John W. Schoettmer and Karen Schoettmer v. Jolene C. Wright and South Central Community Action Program, Inc.

is nullified. See Ind.Code proper sent and Karen John W. SCHOETTMER (a.)(7).

§ 31—19—11—1 Schoettmer, Appellants-Plaintiffs, the trial of our conclusion In light v DCS’ motion when it denied court erred . consent, issued the Decree was withdraw by statute. required the consent without and South Central Jolene C. WRIGHT such, and we must Decree is invalid As Inc., Program, Community Action in- remand with the Decree and reverse Appellees-Defendants. inves- completion of the Upon structions. No. 49A04-1108-CT-406. potential adop- Aunt M.R. as tigation of file execute and DCS shall placement, tive Appeals of Indiana. Court regarding and recommendation report its 13, 2012. July M.R., pursuant Aunt placement 31-19-8-5, consent to and its Indiana Code the Fos- by either Aunt M.R. or

adoption The trial court Parents or both.7

ter the evidence then reconsider

shall 11, 2011, hearing on the cross- July together with DCS’

petitions adoption, any newly exe- Aunt M.R. and

report on The trial court

cuted consent or consents. novo to deter- review the evidence de

shall

mine, in the placement is adoptive which child, giving due con- interests

best showing that to the evidence

sideration placed together. siblings

these should be passage not consider the

The court shall quo maintenance of the status

time or only vitiate this

dispositive, which would The trial court shall

appeal and remand. decree that includes adoption

enter support of fact to its decision.

findings remanded with instruc-

Reversed and

tions.

RILEY, J., DARDEN, J., concur. 31—19—9—2(0 than one that execution of more Again, determines Indiana Code Section interests of the child. if consent is in the best file more than one consent it allows DCS to

H9 Baber, Stewart, Jeremy S. & Stewart Carmel, IN, Appellants. for Hutton, J. James The Cincinnati Insur- IN, for Company, Indianapolis, Ap- ance pellees.

OPINION MAY, Judge. appeal

John and Karen sum- Schoettmer mary judgment Wright in favor of Jolene (Wright) Community and South Central Central) (col- (South Program, Action Inc. lectively, “Appellees”). affirm. AND FACTS PROCEDURAL HISTORY 24, 2008, Wright op- On November was erating by employer, a vehicle owned her Central, involved South when she was an accident with was a vehicle John driv- ing. injured John was in the accident. private, nonprofit South Central is a or- provides ganization services low- families, income and at the time of the accident, within Wright acting was scope employment. of her South Central community designated is the State as 13, 2011, funding from On agency April Appellees and receives moved action summary judgment and governments. designated the state and federal evi- both judgment dence that as a matter of law (Cincin- Company Insurance appropriate because Schoettmers did Insurance) liability provides nati insurance requirements the notice Thirty-five days after to South Central. responded, argu- ITCA. Schoettmers accident, 29, 2008, on December ITCA, ing compliance DeVaughan, representa- Heather a claims waiver, estoppel. The trial court held Insurance, a let- tive from Cincinnati sent hearing July on and on July en- indicating prior attempts ter to John summary judgment tered in favor of Ap- to contact him had been unsuccessful and pellees. him that she needed information from

