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

• Citation: 177 N.E.3d 796
• Decision Date: 16 December 2021
• Docket Number: Supreme Court Case No. 21S-CT-295
• Parties: Clarence LOWE, Appellant, v. NORTHERN INDIANA COMMUTER TRANSPORTATION DISTRICT, Appellee.
• Court: Supreme Court of Indiana

177 N.E.3d 796

Clarence LOWE, Appellant,

v.NORTHERN INDIANA COMMUTER TRANSPORTATION DISTRICT, Appellee.

Supreme Court Case No. 21S-CT-295

Supreme Court of Indiana.

Argued: September 16, 2021

Filed December 16, 2021

ATTORNEYS FOR APPELLANT: Michael P. Massucci, Kelly Law Offices LLC, Schererville, Indiana, Thomas A. Kelliher, Horwitz Horwitz & Associates, Chicago, Illinois

ATTORNEYS FOR APPELLEE: Robert A. Welsh, L. Charles Lukmann, III, Connor H. Nolan, Harris Welsh & Lukmann, Chesterton, Indiana

ATTORNEYS FOR AMICI CURIAE ACCELERATE INDIANA MUNICIPALITIES AND INDIANA MUNICIPAL LAWYERS ASSOCIATION: Peter J. Rusthoven, Mark J. Crandley, Barnes & Thornburg LLP, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, Case No. 20A-CT-1584

Slaughter, Justice.

Clarence Lowe, an employee of the Northern Indiana Commuter Transportation District, claims he was injured at work. We must decide whether the District, which operates a government-owned railroad, is a "state agency" or "political subdivision" under the Indiana Tort Claims Act. If the District is a state agency, the Act requires that pre-suit notice be served within 270 days of the injury; if it is a political subdivision, pre-suit notice must be served within 180 days. We hold that the District is a political subdivision under the Act. Thus, it was entitled to notice within 180 days of Lowe's alleged injury. Because Lowe did not provide notice until 263 days after his injury, his notice was untimely, and his suit is time-barred.

I

In early 2018, Clarence Lowe was working for the District, which owns and operates a passenger rail line between Chicago and South Bend. Lowe claims he was injured while manually hammering spikes into frozen track ties. He sent a notice of tort claim to the Indiana attorney general, who received the notice 263 days after Lowe's injury. The attorney general responded that the State of Indiana "does not appear" to have "any connection with this case" because the State was not a named party. Lowe then filed a complaint against the District under FELA, the Federal Employers’ Liability Act. The District moved for summary judgment, arguing that although Indiana has waived sovereign immunity for FELA actions, such suits are subject to the Indiana Tort Claims Act. The District further argued that for purposes of the Act, it is a political subdivision, not a state agency, and because Lowe failed to serve it with a notice of tort claim within 180 days after his injury, the Act bars his FELA claim. The trial court granted summary judgment to the District and against Lowe.

Lowe appealed, and the court of appeals affirmed, concluding that the District is a political subdivision under the Act, and that his notice of tort claim was untimely. Lowe v. N. Indiana Commuter Transp. Dist. , 167 N.E.3d 290, 291–92 (Ind. Ct. App. 2021). Lowe then sought transfer, which we granted to answer this important question of first impression, thus vacating the appellate opinion. Lowe v. N. Indiana Commuter Transp. Dist. , 169 N.E.3d 1119 (Ind. 2021).

II

FELA, codified at 45 U.S.C. §§ 51 – 60, makes a common-carrier railroad liable for injuries an employee suffers on the job due to the railroad's negligence. Beckley v. Beckley , 822 N.E.2d 158, 161 (Ind. 2005) (citing Consol. Rail Corp. v. Gottshall , 512 U.S. 532, 542, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) ). On summary judgment, the District argued that Lowe's FELA claim was time-barred because he failed to comply with the 180-day notice requirement in Indiana's Tort Claims Act. Summary judgment is appropriate where there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Griffin v. Menard, Inc. , 175 N.E.3d 811, 813 (Ind. 2021). Here, the parties do not raise disputed issues of fact; what they dispute, as a matter of law, is whether the Act applies and, if so, which notice requirement governs.

