Madden v. Erie Ins. Group

• Decision Date: 31 May 1994
• Docket Number: No. 49A02-9308-CV-456,49A02-9308-CV-456
• Citation: 634 N.E.2d 791
• Parties: Edward J. MADDEN, Sr., Indiana Department of Transportation State of Indiana, Appellants-Defendants, v. ERIE INSURANCE GROUP, as Subrogee of Wayne Graham and Teresa Graham, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 791

634 N.E.2d 791

Edward J. MADDEN, Sr., Indiana Department of Transportation State of Indiana, Appellants-Defendants, v. ERIE INSURANCE GROUP, as Subrogee of Wayne Graham and Teresa Graham, Appellees-Plaintiffs.

No. 49A02-9308-CV-456.

Court of Appeals of Indiana Second District.

May 31, 1994.

Pamela Carter, Atty. Gen., John G. Clifton, Deputy Atty. Gen., Indianapolis, for appellant.

Richard K. Shoultz, Lewis & Wagner, Indianapolis, for appellee.

FRIEDLANDER, Judge.

This is an interlocutory appeal by defendants-appellants, Edward Madden, Sr., the Indiana Department of Transportation and the State of Indiana, (collectively referred to as Madden and the State), from an order of the Marion Municipal Court denying Madden and the State's motion for summary judgment in a tort action brought by plaintiff-appellee, Erie Insurance Group (Erie), as subrogee of Wayne and Teresa Graham.

We reverse.

On January 25, 1992, a snow plow struck Wayne Graham's vehicle at an intersection on Fall Creek Parkway in Indianapolis. Graham subsequently filed a claim for the property damage to his vehicle with Erie, his insurance carrier, and Erie paid Graham $14,267.22 for his loss.

Erie sought to recover its loss from the snow plow operator, whom it believed responsible for the accident. Erie reviewed a police report of the accident, which apparently indicated that Madden had been operating the plow at the time of the accident. ¹ The report also apparently indicated that Madden's plow was owned by "the Department of 'ADMZ INDUT.' " Appellant's Brief at 3. After reviewing the police report, Erie mailed a letter to Madden at the address noted on the report, but the letter was returned. Record at 202.

Subsequent to having received the returned letter, Erie had a telephone conversation with Madden. During the conversation, Erie claims Madden stated, " '[T]his is not my problem ... it's [sic] the department.' " Record at 215. At the close of the brief call, Erie contends that Madden "started to say something about Indiana. And then he said, I don't have to give ... a statement, and hung up...." Id.

Believing that Madden might have been an employee of the State, Erie contacted, by telephone, the tort claims section of the Office of Attorney General. During the conversation with an employee of the Attorney General's office, Erie asked whether " 'the Department of ADMZ' was a State entity and required Tort Claims Notice." Appellant's Brief at 3. Erie claims the employee responded that he was unsure, but stated "if the name of Indiana appeared on ... [the] police report ... [Erie] needed to put the Attorney General and the Commissioner on notice, with all proper documentation." Record at 221. The employee also advised Erie that Erie should again place the snow plow driver and his company on notice, make a demand, and send copies of documentation to both.

On April 8, 1992, Erie mailed such a letter to "Department of ADMZ, Attn: Edward Madden, Sr., INDUI Cump, 507 State Office Building, Indianapolis, IN 46205." Record at 25. On May 11, 1992, Erie mailed a second letter and, on June 15, 1992, Erie mailed a third and final letter, both addressed as the first. Erie received no response to any of its letters, Record at 218, and initiated this lawsuit against Madden and the State on December 21, 1992.

On March 24, 1993, Madden and the State filed a motion for summary judgment, alleging that Erie had failed to state a claim upon which relief could be granted because Erie had not complied with the mandatory notice requirement set forth in Indiana's Tort Claims Act (ITCA). The materials upon which Madden and the State relied to support the motion included: (1) an affidavit from the duly authorized keeper of all notices of tort claims sent to the office of the Attorney General of Indiana stating that Erie, as subrogee of the Grahams, had never filed notice of a tort claim with that office, and (2) specific portions of the deposition of the employee who had handled this matter for Erie.

On July 2, 1993, the trial court denied the motion for summary judgment and stated:

"[T]he Court now finds as follows:

1. Court believes that the failure of Mr. Edward J. Madden, to submit copies of the letters that he received from Erie Insurance Group resulted in Erie Insurance Group being unable to comply with the Indiana Tort Claims Notice Act.

2. The purpose behind the Indiana Tort Claims Notice Act[ ] was substantially met and complied with based upon the actions of [Erie] in attempting to put [the State] on notice." Record at 82.

After the trial court denied the motion for summary judgment, an interlocutory appeal was certified, ordered and accepted.

Madden and the State present a single issue for our review, which is whether a claim of substantial compliance with the notice requirement can be made under the facts and circumstances of this case.

A trial court's order denying a motion for summary judgment is ordinarily not an appealable interlocutory order. Rather, a party generally challenges such an order by a motion to correct error once the trial court enters a final judgment or order. State, Department of Natural Resources v. Taylor (1981), Ind.App., 419 N.E.2d 819. The requisites of the rule which allows appeals from interlocutory orders are met, however, if the parties present no conflict in the operative facts and agree that no genuine issue of material fact exists, and if the defendant raises defenses within the motion for summary judgment, which, if applicable, would entitle it to judgment as a matter of law. Id. Inasmuch as that is the case here, we consider only whether the trial court erred in denying Madden and the State's motion for summary judgment as a matter of law.

The crucial question before us is whether Erie complied with the notice requirement of ITCA. Pursuant to Ind.Code 34-4-16.5-6, a claim against the State must be filed with the Attorney General and the state agency involved within 180 days of the claimed loss. The question of compliance is not a question of fact, but rather a procedural precedent which the plaintiff must prove and which the trial court must determine prior to trial. State, Ind. Dept. of Highways v. Hughes (1991), Ind.App., 575 N.E.2d 676. The notice statute serves several purposes, which include: (1) informing officials of the political subdivision of both the accident and its surrounding circumstances, with reasonable certainty, so that the division may investigate, determine its possible liability, and prepare a defense to the claim, and (2) requiring a claimant to announce any intention to assert a claim. Indiana State Highway Comn. v. Morris (1988), Ind., 528 N.E.2d 468 ("Morris II"). "Substantial compliance with the statute's notice requirement is sufficient when the purpose of the notice requirement is satisfied." Id.

Erie directs us to Morris II, and maintains that, while it may have failed to serve formal notice upon the State, its actions nevertheless constituted "substantial compliance" with the notice requirement of ITCA. Although the trial court agreed with Erie, we do not.

In Morris II,...