process January his insurance claim. On DISCUSSION AND DECISION 12, 2009, gave DeVaughan John a recorded Our standard of review of a summary informa- detailing personal statement his judgment apply is well settled. We the regarding tion as well as facts the acci- same standard as the trial court and deter DeVaughan advised John that dent. Cin- mine whether genuine there is a issue of claim cinnati Insurance could not settle his material fact and whether moving par the until he was done with medical treatments. ty judgment is entitled to as a matter of 22, April completed On John his medical law. Monroe Magwerks Guar. Ins. Co. v. signed a medical treatments and release 968, Corp., (Ind.2005); 829 N.E.2d 973 Ind. permitting form Cincinnati Insurance ac- 56(C). Trial Rule We construe all facts cess to his medical records and medical and reasonable inferences in favor of the evaluating for the purpose bills his non-moving party and determine whether DeVaughan claim. telephoned John on moving party has shown from the des 18, him August to inform that she had ignated genuine evidence there is no issue received the information she needed to any as to material fact and it is entitled to begin settlement of insurance claim. judgment Dugan as a matter of law. v. subsequently Cincinnati Insurance made a Inc., 184, 186 Mittal Steel USA 929 N.E.2d in settlement offer to John the amount of (Ind.2010). A summary judgment comes $12,868. presumption to us cloaked with a of validi John declined the settlement offer and LLC, ty. Kumar v. Bay Bridge, 903 legal retained in September counsel (Ind.Ct.App.2009), N.E.2d 115 reh’g His counsel and Cincinnati Insurance could denied. negotiate settlement acceptable of-

fer, 6, 2010, and on October Schoettmers summary must affirm a judg We sued Appellees. damages John claimed if it any theory ment can be sustained on bodily injuries for his Karen claimed or Compliance basis the record. Id. damages for loss of consortium. On No- question proper with the ITCA is a of law 29, 2010, answered, Appellees vember and ly determined the court. Irwin Mortg. 3, 2011, on February they amended their Treasurer, Corp. Cnty. v. Marion 816 answer to the affirmative include defense 442 (Ind.Ct.App.2004). N.E.2d A political that South is a Central subdivision judgment noncompliance based on with the governed by the Indiana Tort Claims Act subject negative ITCA is to review aas (ITCA), judgment, which has notice with only and we will reverse if it is which comply. contrary Schoettmers did not to law. v. Wayne Porter Fort (Ind.Ct. summary Appellees granting erred Sch.,

Cmty. Schoettmers’ failure to judgment based on denied. App.2001), trans. requirements with the notice that, designated as a undisputed It is ITCA. is agency, South Central community action to the pursuant political subdivision Compliance 1. Substantial § Ind.Code 34-13-3-22. See ITCA. against tort claims ITCA bars never they concede Schoettmers of the claim is unless notice subdivision attempted give or notice gave notice body politi- of that governing filed Instead, claims to South Central. days after the within 180 cal subdivision they assert their communications 34-13-3-8(a). § loss occurs. Ind.Code insurer, liability South Central’s in a short The notice must describe Insurance, substantially complied with the facts on which statement plain disagree. notice provisions. ITCA and must include claim is based that notice is It is well settled brought which about the circumstances loss, substantially complies if with loss, time it the extent of the the sufficient the occurred, the statute. requirements the names the content of and the loss place known, Indianapolis, if the 931 persons Boushehry City all involved v. of of 892, resi- damages sought, (Ind.Ct.App.2010). of and the amount N.E.2d 895 the claim at not a person making compliance of the of substantial is dence issue fact, time of the loss and at the de the time of of but is a fact-sensitive question filing the notice. of the notice purpose termination. Id. The requirement provide governmen is to the § notice must 34-13-3-10. The Ind.Code investigate to entity opportunity tal the delivered in writing be in and must be a claim so that it surrounding the facts mail. by registered or certified person or liability prepare and may determine its § Ind.Code 34-13-3-12. Corp., 816 N.E.2d at defense. Irwin Mart. provi Compliance with the notice compliance focuses on 446. “Substantial procedural prece of the ITCA is a sions itself, nature the notice and is con the of trial prove the must and the plaintiff dent form, with the extent to which the cerned trial. prior must determine to court content, complies timing and of the notice 376, Alexander, v. 876 N.E.2d 383 Brown of the notice stat requirements If a (Ind.Ct.App.2007), trans. denied. Hosp., v. Mem’l ute.” McConnell Porter notice, give required not the plaintiff does 865, (Ind.Ct.App.1998), 698 N.E.2d 868 may responsive raise in a the defendant compliance denied. Substantial trans. of noncom pleading an affirmative defense the proceed an action to when permits Id. at If the defendant pliance. 383-84. notice, provide to attempted claimant has so, plaintiff the shifts to the to does burden the fallen short of the strictures of has Id. prove compliance. statute, and, appro the yet, supplied has Nevertheless, all technical violations entity with sufficient priate governmental v. the are fatal to a claim. Allen statute information claim. investigate to the Jail, 414-15 Cnty. Lake Sys., Reg’l v. Howard Health Smithson courts have (Ind.Ct.App.1986). “Indiana (Ind.Ct.App.2009). N.E.2d 268 908 context, theories of recognized, in this compliance a substantial waiver, rejected estop- compliance, and substantial Brown. claim similar Schoettmers’ now examine these pel.” Id. at 415. We injuries from personal Brown claimed to determine if the trial court three factors 123 municipal vehicle accident with a provision motor of the notice was met or to elimi light utility requirement truck. She had nate the power given that notice be to the utility’s various communications subdivision under carrier, 865; insurance but she filed no tort ITCA. Id. at Hasty Floyd v. see (Ind.Ct. Hosp., Mem’l utility claim notice. The and its N.E.2d insurance App.1992) (holding that notice gov carrier were aware of the details of the to the carrier, entity’s ernmental insurance op as resulting injuries, investigat- accident and posed itself, to notice to accident, entity property ed the settled the dam- insufficient to establish substantial claim, compli age portion engaged ance). with the claimant. discussions Neverthe-

