident. He informed appellee that he had already been apprised of the accident by the driver of the truck. Fisk told her the claim would be settled, she should get estimates and bring them to him, and he would turn them over to the insurance adjuster.

On September 25, 1978, appellee delivered the estimates to the assistant highway superintendent's office for forwarding to the insurance company. Appellee called Fisk a "couple times" in the ensuing week, and he told her that the insurance company would get in touch with her. Sometime between October 21, 1978, and October 27, 1978, appellee discovered that the estimates had been lost, and thereupon she provided other estimates directly to the insurance company. Sometime later the insurance agent called appellee and advised her to sue. Appellee filed her claim on October 27, 1978.

Insomuch as the cause of action is in tort, the applicable portions of the notice provisions of the Tort Claims Act must be examined. The relevant notice sections are as follows:

Ind.Code 34-4-16.5-6:

"Except as provided in section 8(34-4-16.5-8) of this chapter 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 34-4-16.5-7:

"Except as provided in section 8(34-4-16.5-8) of this chapter a claim against a political subdivision is barred unless notice is filed with the governing body of that political subdivision within one hundred eighty (180) days after the loss occurs."

Ind.Code 34-4-16.5-9:

"The notice required by sections 6, 7, and 8(34-4-16.5-6 34-4-16.5-8) of this chapter shall describe in a short and plain statement the facts on which the claim is based. The statements shall include the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice."

Ind.Code 34-4-16.5-10:

"Within ninety (90) days of the filing of a claim the governmental entity shall notify the claimant in writing of its approval or denial of the claim. A claim is denied if the governmental entity fails to approve the claim in its entirety within ninety (90) days, unless the parties have reached a settlement before the expiration of that period."

Ind.Code 34-4-16.5-11:

"The notices required by sections 6, 7, 8(34-4-16.5-6 34-4-16.5-8), and 10(34-4-16.5-10) of this chapter must be in writing and must be delivered in person or by registered or certified mail."

Ind.Code 34-4-16.5-12:

"A person may not initiate a suit against a governmental entity unless his claim has been denied in whole or in part."

The trial court overruled appellant's motion to dismiss based on the failure of appellee to give timely notice. The court, in the conclusions of law filed in the case, proceeded on a combination of two theories: (1) that appellee substantially complied with the notice provisions, and (2) under the small claims proceedings in county court, the giving of notice required by the Tort Claims Act was not necessary as a precondition to bringing her suit.

Since the perfection of this appeal, and since the brief was filed, our Supreme Court granted transfer and vacated the opinion of the Court of Appeals in Delaware County v. Powell, (1978) Ind.App., 382 N.E.2d 958. The Supreme Court opinion, in Cause No. 1179S304, handed down on November 5, 1979, sets forth the following:

"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 agent.' Id. (382 N.E.2d) 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...