Ammerman v. State

SULLIVAN, Judge,

concurring.

It is clear that notice was not sent to the Department of Highways. Furthermore, I am unable to accept appellant's invitation to infer that such notice was in fact sent. The Tort Claims Act requires such notice. Here, however, the testimony of Mr. Burton justifies the holding: of the majority.

Mr. Burton clearly stated that notice to the Department would have been meaningless in that it would merely have been forwarded to the Attorney General and that the Department would not have initiated or conducted any investigation or take other action as a result of such notice.

Galovick v. State (1982) 1st Dist., Ind.App., 437 N.E.2d 505, quoted and relied upon Geyer v. City of Logansport (1977) 267 Ind. 334, 370 N.E.2d 333. In Geyer, despite actual notice to and investigation by the City, the failure of plaintiff to send notice to the governmental agency was fatal. Subsequently, however, in Delaware County v. Powell (1979) 272 Ind. 82, 393 N.E.2d 190, also cited in Galovick, our Supreme Court softened its position and held that if the purpose of the statute, ie., opportunity to investigate, was served, facts might be adduced to show either substantial compliance with the statute or waiver or estoppel on the part of the agency. Nevertheless, the Galovick court held that there must be some attempt to comply with the notice statute. The First District decision did not provide relief for a plaintiff where notice, though not attempted, would not have given rise to an agency investigation or other action. It purely and simply held that notice to the Attorney General is inadequate and that some notice to the agency itself must at least be attempted. See also Indiana Department of Public Welfare v. Clark (1985) 1st Dist., Ind.App., 478 N.E.2d 699. Only in that event could substantial compliance be found.

I do not believe Galovick or Clark are distinguishable, but in light of Delaware County v. Powell, supra, and City of Tipton v. Baxter (1992) 4th Dist., Ind.App., 593 N.E.2d 1280, I would decline to follow Galovick or Clark. Where as here, no useful purpose would be served by notice to the ageney, I would hold that failure to comply *841with the notice requirement of the Tort Claims statute is not fatal to the claim. This is not to say that the plaintiffs have substantially complied with the statute; rather, failure to provide or even attempt to provide notice does not frustrate the purpose of the notice provision. It is, therefore, perhaps more accurate to say that the ageney has waived the plaintiffs' non-compliance.

To be sure, most, if not all agencies, other than the Department of Highways, might well initiate or take some action relative to the claim other than to merely forward the notice to the Attorney General. Be that as it may, the Department here was not prejudiced and plaintiffs claim should proceed to be heard or be otherwise disposed of, I therefore concur.