less, utility’s we noted the knowledge Schoettmers made attempt no to the claim and the opportunity investi- with the notice of the ITCA. gate satisfy were insufficient to the pur- They never claims, filed a notice of their pose of the requirements. ITCA notice adequate or inadequate, with South Cen- 876 N.E.2d at 384. We noted we have tral, Insurance, any or other interpreted the notice statutes to allow entity. They maintain Cincinnati Insur- compliance when a claimant ance had actual knowledge of their claims steps has taken affirmative notify and assert such knowledge should be governmental entity, but because, determined “we viewed as notice to South Central compliance cannot find substantial liability insurer, when as South Central’s Cincin- steps the claimant took no “may whatsoever to nati Insurance properly be viewed as ” comply agent with the notice statute.” Id. at of South (Appel- Central.... 13.) lants’ Br. at Accordingly, 383. we The summary affirmed Schoettmers cite no legal authority judgment utility. supports for the that the proposi- tion a governmental entity’s that liability Brewer, Similarly, in Fowler v. 773 agent purposes insurer is its for of receiv- (Ind.Ct.App.2002), N.E.2d 858 de- trans. ITCA,1 ing pursuant notice to the and the nied, the Fowlers sent a letter to the fire decisions addressed above support op- the department’s company insurance indicat- posite conclusion. ing they damages would seek sustained in a car a firefighter. accident with Because acknowledge Cincinnati Insur the letter was not filed with the governing ance knowledge had actual of much of the body political of the subdivision and did ITCA, required information by the but form, content, not comply with the and nothing in the record indicates South Cen ITCA, timing requirements of the we held tral had the Regard same information. there compliance was not substantial with less, notice, attempt absent an at filing the requirements. ITCA notice Neither knowledge actual on the part of the insur department’s the fire knowledge actual nor governmental entity er the is insuf and/or the willingness insurer’s to settle claim the ficient as a matter of law. cannot “[W]e was sufficient to indicate that purpose the find compliance when the City 1. city legal department, Schoettmers direct us to Galbreath v. to may- the but not the of Indianapolis, city 253 Ind. 255 N.E.2d required. 225 or or clerk as the ITCA Our (1970), authority proposition supreme as their city attorney that court held the had the liability agent political authority accept insurer is an of a to notice on behalf of the purposes receiving mayor. subdivision for of notice Id. at 255 N.E.2d at 229. Ac- pursuant cordingly, substantially to the ITCA. Galbreath neither Galbreath had com- supports proposition. plied provisions. stands for nor that with the notice at Id. timely Galbreath submitted a tort claim notice 255 N.E.2d at 230. trial court its com not now assert the abused steps whatsoever to claimant took no Brown, leave granted discretion when it to amend. ply notice statute.” with the circumstances, Appellees timely As asserted affirma- the at 383. Under N.E.2d defense, tive the doctrine of waiver does substantially comply did not Schoettmers apply. not of the ITCA.2 provisions with notice the Estoppel 3. 