Donald Miller and Dorothy Miller v. Crawfordsville Electric Light and Power and City of Crawfordsville (mem. dec.)
54A01-1608-PL-2048
| Ind. Ct. App. | Sep 20, 2017Background
- On June 20, 2013, a CELP employee applied a basal‑bark herbicide to trees on property later owned by Donald and Dorothy Miller; several trees subsequently died.
- The Millers met multiple times with CELP representatives in late July and August 2013; CELP offered to remove and/or compensate for damaged trees, but no agreement was reached.
- The Millers did not file a tort claim notice until March 2014 (alleging damage on or about September 13, 2013).
- CELP moved for summary judgment on timeliness under the Indiana Tort Claims Act (ITCA); the trial court held an evidentiary hearing and found the Millers knew of ascertainable damage by August 2013.
- The trial court dismissed the complaint as barred by the ITCA’s 180‑day notice requirement; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Millers’ claim was time‑barred under ITCA § 34‑13‑3‑8 | Millers: two discrete injury events — initial six trees in 2013 and later additional deaths in 2014 — so notice was timely as to the later deaths | CELP & City: all damage traceable to single June 20, 2013 herbicide application; Millers knew of ascertainable damage by Aug 2013 and failed to timely file notice | Held: Claim barred. Some ascertainable damage occurred by Aug 2013; notice filed after 180 days. |
| Whether prior communications with CELP satisfied ITCA filing requirement | Millers: informal discussions and CELP’s offers do not substitute for formal notice and do not toll accrual for later deaths | CELP: Millers were on notice of injury and damage; communications do not excuse failure to file notice | Held: Informal discussions do not satisfy ITCA; actual knowledge + routine investigation does not equal substantial compliance. |
| Whether the injury constituted a continuing or recurring wrong that would reset accrual | Millers: chemical spread caused continuing/new damage over time, making later deaths separate losses | CELP: evidence shows a single application on June 20, 2013 and no subsequent applications | Held: Single event caused damage; not a recurring nuisance — accrual tied to June 20, 2013 event. |
| Whether inverse condemnation claim avoids ITCA notice bar | Millers: (raised on appeal) inverse condemnation could provide alternate relief | CELP: claim not raised below; waived | Held: Millers waived inverse condemnation by failing to plead or raise it at trial. |
Key Cases Cited
- Reed v. City of Evansville, 956 N.E.2d 684 (Ind. Ct. App. 2011) (discovery rule principles for accrual under ITCA)
- Cooper Indus., LLC v. City of S. Bend, 899 N.E.2d 1274 (Ind. 2009) (action accrues when some ascertainable damage has occurred)
- Waldrip v. Waldrip, 976 N.E.2d 102 (Ind. Ct. App. 2012) (application of ITCA notice requirement and accrual analysis)
- Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013) (actual knowledge plus routine investigation does not satisfy ITCA filing requirement)
- Peniel Group, Inc. v. Bannon, 973 N.E.2d 575 (Ind. Ct. App. 2012) (claims barred where plaintiffs knew of contamination years before suit)