As a threshold matter, we ask first whether the Act applies to FELA suits against state entities and hold that it does. Lowe argues that the Act cannot apply to a FELA lawsuit because a state statute cannot abrogate a right to file an action granted by a federal statute. But he cites no case from any jurisdiction holding that a state's tort-claims act does not apply to a FELA action. To the contrary, we note at the outset that Congress enacted FELA under its Article I powers. See, e.g., Parden v. Terminal Railway of the Alabama State Docks Dep't , 377 U.S. 184, 190–92, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), overruled on other grounds by College Savs. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd. , 527 U.S. 666, 680, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). Congress does not have the power under Article I 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). To determine whether Indiana has consented to suit under FELA, and under what circumstances, we would turn to the Act. Esserman v. Indiana Dep't of Env't Mgmt. , 84 N.E.3d 1185, 1190 (Ind. 2017). Thus, the mere fact that FELA is a federal statute does not automatically exclude from consideration the procedural constraints of our state's Tort Claims Act. We note further that Lowe has not argued that FELA preempts the Act; nor have we discerned from FELA's text that Congress intended to occupy the field of negligence claims against railway employers. Thus, we see no reason not to apply here the general rule allowing states to "apply their own neutral procedural rules to federal claims, unless those rules are pre-empted by federal law". Howlett v. Rose , 496 U.S. 356, 372, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) ; accord Mondou v. New York, New Haven, & Hartford Railroad Co. , 223 U.S. 1, 2, 59, 32 S.Ct. 169, 56 L.Ed. 327 (1912) (requiring states to adjudicate issues under FELA assuming "their jurisdiction, as prescribed by local laws, is adequate to the occasion").

Finding no reason under federal law to bypass our Tort Claims Act, we turn to its text. By its own terms, the Act applies to "a claim or suit in tort", Ind. Code § 34-13-3-1(a), against governmental entities and their employees, Burton v. Benner , 140 N.E.3d 848, 852 (Ind. 2020). We find the reasoning in Oshinski v. Northern Indiana Commuter Transportation District , 843 N.E.2d 536 (Ind. Ct. App. 2006), persuasive. There, our court of appeals concluded that the Act applies to FELA claims against the District because the Act governs tort claims against governmental entities, and FELA claims are tort claims. Id. at 543–44. Although FELA does not use the word "tort", by its terms, it applies to causes of action arising from "negligence". 45 U.S.C. § 51. And negligence is a type of tort. Oshinski , 843 N.E.2d at 544 (citing Tennant v. Peoria & Pekin Union Railway Co. , 321 U.S. 29, 32, 64 S.Ct. 409, 88 L.Ed. 520 (1944), and Simpson v. N.E. Illinois Reg'l Commuter R.R. Corp. , 957 F. Supp. 136, 138 (N.D. Ill. 1997) ). A later court of appeals opinion, Rudnick v. Northern Indiana Commuter Transportation District , 892 N.E.2d 204, 207 (Ind. Ct. App. 2008), relying on Oshinski , also applied the Act in a FELA suit against the District. We follow these cases and hold that where, as here, a state entity is sued under FELA, the Act applies.

Next, we ask whether the District is a state agency or political subdivision under the Act. We hold that the legislature defines the District as a political subdivision for purposes of the Act, and thus Lowe was subject to its 180-day notice requirement. We then address Lowe's arguments that even if the Act applies to FELA claims against state entities in general, we should not apply the Act's 180-day notice requirement here. Finding Lowe's arguments unavailing, we affirm the trial court's order granting summary judgment to the District.

A

The parties agree that Lowe did not serve a tort-claims notice until 263 days after his alleged injury. Whether his notice was timely turns on which provision of the Act applies. Under Indiana Code subsection 34-13-3-8(a), a would-be claimant must give notice within 180 days to a "political subdivision"; under subsection 34-13-3-6(a), on the other hand, a would-be claimant has 270 days to give notice to a "state agency". The Act defines both terms. A political subdivision is one of thirteen categories, including a "separate municipal corporation". I.C. § 34-6-2-110(5). Here, Lowe concedes that the District is a political subdivision under the Act: "[The District] is defined by Indiana's legislature as a political subdivision under the [Act]". Lowe's concession follows from the District's enabling statute, which defines the District as a "distinct municipal corporation". I.C. § 8-5-15-2(b). We thus treat a "distinct" municipal corporation as a "separate" municipal corporation under the Act and hence a political subdivision. As a political subdivision, the District is not a state agency. I.C. § 34-6-2-141.

Prior Indiana opinions involving FELA claims against the District are inconsistent as to whether the District is a state agency or political subdivision under the Act. In Oshinski , 843 N.E.2d at 539, our court of appeals concluded in dicta that the District is a state agency: "The parties do not dispute, the trial court found, and we agree that [the District] is a state agency." But Oshinski cited Gouge v. Northern Indiana Commuter Transportation District , 670 N.E.2d 363 (Ind. Ct. App. 1996), which did not address the Act. Oshinski , 843 N.E.2d at 539. Rather, Gouge concluded the District is a state agency under Trial Rule 54(D) (permitting award of costs against state agency only if specifically authorized by law). Gouge , 670 N.E.2d at 368–69. Because Oshinski relied on a case interpreting a trial rule and not the Act's plain text, we part ways with Oshinski on this point.

Instead, we share the view of two more recent appellate cases, Rudnick , 892 N.E.2d at 204, and Januchowski...