Lowe v. N. Ind. Commuter Transp. Dist.

• Decision Date: 02 March 2021
• Docket Number: Court of Appeals Case No. 20A-CT-1584
• Citation: 167 N.E.3d 290
• Parties: Clarence LOWE, Appellant-Plaintiff, v. NORTHERN INDIANA COMMUTER TRANSPORTATION DISTRICT, Appellee-Defendant.
• Court: Indiana Appellate Court

167 N.E.3d 290

Clarence LOWE, Appellant-Plaintiff,

v.NORTHERN INDIANA COMMUTER TRANSPORTATION DISTRICT, Appellee-Defendant.

Court of Appeals Case No. 20A-CT-1584

Court of Appeals of Indiana.

FILED March 2, 2021

Publication Ordered March 25, 2021

Case Summary

[1] Clarence Lowe ("Lowe") sued his employer, Northern Indiana Commuter Transportation District ("NICTD"), under the Federal Employers’ Liability Act ("FELA"), 45 U.S.C. § 51 et. seq., which provides a federal cause of action for railroad employees injured as a result of negligence. Lowe gave notice of his claim to the Indiana Attorney General 263 days after his alleged injury.¹ However, NICTD is a political subdivision, and the Indiana Tort Claims Act ("ITCA") requires service upon the governing body and the Indiana political subdivision risk management commission within 180 days of loss.² The trial court granted summary judgment to NICTD, concluding that a FELA claim is a tort claim; NICTD – although an arm of the state for Eleventh Amendment sovereign immunity purposes – is a political subdivision for tort claims purposes; Eleventh Amendment sovereignty is waived subject to compliance with ITCA; and Lowe's failure to timely provide a tort claims notice barred his claim. On appeal, Lowe presents the issue of whether summary judgment was improvidently granted, because he substantially complied with, or is not required to comply with, ITCA. We affirm.

Facts and Procedural History

[2] NICTD operates a commuter train line from South Bend, Indiana to Millennium Station in Chicago, Illinois. On January 12, 2018, Lowe was working on a portion of the train track in Chicago when he allegedly sustained injuries to his shoulders. On April 3, 2018, in Cook County, Illinois, Lowe filed a FELA lawsuit against NICTD. On October 2, 2018, 263 days after Lowe's injury, Lowe served a Notice of Tort Claim on the Indiana Attorney General. On December 18, 2018, the Illinois lawsuit was dismissed with prejudice on Eleventh Amendment sovereign immunity grounds. Lowe did not appeal the dismissal.

[3] On January 18, 2019, Lowe filed a complaint in Porter County, Indiana. He alleged that NICTD failed to provide proper hydraulic equipment and he had been injured while manually hammering spikes into frozen railroad ties. The Indiana Attorney General disclaimed an interest in the lawsuit. On October 18, 2019, NICTD filed a motion for summary judgment.

[4] On July 28, 2020, the trial court conducted a hearing at which argument of counsel was heard. NICTD argued that, for sovereign immunity purposes, it was to be treated as an arm of the State, having immunity from a private citizen lawsuit in federal court or the court of another state. NICTD conceded that, in the enactment of ITCA, Indiana had waived that immunity to the extent that NICTD could be sued in Indiana subject to compliance with ITCA. According to NICTD, Lowe's FELA suit was subject to dismissal for failure to comply with ITCA's 180-day notice requirement for suits against a political subdivision.

[5] Lowe argued that NICTD is "either a state agency or political subdivision." (Tr. Vol. II, pg. 21.) He further argued that, if NICTD is a state agency, the 270-day notice requirement was satisfied, and, if NICTD is instead a political subdivision "they lose their sovereign immunity" and the terms of ITCA could not shield against a FELA lawsuit or impose a 180-day restriction. (Id. at 22.) Lowe submitted a memorandum of law in which he contended that "the Supremacy Clause prevents application of Indiana's Tort Claims Act for a FELA suit," (App. Vol. II, pg. 101), and that "the Act as applied discriminates against a federally created right." (Id. at 102.)

