Rosga v. City of Hammond

Decision Date19 December 1985
Docket NumberNo. 3-485,3-485
PartiesMarion B. ROSGA, individually and as Special Administratrix for Richard M. Rosga, deceased, Plaintiff-Appellant, v. The CITY OF HAMMOND, Indiana and the State of Indiana, Defendants-Appellees. A 99.
CourtIndiana Appellate Court

Michael A. Thill, Cohen, Foss, Schuman & Drake, East Chicago, Patrick F. Geary, Arnstein, Gluck, Lehr, Barron & Milligan, Chicago, Ill., for plaintiff-appellant:

Joel C. Levy, Gregory R. Lyman, Singleton, Levy, Crist & Johnson, Highland, G. Richard Potter, Deputy Atty. Gen., Indianapolis, for defendants-appellees.

GARRARD, Judge.

This case involves a claim for personal injuries and for wrongful death asserted against the City of Hammond. Without dispute the claims are subject to the provisions of the Tort Claims Act, IC 34-4-16.5-12 et seq.

The trial court granted summary judgment for the city on the basis of the failure to give notice as required by IC 34-4-16.5-7.

It is undisputed that neither Rosga nor anyone authorized by her to act in her behalf gave any notice to the city within the requisite 180 days.

On the other hand, it appears that a notice concerning the automobile collision in which Rosga was injured and her husband was killed was timely served upon the city. That notice was signed by an attorney who represented that he was the authorized agent and attorney for the executor and administrators of three other people killed in the crash.

The caption of this notice recited that it concerned the property damage and personal injury claims of those three, "and all persons similarly situated, injured or killed" in the accident. The body of the notice mentioned Mrs. Rosga and her husband by name and that she had been injured and he had been killed. It did not, however, otherwise purport to advance a claim on behalf of Mr. or Mrs. Rosga.

Pointing to the fact that the statute simply calls for the filing of notice with the appropriate body, Rosga appeals urging the notice requirement has been met. We disagree.

It appears that throughout its history the governmental Tort Claims Act has periodically expressly required that notice be given by the claimant or his authorized representative and periodically the Act, as the present version, has merely spoken in terms of the requirement that notice be given. 1 Cases interpreting the statute have held that notice given by the claimant's attorney or agent is sufficient. City of Gary v. Russell (1953), 123 Ind.App. 609, 112 N.E.2d 872; City of Terre Haute v. Pigg (1940), 108 Ind.App. 68, 27 N.E.2d 137. We find none, however, permitting 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.

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. Furthermore, IC 5-11-10-1 which applies generally to the allowance of claims by the state or any of its political subdivisions forbids payment of a claim unless its correctness has been properly certified to "by the claimant, or some authorized person in his behalf."

In fact, as between the claimant and the city in this case the situation most closely parallels those where a claimant has attempted to rely upon actual notice of the incident to avoid the necessity of giving the statutory notice. Such claims have been uniformly rejected by this court. Board of Aviation Commr's. of St. Joseph County v. Hestor (1985), Ind.App., 473 N.E.2d 151; Batchelder v. Haxby (1975), 167 Ind.App. 82, 337 N.E.2d 887.

We conclude that no notice was given by, or on behalf of, the claimant by any authorized representative, and that such notice was necessary to enable the claimant to maintain the action.

Rosga argues in the alternative that the notice requirement should be found to have been waived since the city did not investigate the accident upon the notice it did receive. Delaware Co. v. Powell (1979), 272 Ind. 82, 393 N.E.2d 190 and Lawrence Co. Commr's. v. Chorely (1979), Ind.App., 398 N.E.2d 694 are cited.

In the Powell case our Supreme Court acknowledged that the notice requirement might be waived by failure to assert the defense or through "acts or conduct" of the governmental unit. 393 N.E.2d at 191. It held that...

To continue reading

Request your trial
10 cases
  • J.A.W. v. State, 32A01-9212-CV-415
    • United States
    • Court of Appeals of Indiana
    • May 15, 1995
    ...(1989), Ind., 544 N.E.2d 497, 499; Indiana State Highway Comm'n v. Morris (1988), Ind., 528 N.E.2d 468, 471; Rosga v. City of Hammond (1985), Ind.App., 493 N.E.2d 787, 789, trans. In this case, not only did J.A.W. not advise DPW that he intended to assert a tort claim, but also J.A.W. speci......
  • Mayor v. Stokes
    • United States
    • Court of Special Appeals of Maryland
    • June 25, 2014
    ...conclusion regarding reliance upon the compliance of another party to satisfy the notice requirement. In Rosga v. City of Hammond, 493 N.E.2d 787, 788 (1985 Ind.Ct.App.) the plaintiff's husband, along with three other individuals, were killed in an automobile accident. An attorney represent......
  • Dameron v. City of Scottsburg, Ind., NA97-110-C H/G.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • December 18, 1998
    ...serve the governmental entity with his own notice of a tort claim in order to preserve his cause of action. In Rosga v. City of Hammond, 493 N.E.2d 787, 789 (Ind.App.1985), the court affirmed summary judgment for the city on the ground that the plaintiff failed to file a notice of tort clai......
  • Indiana State Highway Com'n v. Morris, 41S01-8809-CV-833
    • United States
    • Supreme Court of Indiana
    • September 22, 1988
    ...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 clai......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT