FILED
Jun 26 2012, 9:39 am
FOR PUBLICATION
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JUSTIN F. ROEBEL JAMES H. YOUNG
Office of Corporation Counsel Young & Young
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CITY OF INDIANAPOLIS, )
)
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1108-CT-782
)
RACHAEL BUSCHMAN, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable John F. Hanley, Judge
Cause No. 49D11-1007-CT-30321
June 26, 2012
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
The City of Indianapolis (“the City”) appeals the trial court’s entry of summary
judgment in favor of Rachael Buschman on the issue of the sufficiency of her tort claim
notice. We reverse and remand.
Issue
The City raises one issue, which we restate as whether Buschman’s tort claim
notice was sufficient to notify the City of her personal injury claims.
Facts
On July 25, 2008, Buschman was rear-ended by an Indianapolis police officer on
86th Street in Indianapolis. On August 1, 2008, Buschman submitted a tort claim notice
to the City. Buschman’s notice included her name, address, and phone number; the time
and place of the accident; the police officer’s name, date of birth, and driver’s license
number; the accident report number; and the investigating officer’s identification number.
The notice also provided:
Damage: Rear Bumper and side panels damaged, see
estimate from Sam Swope. No injuries.
Claim: $960.99
App. p. 19. Buschman enclosed photos, the accident report, and a damage repair estimate
with her notice.
On July 9, 2010, Buschman filed a complaint against the City, alleging that as a
result of the City’s negligence she “suffered personal injuries, including left hip pain,
right leg pain, lower back pain and herniation of her lumbar discs at L4-5.” App. p. 8.
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Buschman also alleged that she had incurred medical expenses, had lost time and
earnings from work, and had endured great pain, suffering, and mental anguish.1
On October 28, 2010, the City filed its answer. As an affirmative defense, the
City asserted that Buschman’s claims were barred because her tort claim notice was
insufficient. That same day, the City moved for judgment on the pleadings based on
Buschman’s tort claim notice. Buschman responded, relying in part on her affidavit
explaining that she mailed her tort claim notice four days after the accident and that at
that time she “only had soreness” and did not believe she had an injury. App. p. 52.
According to the affidavit, only later did Buschman realize she had injuries from the
accident and seek medical treatment. Buschman later moved for summary judgment, as
opposed to judgment on the pleadings, based on the parties’ references to matters outside
the pleadings. Following a hearing, the trial court concluded that Buschman’s tort claim
notice was sufficient as a matter of law and granted summary judgment on this issue in
Buschman’s favor. The order was certified for interlocutory appeal, and we accepted
jurisdiction over the City’s appeal.
Analysis
The City argues that Buschman was not entitled to summary judgment because her
tort claim notice did not substantially comply with the notice requirements of the Indiana
Tort Claims Act (the “Act”). We review a trial court’s ruling on a motion for summary
judgment using the same standard applicable to the trial court. Perdue v. Gargano, 964
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The complaint initially named Buschman’s husband, Jeffry, as a plaintiff and the Indianapolis
Metropolitan Police Department as a defendant. Stipulations of dismissal relating to these parties were
filed, leaving Buschman and the City as the only remaining parties.
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N.E.2d 825, 831 (Ind. 2012). “Summary judgment is appropriate only if the designated
evidence reveals ‘no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.’” Id. (quoting Ind. Trial Rule 56(C)). All facts
and reasonable inferences drawn from the evidence designated by the parties are
construed in the light most favorable to the non-moving party. Id. “We do not defer to
the trial court’s determination of the law.” Id.
According to the Act, for a party to bring a tort claim against a political
subdivision, the political subdivision must receive notice within 180 days after a loss
occurs. Howard County Bd. of Comm’rs v. Lukowiak, 810 N.E.2d 379, 381 (Ind. Ct.
App. 2004) (citing Ind. Code § 34-13-3-8), clarified on reh’g, 813 N.E.2d 391. The
notice:
must describe in a short and plain statement the facts on
which the claim is based. The statement must 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.
I.C. § 34-13-3-10.2
Our supreme court has explained:
2
Buschman makes much of the fact that a previous version of the Act required a description of, among
other things, “‘the nature and extent of the injury to person and loss, injury or damage, if any, to property,
. . . and the nature of the damages arising to anyone therefrom . . . .’” City of Evansville v. Rieber, 179
Ind. App. 256, 258, 385 N.E.2d 217, 220 (1979) (quoting Ind. Ann. Stat. § 48-8001). She asserts that the
City should not attempt to write back into the statute what the Legislature deleted. We agree with the
City, however, that the current version’s reference to “the extent of the loss,” and “the amount of the
damages sought,” is another, less redundant way of saying the same thing as the previous statute. I.C. §
34-13-3-10.
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a notice is sufficient if it substantially complies with the
content requirements of the statute. What constitutes
substantial compliance, while not a question of fact but one of
law, is a fact-sensitive determination. In general, a notice that
is filed within the 180 day period, informs the municipality of
the claimant’s intent to make a claim and contains sufficient
information which reasonably affords the municipality an
opportunity to promptly investigate the claim satisfies the
purpose of the statute and will be held to substantially comply
with it.
Collier v. Prater, 544 N.E.2d 497, 499 (Ind. 1989). The Collier court rejected a
formalistic approach and stated that the crucial consideration is whether the notice
supplied by the claimant of his or her intent to take legal action contains sufficient
information for a political subdivision to ascertain the full nature of the claim against it so
that it can determine its liability and prepare a defense. Id. at 500. According to Collier,
“[w]hat information is sufficient will vary depending on the facts of each case.” Id.
