Brown v. Alexander

DARDEN, Judge,

dissenting.

I respectfully dissent.

I recognize that there may be a “general rule” whereby we consider whether a claimant has substantially complied with the notice requirement of the ITCA by looking at “the efforts made by the claimant to notify the governmental entity of the claim.” Slip Op. at 10. I also recognize that the facts indeed show that both Brown and her first attorney failed to make such efforts. However, given the purpose of the notice statute, I believe that the application of the general rule unfairly elevates form over substance in this case. I further believe that to affirm the grant of summary judgment to P & L on Brown’s complaint would result in a miscarriage of justice under the circumstances presented.

In Galbreath v. City of Indianapolis, 253 Ind. 472, 255 N.E.2d 225 (1970), the Supreme Court of Indiana held that “the purpose of the notice statute” is “to inform the [officials of the governmental entity] with reasonable certainty of the time, place, cause and nature of the accident and the general nature and extent of the injuries so that the [governmental entity] might investigate all facts pertaining to its liability and prepare its defense, or adjust the claim.” Id. at 253 Ind. at 477, 255 N.E.2d at 228. It is undisputed that here, the governmental entity — P & L — had all of this information well within the statutory 180-day period. Further, based on the records of P & L’s insurer, reflecting information from authorized P & L personnel, “its liability” had been acknowledged from the outset. Id.

As we stated in City of Tipton v. Baxter, 593 N.E.2d 1280, 1282 (Ind.Ct.App.1992), “where the purpose” of the notice statute “has been satisfied, there may be substantial compliance.” We found such substantial compliance in Baxter, wherein the City’s insurer “had actual knowledge of the accident several days after it happened, conducted an investigation, and indicated a willingness to settle.” Id. at 1284. The facts in Baxter are quite similar to those here. Within days of an accident between a vehicle driven by a City *385employee and one in which Baxter was a passenger, the City’s insurer received a loss report; it assigned the matter to a claims examiner, who in turn engaged an investigator. The investigator contacted Baxter and inquired whether he “had completed his medical treatment and had all of his medical bills” and to discuss potential resolution of his claim. Id. at 1280. Baxter responded that he “was still having medical problems” and “was not ready to discuss resolving his claim.” Id. at 1281. Within three months of the accident, counsel for Baxter began discussing resolution of the claim with the investigator. Within four months of the accident, the examiner processed payment by the insurer for the damage to Baxter’s vehicle. However, when Baxter’s counsel subsequently sought an admission of liability, the examiner advised that the insurer was “unable to honor any loss” presented by Baxter due to the failure to comply with the 180-day notice requirement. Id. at 1281. A complaint was filed, and the City moved to dismiss based on Baxter’s failure to provide the statutory tort claim notice. The trial court denied the City’s motion, and the City appealed. We held that the facts presented to the trial court supported the conclusion that there had been substantial compliance with the notice statute.

While the facts before us do not fit neatly within the “general rule” as to the “substantial compliance” doctrine with respect to the tort claims notice statute, the facts here do substantially mirror those of Baxter. Further, as we noted in Baxter, Indiana’s Supreme Court has emphasized that the notice statute should not be “a trap for the unwary where” the purpose of the statute “has in fact been satisfied.” Galbreath, 253 Ind. at 480, 255 N.E.2d at 229 (emphasis in original). As already stated, because P & L possessed the information which the statute mandates to be provided, the purpose of the notice statute had in fact been satisfied here. Accordingly, I would reverse the trial court’s grant of summary judgment to P & L and remand to the trial court for a trial on the merits.