The Court of Appeals reversed the trial court in the case of City of Indianapolis v. Bushman (pdf). This case centered around the proper application of IC 34-13-3-10 which, as a prerequisite to a lawsuit against a political subdivision based on a tort, requires the person to provide the political subdivision with a notice of the person’s intent to sue. The notice must:
describe in a short and plain statement the facts on which the claim is based. The statement must include the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice.
In particular, the court was concerned with the requirement that the statement include “the extent of the loss.” The plaintiff in this case had timely provided a notice, but unfortunately for her, the notice said:
Damage: Rear Bumper and side panels damaged, see estimate from Sam Swope. No injuries.
Claim: $960.99
The notice was, therefore, insufficient to allow the plaintiff to proceed with a lawsuit for personal injuries.
To my knowledge, there is no penalty for submitting notices of tort claim that that make wild claims of injury with no basis in fact. This demonstrates that a plaintiff can suffer if he or she is too conservative with assessments of injury. I expect future notices of tort claim to more often include kitchen-sink allegations of injury, regardless of the plaintiff’s honest assessment.
The opinion does not clearly state whether the Plaintiff prepared
her own homemade Notice to the governmental entity (which shouldn’t surprise anyone these days with all the DIY litigants that
now exist in spite of all the TV personal injury solicitation ads) who then later saw an attorney or whether an attorney attempted to prepare the Notice for her at the outset.
Regardless, this case means that a governmental entity isn’t required to be a mindreader nor to conduct much of an investigation when the
Notice provider downplays the injuries/damages suffered.
Given my generally positive impression of the attorney and firm involved, the promptness with which the Notice was filed, and the fact that she did not realize she was injured until some time later, I would guess that the Notice was prepared by the Plaintiff. I can’t imagine that even the dimmest personal injury attorney would explicitly disclaim a cause of action for physical injury.
This is a wild-ass guess, but I’d suggest what could have happened is that she turned her property damage claim over to her automobile insurer that filed the notice on the property damage to protect its subrogation claim against the City. Later on, the plaintiff has nagging injuries and seeks out the personal injury firm after the 180 days has expired, and the PI firm tries to get around that by piggy backing on the notice of tort claim filed by the subrogated automobile insurer.
Like I said, wild-ass guess.
Your assessment sounds reasonable, especially considering the phrasing of the statement of extent of loss. The statement sounds like something that an insurance person would write.
Damage: Rear Bumper and side panels damaged, see estimate from Sam Swope. No injuries.
Claim: $960.99
You are wise in your youth.
Yep. That makes more sense than a layperson knowing of the tort claim notice requirement and filing one within a few days.
If my hypothetical is correct, and the notice was the work of an insurance company, I wonder if a plausible claim could be made against the insurer that it affirmatively impaired her personal injury claim by unnecessarily adding “no injuries.”
Probably not since she didn’t apparently make an effort to notify the City of any personal injuries.