In Collier, our supreme court analyzed whether a notice that identified Collier as
the claimant, stated an intent to seek damages, noted that the damages were for injuries
received during an arrest, identified the persons involved in that arrest, and explained that
the full extent of his damages could not be ascertained at that time was sufficient. Id.
The court held that the failure to include the place or the date of the event producing the
injury was of no great moment because the city needed only to contact the officers
involved or the police department to obtain that information. Id. The court observed:
Just as the notice statute should not become a trap for the
unwary, . . . neither should it become a refuge for the
unconscientious. The appellees had all the information before
them necessary to make an adequate investigation to
determine their liability and prepare a defense. They failed to
do so and sought protection in the formalities of the notice
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requirements. Allowing them protection under the
circumstances here would thwart the purpose behind the
notice provisions of the tort claims statute.
Id.
The City asserts that Collier is distinguishable. According to the City,
Buschman’s explicit denial of injuries in her notice gave the City no reason to investigate
a personal injury claim or to anticipate a claim for medical expenses, lost earnings, and
pain and suffering. Buschman responds by asserting that she was not required to specify
the type of claim she might bring or specify the damages she might seek. She contends
that the purpose of the statute was fulfilled because the City knew of her intent to make a
claim and the specifics of the accident such that it could investigate, determine its
possible liability, and prepare a defense.
Even if Buschman was not required to specify the claims she might bring or the
amount of damages she might seek in her notice, the question before us is not whether the
notice is improperly vague or open-ended regarding “the extent of the loss” or “the
amount of the damages sought.” I.C. § 34-13-3-10. To the contrary, Buschman’s notice
specifically informed the City of rear bumper and side panel damage in the amount of
$960.99 and expressly stated, “No injuries.” App. p. 19. Even the most liberal
construction of Buschman’s notice would not have put the City on notice of a potential
personal injury claim.
In this regard, this case is similar to Lukowiak, which involved a notice informing
the Board of claims for damages to an automobile and for medical costs. Lukowiak, 810
N.E.2d at 383. We determined that such a notice did not encompass a loss of consortium
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claim or a claim for lost wages. Id. We reasoned that the Board was made aware that it
needed to defend itself against a claim only for damages to an automobile and for
medical costs and that to hold otherwise would effectively eliminate the safeguard that
political subdivisions be able to ascertain the full nature of the claim against it based
upon the notice. Id. at 383-84.
Although Buschman’s notice indicated an intent to take legal action, it did not
contain sufficient information for the City to anticipate a potential personal injury claim
so that it could assess the full extent of its liability and prepare a defense. Even if, as
Buschman contends, the City could not have further investigated the extent of her injuries
or her injuries could have changed over time, the City might have approached its
investigation of the accident or its assessment of liability differently had known it faced a
potential personal injury claim in addition to the claim for damage to the vehicle.
We also disagree with Buschman’s suggestion that the City had all the information
it needed to investigate the claim, to determine its liability, and to prepare a defense.
Unlike in Collier, there is no indication that the City had information in its own files from
which it could determine that Buschman was injured in the accident. In fact, according to
her affidavit, Buschman herself did not even realize the she was injured until sometime
after she submitted her notice. This is not a circumstance in which the City used the Act
as “a refuge for the unconscientious.” Collier, 544 N.E.2d at 500.
Buschman also argues that she was not statutorily required to submit a second
notice or amend her notice once she became aware of her physical injuries. We are not
persuaded that by merely submitting a tort claim notice Buschman preserved all claims
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and the ability to recover all damages that arose out of the accident. Such a holding
would effectively eliminate “the extent of the loss” and “the amount of the damages
sought” provisions from the notice requirement. I.C. § 34-13-3-10. Instead, we hold
that, when a claimant’s notice contains a specific and definitive assessment of loss, his or
her recovery is limited to the loss described in the original notice. Alternatively, if, as is
the case here, additional losses are discovered after the notice has been submitted, we see
no reason why the claimant could not amend the original notice or submit another notice
in a timely manner. See Lukowiak, 810 N.E.2d at 384 (observing that, although no
provision of the Act authorizes a claimant to file an amended notice, had a timely
amended notice been filed “we perceive of no problem with allowing the amendments to
be applicable to the claim.”).
Buschman also argues that, because the statute does not expressly require
claimants to amend a notice or submit another notice upon learning of additional losses, it
“is just another trap for unwary, unsophisticated or untrained citizens.” Appellee’s Br. p.
17. We appreciate Buschman’s concerns and steadfastly favor broad access to the courts;
however, this is an issue for the Legislature to resolve. Buschman’s notice contained a
definitive statement of her damages and an express denial of injuries. Under these
circumstances, the notice was insufficient to inform the City of any potential liability for
a personal injury claim regardless of the extensive details concerning the accident itself.
Thus, Buschman’s notice did not substantially comply with the requirements of the Act
for purposes of her personal injury claim, and summary judgment in her favor on this
issue was improper.
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Conclusion
The trial court improperly granted summary judgment in Buschman’s favor on the
issue of whether her notice was sufficient to inform the City of a potential personal injury
claim. We reverse and remand for further proceedings.
Reversed and remanded.
FRIEDLANDER, J., and MAY, J., concur.
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