2. Waiver the Finally, next Schoettmers contend assert South Schoettmers applied have the trial court should doctrine its affirmative defense. Central waived they estoppel of to South Central’s claim focuses not on theory of waiver provisions with the notice comply on the did but defendant’s plaintiffs notice theory estoppel An focuses plaintiffs non ITCA.3 timely raise failure to made the defendant representations on compliance with the statute as defense. agents plaintiff n. or its that induce the Allen, Appellees at 415 to no plaintiff reasonably to believe formal did their affirmative defense not assert Allen, is 496 N.E.2d at unnecessary. tice comply failure to notice answer; that, argue during 415 n. 3. original in their rath Schoettmers the ITCA telephone an John’s conversations er it in their amended several they asserted represen Insurance claim pleading An amended relates back swer. tative well as in written DeVaughan, when a claim or as original pleading correspondence DeVaughan, nev pleading in the amended she defense asserted been er Schoettmers that South Cen out of an occurrence that had informed arises Fowler, they or original set tral was a subdivision pleading. forth in with the ITCA notice (citing 773 N.E.2d at 862 Ind. Trial Rule needed to 15(C)). requirements. Consequently, court has Schoettmers The trial broad discre argue, failing tion were “lured into permit pleadings, they amendments to strictly and should be unless with the ITCA as result given comply leave to amend a the of the and prejudice oppos amendment would the aforementioned communications ing [DeVaughan’s] early and continuous will party. Id. ingness claim.” (Appellants’ to settle [the] cannot establish Schoettmers 15.) Br. disagree. at We prejudice the time limit 180-day because signifi tort them to file their claim notice had We have addressed “‘the long legitimate when South cance of com passed plaintiffs since Central filed and ignorance plete its not ob that a defendant is a first answer. Schoettmers did ject as that Appellees’ government employee ignorance to motion for leave to plaintiffs comply do relates the failure to amend answer Schoettmers to that, City holding compliance recognize Tipton requires 2. in Bax v. that substantial of ter, (Ind.Ct.App.1992), an 593 N.E.2d 1280 at a take minimum that a claimant affirmative panel other of this Court found substantial steps notify governmental entity, the better compliance quite in circumstances similar reflects of Indiana the current state law. where, presented although no those here no attempted, governmental entity’s tice was Brown, briefly Estoppel mentioned in was knowledge actual the accident insurer "had of argued only compli- but Brown days happened, several after it conducted Accordingly, ance. we did not consider investigation, willingness indicated a application estoppel under those facts. however, believe, Id. at 1282. We settle.” Brown, at 382. 876 N.E.2d Brown, opinion in and its more recent ” Szarmach, defenses, v. Greg Gregor with the ITCA.’ filed affirmative none of or 240, 242 (Ind.Ct.App.1999) 706 N.E.2d which indicated he a government was em- Schafer, F.Supp. v. (quoting ployee Baker at the time of the accident. (S.D.Ind.1996)). Indeed, 171, 173 where interrogatory, In an Gregor stated he in employee the course of government was performing gov- duties related to his disguises acts in a manner that his duties ernment employment. He amended his gov not reveal his status as a or does answer to Szarmach’s complaint and employee, may estopped ernment he be summary judgment moved for on the asserting the ITCA as a bar to a ground he was immune from Szarmach’s actually if the plaintiff claim and reason government tort claim as a agent because ably knowledge government lacks Szarmach did not comply with the notice employee’s par status. Id. at 243. “[A] provision of the ITCA. ty may subterfuge not utilize to bar a claim for failure to with the no The trial court Gregor’s denied tice of the ITCA.” Davidson v. motion on the estoppel, basis of and we Perron, 34 (Ind.Ct.App. affirmed:

