IN SD – Communication with gov’t entity’s insurer not sufficient to provide “notice” under ITCA
The plaintiff, a pedestrian, was struck by a school bus driven by Spark Wiggington in the course and scope of his employment with the New Albany-Floyd Consolidated School Corporation. Indiana Insurance, whose policy covered the School Corporation, began its investigation six days later. The plaintiff then retained counsel from Kentucky who corresponded with Indiana Insurance on multiple occasions and denied the claim. These same attorneys, however, neglected to file a tort claim notice.
The plaintiff then filed suit through an Indiana attorney and the case was removed the federal court. There Judge Sarah Evans Barker entertained the defendants’ motion for summary judgment on the issue that the case should be barred failure to comply with the notice provisions of the ITCA. The plaintiff cited the case of City of Tipton v. Baxter, 593 N.E.2d 1280 (Ind. Ct. App. 1992), wherein there had been,
substantial compliance with the Indiana Tort Claims Act – notwithstanding the claimant’s complete failure to provide a written tort claim notice – because the government entity’s liability insurer had actual knowledge of and promptly investigated the accident.
The problem with Plaintiff’s argument is that City of Tipton v. Baxter was overruled by the Indiana Supreme Court in Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013). Indeed, in Schoettmer, Indiana’s highest court held that under Indiana law, a claimant’s communications with a government entity’s insurer, absent anything more, even where the insurer investigates the accident or occurrence, does not create substantial compliance with the notice requirement of the Indiana Tort Claims Act. Id. at 708.
Thus, summary judgment was affirmed.
In all likelihood, a legal malpractice claim will (and likely should) follow. What will be interesting there is whether it could be considered malpractice when suit was filed in 2012, well before the Schoettmer decision. The lesson here is that it is best to comply with the letter of the statute rather than court opinion, since change in the latter bears no safeguard.