[6] On July 31, 2020, the trial court granted summary judgment to NICTD. In relevant part, the trial court concluded that NICTD is statutorily defined as a political subdivision, ITCA requires the filing of a notice of a tort claim within 180 days of loss as a prerequisite to suit against a political subdivision, and ITCA is not unconstitutional as applied to Lowe. The trial court's order stated that Januchowski v. N. Ind. Commuter Transp. Dist. , 905 N.E.2d 1041 (Ind. Ct. App. 2009) (recognizing that the 180-day notice requirement was applicable in a suit against NICTD) was controlling authority. The order additionally stated that Lowe "simply argues that this Court should ignore controlling precedent and opinions issued by the Indiana Court of Appeals." (App. Vol. II, pg. 10.) Lowe now appeals.

Discussion and Decision

Standard of Review

[7] A trial court's order granting summary judgment comes to us "cloaked with a presumption of validity." DiMaggio v. Rosario , 52 N.E.3d 896, 903 (Ind. Ct. App. 2016). A party appealing from an order granting summary judgment has the burden of persuading the appellate tribunal that the decision was erroneous. Januchowski , 905 N.E.2d at 1045. However, where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo. Id. We apply the same standard as the trial court, that is, summary judgment is appropriate "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C).

Analysis

[8] As best we can discern Lowe's appellate arguments, which significantly expand upon his more concise arguments at the summary judgment hearing,³ Lowe's primary contentions are that he complied with ITCA by giving notice to the Attorney General within 270 days of his injury or, alternatively, he is not required to comply with ITCA because (1) the State of Indiana intended a blanket waiver of its sovereign immunity with respect to FELA claims or (2) a political subdivision such as NICTD lacks sovereign immunity and may not invoke a term of ITCA on grounds that it represents a qualified waiver.⁴

[9] The liability of a common carrier railroad engaged in interstate commerce for injuries to its employees is addressed by FELA, 45 U.S.C. § 51, et. seq. , enacted under the Commerce Clause of the United States Constitution.

Every common carrier railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.

45 U.S.C.A. § 51. When a FELA claim is brought in state court, federal law applies to the substance of the claims, and the law of the forum controls with regard to questions of evidence and procedure. Eversole v. Consolidated Rail Corp. , 551 N.E.2d 846, 854 (Ind. Ct. App. 1990), trans. denied.

[10] "[T]he [Eleventh] Amendment reflects the constitutional principle that a State may not be sued in federal court without its consent whether the suit is brought by a foreign citizen, a citizen of another state, or the state's own citizens." Montgomery v. Bd. of Trs. of Purdue Univ. , 849 N.E.2d 1120, 1124 (Ind. 2006). "The powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts." Alden v. Maine , 527 U.S. 706, 712, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Thus, when a FELA claim proceeds in state court, "issues of sovereign immunity come into play." Januchowski , 905 N.E.2d at 1046. A state may only be sued in its own state courts where it has waived sovereign immunity through a clear declaration. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd. , 527 U.S. 666, 680, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).

[11] In 1972, the Indiana Supreme Court abolished the doctrine of common law sovereign immunity in the State of Indiana, with some limited exceptions, deferring to the legislature to consider which types of governmental conduct would result in immunity from liability. See Campbell v. State , 259 Ind. 55, 284 N.E.2d 733, 737 (1972). Then, in 1974, the Indiana Legislature enacted ITCA, which provides that governmental entities are subject to suit in Indiana state courts⁵ for their torts, with certain enumerated exceptions. See Ind. Code § 34-13-3-3.

[12] "[A] State may prescribe the terms and conditions on which it consents to be sued." Oshinski v. N. Indiana Commuter Transp. Dist. , 843 N.E.2d 536, 543-44 (Ind. Ct. App. 2006). The Oshinski Court considered whether a FELA claim was a tort claim subject to ITCA. The Court observed that, although FELA claims are not explicitly defined as negligence claims, federal case law characterizes them as such, requiring a plaintiff to prove foreseeability, duty, breach, and causation. Id. at 544. "FELA actions are tort actions, [and] we hold that FELA suits against the State filed in Indiana courts are properly...