dissenting.
I dissent from the Majority Opinion and the Concurring Opinion for these reasons:
1. Both opinions rely on the testimony of Gerry Burton of the Highway Department to establish substantial compliance and that the purpose of the statute has been satisfied. A careful reading of the testimony reveals that the leading questions and not the answers are the basis of the Majority's substantial compliance conclusion.
2. Galovick v. State (1982), Ind.App., 437 N.E.2d 505, reh. denied, is not distinguishable from the appeal under consideration. For the reason stated above, there was no showing of substantial compliance; therefore the trial court should be affirmed.
3. City of Tipton v. Baxter (1992), Ind.App., 593 N.E.2d 1280 does not have all the factors of the present appeal as suggested by the Majority. First, a different notice statute is involved-IC 27-1-29. Secondly, Gerdes, the claim examiner for the insurance company, had paid for the property damage involved in Baxter's accident leaving only the personal injury part of the claim to be settled. No settlement was made of any part of Ammerman's claim. In fact, the claim was denied by the Attorney General.
When reviewing the testimony cited by the Majority Opinion, a careful reading and analysis discloses the true substance of Gerry Burton's testimony. The questions were carefully crafted to deal only with the tort claim notice and the path that it travels. It is clear that the questions are directed to the witness in this setting "... after you transmit it to the office of the Attorney General or are you simply out of the loop entirely as far as that notice is concerned?" Supp. record, p. 20. The next question and answer underlines the intended diversions by the interrogating attorney:
Q: You don't investigate the material or the claim set forth in the tort claim notice, do you?
A: That's right. In the context of a legal investigation we do mot. By nature, of course, if we get some massive notice of a major problem, then by definition we would forward information to other areas within the department to check into it. Such as 30 or 40 blowouts on a given highway. We hope and work on the assumption that we have responded timely to that need. But we do a follow-up in that sense, which is simply a general maintenance follow-up. (Emphasis added.)
The witness is clearly trying to separate the Attorney General's legal investigation after receiving the notice from the Department's investigation of an accident upon receiving the notice. He testified that his department investigates to see if the accident presents a major problem that would require a timely response. He further indicated that his department does a follow-up on the information. This department investigation is the purpose of the statute. Notice is provided to the State so that it can not only investigate the scene of the accident but take corrective action if needed to protect the public from further injury. For example, if the Department had an opportunity to examine its records to determine the number of accidents at this particular railroad crossing, future deaths and personal injuries could have been avoided. In the present case, this purpose of the notice was not satisfied. There was no substantial compliance with the statutory no*842tice. The Majority gleans substantial compliance from the questions put to Gerry Burton rather than the substance of his answers.
The Attorney General's investigation is primarily concerned with the interviewing of witnesses and the determination of Hability of the State. The clever questions directed to the witness steered around the heart of the question-was there substantial compliance. The answer is no. Why, because you must conclude that the Department does nothing upon receiving the notice except to send it on to the Attorney General's office. This is obviously not true.
Galovick v. State (1982), Ind.App., 437 N.E.2d 505, reh. denied, is not distinguishable from the case before us. In Galovick, after injury from a swimming accident, notice was sent only to the Attorney General of Indiana within the 180 day period provided by the statute. The same cireumstances exist in the present case. The Majority, after reading the testimony of Gerry Burton concludes that substantial compliance had been met because the Highway Department would have done nothing but send the notice to the Attorney General; therefore, the purpose of the statute had been served. My discussion of Gerry Burton's testimony above shows conclusively that the purpose of the statute had not been satisfied. Substantial compliance was no more satisfied in the present case than in Galovick.
City of Tipton v. Baxter (1992), Ind.App., 593 N.E.2d 1280 does not fit like a glove to justify a reversal of the trial court. First, the claim in Baxter had been partially settled by the insurance company. Gerdes, the claim examiner for the insurance company, had already paid the property damage claim. The only part of the claim remaining was the personal injury damages and the amount of those damages.5 Too, the evidence clearly indicated that the investigation of the accident had been completed. Baxter doesn't fit like a glove because: notice had been given in Baxter; an extensive investigation had been made on behalf of the City; liability had been recognized by the insurance company; and the claim had Been paid in part by the insurance company.
For the above reasons I dissenf. I would affirm the judgment of the trial court.
. Fecher backed a City truck into a vehicle owned by Baxter Heating & Air Conditioning. Derek A. Baxter, a passenger, was injured.