1999), trans. denied. a government employee [W]here in the designated

The evidence indicates course of his duties acts a manner Wright gave Schoettmer the insurance in- which disguises or fails to reveal his Central, employer. government formation for South her status as a employee, he may estopped The letters Cincinnati Insurance sent be from asserting the before Indiana 180-day Schoettmers and after the Tort Claims Act as a bar to a passed plaintiff time limit had claim if the policy- actually indicated and reason- holder “South Community ably was Central Ac- lacks knowledge government 79.) Program.” (App. employee’s tion at Gregor status. Because was letters not wearing any government Cincinnati Insurance sent to Scho- kind of uni- policyholder ettmers’ counsel listed the form and driving personal as was his own (Id. 83.) vehicle, “SCCAP.” at John in an which display stated did bear or any identification, affidavit: “That on government or about December when he 20081 received a letter from Heather De- involved a collision on a public Vaughan thoroughfare, who identified her self as a provided at which time he [sic] representative claims concerning of Cincinnati Insur- information his own personal ance, the company coverage insurance for South automotive insurance but did Community Program.” Central Action not indicate that the accident occurred (Id. 75.) at engaged while he was in the course of business, government negligence a claim similar, Gregor, factually while is distin- against him is not barred for failure to guishable. Gregor, driving who was in the have filed notice with the government employment course of his with the Lake entity employing him within days County Department of Children and Fami- the accident. Services, ly was involved in a traffic acci- Gregor, contrast, dent with Szarmach. By Id. at 243. Wright, South Central, gave at 241. He personal Szarmach his and Cincinnati Insurance never insurance information. coun- misrepresented identity Szarmach’s policy- insurer, Gregor’s personal sel contacted holder Wright employee or the fact was an indicating the intent to file a claim. Over of South engaged Central in South Cen- later, year a Szarmach filed a tort claim. tral’s business at the time of the accident. waiver, estop- and compliance, know be did not Even if Schoettmers we affirm the trial court. Accordingly, pel. that South Cen they obtained counsel fore entity, his counsel governmental tral was a BROWN, J., concurs. Affirmed. learned, through due dili have

should Ind. status. See gence, of South Central’s CRONE, J., separate dissents (“A lawyer 1.3 Rule Professional Conduct opinion. diligence and act with reasonable shall CRONE, Judge, dissenting. client.”) In in a promptness representing Davidson, we held “a 716 N.E.2d at 34-35 conclusion agree majority’s I diligence giv exercise due plaintiff must even the Schoettmers did not that because the equitable notice after ing tort claims their claims to attempt give notice of a valid basis operate as grounds cease Central, have they cannot be said to South Davidson, delay.” Id. In causing substantially complied with the notice re- de allegedly Elkhart wrote an Mayor of Further, I agree of the ITCA. quirements local letter to the editor of the famatory did not waive its affir- that South Central used someone else’s name. newspaper, but noncompliance. of such mative defense identity true of the author was The However, I that South Central believe year known until a later. estopped asserting be- should noncompliance with the Schoettmers’ Mayor learned the When Davidson were unaware of The Schoettmers ITCA. letter, a tort claim notice wrote the he sent status, governmental South Cin- Central’s one month. City to the of Elkhart within representations made cinnati Insurance his defamation claim five He amended re- justifiably which the Schoettmers upon later, the time for though months even lied, purpose requirement of the notice filing passed. notice had ITCA clearly accomplished, of the ITCA was notice within a held Davidson “filed his prejudice a lack of to South there was learning govern- a reasonable time” after Therefore, respectfully I must Central. defamatory ment wrote the employee dissent. Id. at 35. One month was statements. that, it fell within the record is clear at the time of “reasonable time” because accident, by the John had no idea 180-day requirement dictated Central, South Wright’s private employer, Id. at 35 n. 5. ITCA. community statutorily designated was a not know South Even if Schoettmers did thus, a program action subdi- governmental entity time Central was purposes vision for the of the ITCA. Due deadline, counsel, to meet the ITCA initiated In- to the contact year them for a before a represented who expressed willingness and its surance filed, have discover- tort claim was should claim behalf of South settle John’s on Cen- in time to file an ed South Central’s status tral, rely it was reasonable for John to on time.” notice within a “reasonable ITCA nothing that else representations those necessary preserve pursue his was CONCLUSION lay- any did what reasonable claim. John have done. He did not seek grant- person not err when it would The trial court did lawsuit, file a but summary judg- to retain counsel or to Appellees’ ed motion for supply continued to the information timely simply ment. did not file Schoettmers notice, All requested by ref- South Central’s insurer. may they nor find ITCA while, him, the 180- in of unbeknownst uge from their failure the theories

