The city of Columbus has succeeded in its efforts to win summary judgment on a woman’s personal injury claim, with the Indiana Court of Appeals reversing in the city’s favor and holding that the woman did not meet the notice requirements under the Indiana Tort Claims Act.
The case of City of Columbus v. Debra A. Londeree and Dan Londeree, 19A-CT-1228, began in January 2016, when Debra Londeree slipped and fell in the icy parking lot of the Foundation for Youth of Bartholomew County. She filed an incident report with FFY and one week later called the city’s Finance Operations and Risk Office.
Colleen Stone, a city employer, told Debra the insurance company would contact her. Debra eventually received a call from Lori Dixon, a representative of Cincinnati Insurance, FFY’s insurer, but Debra believed Dixon was contacting her on behalf of the city. Thus, Debra did not retain counsel because Dixon led her to believe that filing the incident report was sufficient.
Debra and Dixon communicated often, with Debra signing a medical authorization and sending Dixon medical bills for payment. In a footnote, the Court of Appeals said Cincinnati Insurance paid $5,000 in Debra’s medical bills, the maximum available without regard to liability.
But Dixon’s opinion was that FFY had no responsibility for the fall, while the city bore liability because it provided snow removal services in that parking lot. Thus, in November 2016, Dixon mailed a letter saying FFY was neither negligent nor liable. The letter came about four months after the deadline for Debra to file a tort claim notice with the city, which neither she nor co-plaintiff Dan Londeree had done.
Nonetheless, exactly two years after the fall, Debra and Dan sued both FFY and the city for her injuries and claiming loss of consortium for Dan. The city moved for summary judgment on the grounds that the claims were barred by the Londerees’ failure to timely file a tort claim notice, while the Londerees claimed estoppel because Debra “had detrimentally relied on the acts of both the City and FFY in not obtaining counsel and not pursuing a claim until after the time limit under the ITCA had expired.”
The Bartholomew Circuit Court denied the city’s motion on the personal injury claim, finding material issues of fact as to Debra’s understanding of the relationship between FFY and the city and as to whether her reliance on the representations of FFY and the city was reasonable. Thus, there was an issue of fact as to whether the city should be estopped from raising the notice defense, the trial court ruled.
But the trial court also denied summary judgment to Dan on his loss of consortium claim because he did not serve written notice on the city under the ITCA.
The appellate panel partially reversed Thursday, first agreeing with the city that there are no material issues of fact as to whether it should be estopped from raising the notice defense. Judge James Kirsch wrote for the unanimous panel that the city had done nothing to cause Debra to believe formal compliance with the notice requirement was not necessary.
“The purposes of the notice statute include giving a government entity notice to investigate a claim while the facts are still ‘fresh and available’ to acquire reasonable certainty about the facts and circumstances so the government entity may determine its liability and prepare a defense,” Kirsch continued. “… Here, while Dixon acquired some information through her investigation on behalf of FFY, the City did not investigate the claim and acquire the requisite knowledge to satisfy the purposes of the notice statute. Thus, the City did not have actual knowledge of Debra’s fall at FFY.”
Relying on Coghill v. Badger, 418 N.E.2d 1201 (Ind. Ct. App. 1981), the panel held that “the complete absence of communication (after Stone’s phone call) between the City and Debra make it equally, if not more, inappropriate to estop the City from using the notice defense.”
On remand, the COA instructed the trial court to enter summary judgment for the city on Debra’s personal injury claim.
But the appellate court affirmed on Dan’s cross-appeal, which argued the trial court erred in denying his motion for summary judgment on the loss of consortium claim.
“Here, our ruling that the trial court should enter summary judgment against Debra’s personal injury claim is based on a procedural bar, the failure to file a timely notice of tort claim, not a determination on the merits of her personal injury claim. This would appear to allow Dan’s loss of consortium claim to proceed, despite Dan’s understanding to the contrary,” Kirsch wrote. “However, citing Putnam County v. Caldwell, 505 N.E.2d 85, 87 (Ind. Ct. App. 1987), here, the trial court observed that when a spouse is pursuing a loss of consortium claim against a governmental entity, that spouse must file his own notice of tort claim. Because the undisputed evidence is that Dan did not file a notice of tort claim, we affirm the trial court’s entry of summary judgment against Dan’s loss of consortium claim.”
This article was first published by The Indiana Lawyer.
