The Indiana Court of Appeals issued a decision concerning the Indiana Tort Claims Act in the case of Schoettmer v. Wright (pdf). The plaintiff had been in a collision with a driver employed by the South Central Community Action Program. SCCAP is considered a political subdivision by virtue of IC 34-13-3-22.
A claim was apparently submitted to SCCAP’s insurer, but negotiations did not work out and Schoettmer filed suit. However, the suit was filed without any notice of tort claim having been filed as is required as a prerequisite to suit against a political subdivision under the Indiana Tort Claims Act. The plaintiff protested that the insurer had notice. However, IC 34-13-3-8 requires that notice be served on the governing body of the political subdivision. Putting an insurer on notice is not the same as putting the governing body on notice.
A more interesting question is what difference it might make if the injured party actually and reasonably does not know that the tortfeasor is a political subdivision. The majority hedges a bit, but essentially comes down on the side that it doesn’t make a difference. They talk a bit about how plaintiff’s counsel didn’t diligently learn that SCCAP was a political subdivision and file a notice within a “reasonable time”. But, I think it was probably too late by the time he got involved, and the majority isn’t clear on where this “reasonable time” extension might come from. The dissenting judge would be more inclined to give the injured party a pass from the application of ITCA if ignorance of the political subdivision status was actual and reasonable.
you don’t sue the insurance company. they just pay for everything. seems completely reasonable.
I’m sorry, but the political subdivision obviously had notice of the claim through the insurer. The insurer is the agent for the political subdivision. The notion that this case should be dismissed for failure to comply with the ITCA and to elevate form over substance and ignore the whole intent of the statute – NOTICE to the political subdivision.
I’m also sorry, but I think we have to presume citizens and judges are capable of reading:
“A claim against a political subdivision is barred unless notice is filed with the governing body of that political subdivision.”
It’s not ambiguous. The insurer is not the governing body of the political subdivision. Now, if the statute read, “a claim against a political subdivision is barred unless it has notice, one way or another, of the claim” – well then I’d agree with you and your persuasive use of allcaps.
I do, however, have more sympathy about not knowing this entity was a political subdivision. I can see why a compassionate judge would want to look for a way to mitigate the plain language of the law.
Doug, I’ve written about the abuses of the Notice of Tort Claim law. The law was designed to provide notice to government entities so that they can try to work out resolutions to cases prior to litigation. But gov’t attorneys don’t use it for that purpose. They use it as a “gotcha” device to try to get cases dismissed for passing the deadline.. If South Central were actually upset that they didn’t get notice in advance of the lawsuit so they could work out a resolution, I’d have sympathy for SC. But that’s not what this case is about. It’s about “gotcha” litigation.
The bottom line is that SC’s insurer, SC’s agent, knew all about the case. To suggest this is not good enough…that SC has to be separately notified (and they undoubtedly did know) is to completely undermine the purpose of the Tort Claim Act. The fact is SC’s agent was already working on a resolution of the matter, which is exactly what the notice of tort claim law was designed to do.
The General Assembly should repeal the Notice of Tort Claim requirement. It serves no purpose than to create a very brief statute of limitations. Government attorneys do not use it for the purpose it was intended so it should be repealed.
At least you are finally getting somewhere with your last paragraph. Arguing for repeal is much more defensible than arguing that the court should ignore the unambiguous terms of a statute because you don’t think the language matches the intended policy.
I agree with Paul – the insurance company absolutely would have made SCCAP aware of the claim.
The General Assembly has erected a rickety legal structure that (a) is utterly non-intuitive (who would think a non-profit would be a political subdivision ?) and (b) has the effect of screwing the plaintiff through sleight of hand.
Nowhere on the SCCAP site is the phrase “political subdivision” mentioned.
To compound matters, Indiana law is contradictory:
1) IC 36-1-2-13 says flat out that “Political subdivision” means municipal corporation or special taxing district.
2) IC 34-13-3-22 creates its own definition ! “For purposes of this chapter, the following shall be treated as political subdivisions: (1) A community action agency…”
Does 34-13-3-22 override 36-1-2-13, or vice-versa ? How the h*ll are citizens supposed to be able to make sense of this ? The court stated “It is undisputed that, as a designated community action agency, South Central is a political subdivision pursuant to the ITCA”. Undisputed except by title 36, that is.
As far as statutory construction goes, that doesn’t strike me as arcane at all. Indiana Code 34-13-3 is the Indiana Tort Claims Act. In other words, when 34-13-3-22 says, “for the purposes of this chapter,” the Indiana Tort Claims Act is “the chapter.” That isn’t contradictory, and isn’t particularly confusing.
It’s standard issue drafting.
Oh, come on.
Title 36 (“Local Government”) uses language typical among states that define “political subdivision” – the term means a municipality, etc. Title 36 (36-1-2) is intended to be THE definitive source for terms regarding fundamental legal entities such as Bonds, City, Municipality, Clerk, etc.
Title 34 (Civil Law and Procedure) OMITS the definition in chapter 36, by listing entities not included in 36, yet not including the entities in 36. I’m sure that’s not the intent, but that’s what 34 says. Note that Title 34 (under IC 34-13-3-22) makes two references to Title 36 when it defines a volunteer fire department as a “political subdivision”, but the drafters of Title 34 couldn’t be bothered to make the matter clear.
This is “not not” arcane. The law isn’t supposed to be unfathomable outside the statehouse.
The other problem with Title 34 is that a person or a social services agency cannot be a “political subdivision”, except when the General Assembly is slapping together laws to deter liability. Outside the statehouse, a “political subdivision” is an entity with specific governmental functions. The SSA provides a succinct and sensible definition:
http://www.ssa.gov/section218training/advanced_course_9.htm#3
SCCAP does not have specific governmental functions, it’s a non-profit with a state contract. Title 34 is a sham created to deter liability, and it worked.
Shameful and reprehensible ruling. More outcome-based adjudication.
The injured driver (pro se) got offered about $12K to settle the case approx +249 days after the occurrence by the Insurance Co. Injured driver declined this offer and then hired a Lawfirm.
Lawfirm then files suit for injured driver. Insurance Co.’s attorney (in-house) files Answer. Insurance Co.’s attorney then files Amended Answer asserting the Tort Claims Notice defense.
The insurance company would never have even offered one dime after the 180 days timeperiod if they had at that time (Aug. 2009) known that the NFP was a “governmental” entity. The Insurance Company’s
own attorney did not catch the governmental entity defense on the first Answer filed.
The Pltf’s attorney should ask for transfer to the Supreme Court to
decide whether Judge Crone’s dissenting opinion makes more legal sense.