127 day ticking away. remain, clock was material fact and the Schoett- misleading behavior was Insurance’s mers should be allowed to present proof of complete ignorance regarding John’s estoppel to the trial court. See Delaware Powell, governmental County 82, 85, South Central’s status was v. 272 Ind. (1979) (when 190, reasonable. N.E.2d acts and conduct of the defendant or his agents Although majority seems to concede have purposes established that the of the actually that the Schoettmers and reason- provisions ITCA notice have been satis- ably knowledge lacked that South Central fied, summary judgment is inappropriate was a subdivision until well after as these acts and conduct could create an 180-day period passed, notice had estoppel). majority makes much of the fact that the eventually Schoettmers did retain counsel

and concludes that counsel should have

learned, through diligence, due of South governmental

Central’s status and filed a

tort claim notice a “reasonable time” equitable grounds

after “the cease to oper- delay.” ate as a valid basis for causing See BROTHERHOOD MUTUAL INSUR Davidson, Here, 716 N.E.2d at 34-35. Subrogee ANCE COMPANY as however, I equitable do not think the Plymouth Wesleyan Church, Appel grounds causing delay operate ceased to lant-Plaintiff, finally until South acknowledged Central governmental and revealed its v. status its amended answer to the Schoettmers’ com- CONTRACTING, INC., MICHIANA Indeed, plaint. a reasonable inference can Refrigeration, Inc., McGrath John D. be drawn that counsel for South Central McGrath, Joseph A. Dzierla and Asso wholly unaware of his own client’s ciates, Shambaugh Son, Inc. and & governmental February status until L.P., Appellees-Defendants. 2011, when South finally Central asserted No. 50A03-1111-CT-518. such status when it filed its motion for leave to file an amended answer to include of Appeals Court of Indiana. the affirmative defense of the Schoettmers’ July 2012. failure to with the notice I ITCA. would not hold the Schoett- Rehearing Sept. Denied higher mers’ counsel to a standard of due

diligence regarding discovery of South governmental

Central’s status than I

would South Central’s own counsel. upon

Based foregoing, I would re- summary judgment

verse in favor of South hold, law,

Central and as a matter of

South estopped asserting Central is

the Schoettmers’ noncompliance with the

notice provisions of the as a ITCA bar least, very

their claims. At the desig-

nated evidence genuine reveals that issues

Case Details

Case Name: John W. Schoettmer and Karen Schoettmer v. Jolene C. Wright and South Central Community Action Program, Inc.

Court Name: Indiana Court of Appeals

Date Published: Jul 13, 2012

Citation: 971 N.E.2d 118

Docket Number: 49A04-1108-CT-406

Court Abbreviation: Ind. Ct. App.