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Notice Under the Tort

Shoettmer v. Wright (Ind. Ct. App. July 13, 2012)

This case addressed the question of whether communicating notice of a claim against a governmental agency to that entity’s insurance company constitutes sufficient notice under Indiana’s tort claims statute. The Court of Appeals held that it did not and therefore affirmed summary judgment in favor of the defendant. This aspect of the holding was consistent with established precedent holding that an insurance company is not a party’s agent for purposes of service and notice and with precedent regarding notice under the tort claims act. This case therefore serves as another reminder to party’s with potential claims against governmental entities that failure to provide the notice required by statute will lead to forfeiture of the claim.

The Court next held that the defendant did not waive the requirements of the tort claims act. This holding is a fairly straight-forward application of the waiver doctrine.

The interesting question raised by this case was plaintiff’s claim that the defendant should be estopped from asserting the defense based on the defendant’s insurer’s failure to tell the plaintiff that the defendant was a governmental agency. The majority rejected this conclusion and went on to state that even if the plaintiffs themselves could be excused from failing to discover that the defendant was a governmental agency, the plaintiffs’ attorney was not excused. The majority noted that the plaintiffs were represented by an attorney for a year before the claim was filed and concluded this period of time was not “reasonable” and barred the estoppel defense. Judge Crone dissented, believing that estoppel barred the defense of failure to comply with the tort claim statute and that, at the very least, a question of fact existed as to whether estoppel existed.

This case demonstrates the importance of determining early on whether a defendant is a governmental agency subject to the tort claims act. Often, as in this case, the defendant’s government status will not be obvious. Plaintiffs’ attorneys should make checking into a defendant’s status one the first tasks when engaging to represent a client. Defendants’ attorneys should also determine early on whether their client qualifies for the protections of the tort claims act.

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