dissenting.
I dissent.
This case focuses on two issues, substantial compliance with the notice requirement of the Tort Claims Act (the Act) and estop-pel to assert a lack of compliance with that statutory provision. As to each issue, Judge Staton determines a summary judgment was inappropriate as there exists a question of material fact which must be addressed by the trial judge. I disagree as to both issues, find summary judgment to be appropriate and would affirm the trial court's determination.
Substantial compliance with the notice requirements of the Act is a determination to be made by the court when raised as a defense to a claim. The required notice is a procedural precedent. The judge must make a decision as to whether there has been sufficient compliance to fulfill the purpose of the requirement which is to allow the government to investigate the matter and prepare a defense in a timely manner. City of Indianapolis v. Satz (1978), 268 Ind. 581, 377 N.E.2d 623. To find substantial compliance with the notice requirements, the Indiana law has been interpreted consistently to place an affirmative duty on the injured party to deliver a writing to the governmental entity manifesting the nature of the claim. Satz, supra; Geyer v. City of Logansport et al. (1977), 267 Ind. 334, 370 N.E.2d 333; Coghill v. Badger (1981), Ind.App., 418 N.E.2d 1201, reh. denied, 430 N.E.2d 405 (1982). This duty cannot be fulfilled by relying on an incident report filed by the governmental entity itself. Routine investigation or independently acquired knowledge by the agency has been found to be insufficient to show substantial compliance with the notice requirement. Coghill, supra, 418 N.E.2d 1205. As was stated in Geyer where the Court distinguished the facts of Geyer from those of other cases and determined there was no substantial compliance with the notice statute: ©
"It is to be noted that in each of the foregoing cases the plaintiff attempted *418to render notice to the city and the city possessed a writing of some kind from the plaintiff evidencing the nature of the claim. In the case at bar however the plaintiff has done nothing to give the City of Logansport a notice, which the statute requires. He instead relies upon the city's actual knowledge of the accident and its two investigations within 60 days thereafter.
The purpose of the notice statute is to inform city officials with reasonable certainty of the accident and surrounding circumstances so that the city may investigate, determine its possible liability and prepare a defense to the claim. Aaron v. City of Tipton, supra [ (1941) 218 Ind. 227, 32 N.E.2d 81]. The statute additionally places an affirmative duty upon the plaintiff to deliver a writing to the city manifesting the nature of the claim. To hold otherwise would be to disregard the clear intent and, indeed, express language of the statute." Geyer, supra, 370 N.E.2d at 336.
Thus the duty is on the plaintiff/injured party to give notice of the occurrence. He may not rely on the internal procedures of the agency to satisfy the statutory requirements. To hold otherwise would not only disregard the clear intent of the statute as addressed in Geyer, but would render the requirement useless in cases where a detailed report, as with traffic accidents, or a detailed memorandum, as with internal incident reports, is required of the agency. Therefore, the Jail's report which is relied on by Judge Staton as presenting a question of fact as to compliance with the notice requirement, is, as a matter of law, ineffective as the writing necessary to show substantial compliance.
Nor can there be reliance placed on Al len's alleged letters to Lieutenant Miller of the Lake County Jail to establish compliance with the notice requirement. First of all, the Indiana Supreme Court has already refused to extend the holding in Galbreath v. City of Indpls. (1970), 253 Ind. 472, 255 N.E.2d 225 to allow notice to employees of a department of city government, other than of the legal department as in Goal-breath, to suffice as notice to the particular party as required by the statute. Central to the holding in Galbreath that notice sent to the legal department was sufficient compliance was the determination that the legal department was, by law, an agent for the mayor to whom notice was required by the statute. In Satz the Court refused to find that alleged notice to the police department through a release signed by the plaintiff was sufficient compliance. The Court was unwilling to extend Galbreath to hold that notice to any city department besides the legal department was sufficient. Therefore, any notice to Miller, a Lake County Jail employee, would not be substantial compliance.
In addition, if Allen intended to rely on the alleged letters to Miller to establish compliance with the statute, it was incumbent upon him to present evidence of the letter or letters when the summary judgment motion was before the court. Batchelder v. Haxby et al. (1975), 167 Ind.App. 82, 337 N.E.2d 887, reh. denied, trams. denied (1976). Having failed to present sufficient evidence in response to the motion to demonstrate an issue of fact, he may not now rely on such correspondence as notice.
There being no evidence of writing of any kind, executed by the plaintiff and informing the governmental entity of the occurrence, there is no issue of fact as to substantial compliance and the summary judgment was properly granted.
Judge Staton finds that estoppel is the more applicable theory in this case and presents an issue of material fact which renders the summary judgment improper. Application of the estoppel theory requires consideration of the acts of the defendant rather than the plaintiff whose acts are relevant to substantial compliance. See: Coghill, supra, 418 N.E.2d at 1208, n. 6.
The leading case on estoppel in the context of failure to give notice as required by the Act is Delaware Co. Bd. Comm'rs v. Powell (1979), 272 Ind. 82, 393 N.E.2d 190. The Court held in Powel! there were mate*419rial issues of fact as to whether the defendant was estopped from asserting the lack of notice in compliance with the Act after the defendant's insurer had contacted the plaintiff, admitted liability of the insured, gave assurances of payment for the injury and did in fact pay some $19,000.00 to the plaintiff before asserting lack of notice as required by the statute when the plaintiff tried to settle the case.
However, the present case is more like Coghill, The Coghill Court found the "case is devoid of facts bringing it within the holding in Powell." Coghill, supra, 418 N.E.2d at 1208. In Coghill the plaintiff was injured when the Metro bus in which she was riding struck a car. The defendant sent a representative to Coghill's home to investigate the incident. Plaintiff's attorney initiated a call to defendant's claim adjuster, told him of the case and followed up with a confirming letter which defendant's adjuster acknowledged. In the acknowledgement he invited plaintiff's attorney to contact him when he wished to discuss the case. There was no other contact until plaintiff's attorney submitted medical bills and contacted defendant's adjuster two years later. These constituted insufficient acts on the part of the defendant to present a fact question as to application of estoppel.
In the present case there is even less action by the Jail which could be referred to an estoppel. The defendant made no contact with Allen except to fill out the report of the occurrence. There was no correspondence, payments or settlements. The only action taken was completion of the report and any statement made by Lieutenant Miller which led Allen to believe he would be reimbursed for his loss. These acts are, as in Coghill, simply insufficient, as a matter of law to place into issue the application of estoppel.
As the plaintiff failed to establish the existence of any issue of material fact, the summary judgment was properly granted and the trial court decision should be affirmed.