An unexpected invocation of the Indiana Tort Claims Act (ITCA) led to the dismissal of an auto accident lawsuit in Schoettmer v. Wright, et al. The ITCA requires plaintiffs to serve written notice of a planned lawsuit against the state or one of its political subdivisions within 180 days of the loss. The defendant revealed in an amended pleading that it is a political subdivision of the state of Indiana, and the trial court granted summary judgment based on the plaintiffs’ lack of notice under the ITCA. The Indiana Court of Appeals affirmed the judgment with one dissent.
John Schoettmer sustained injuries in a November 24, 2008 automobile accident with Jolene Wright. Wright was acting in her capacity as an employee of South Central Community Action Program, Inc. (SCCAP) at the time of the accident. SCCAP is a private nonprofit corporation designated by the state as a “community action agency.” This makes it a political subdivision of the state, although SCCAP did not reveal this until several months into the eventual lawsuit.
Schoettmer corresponded with a claims adjuster for SCCAP’s insurer for several months after the accident. He rejected the insurer’s settlement offer in August 2009 and retained counsel. After his attorney could not negotiate a settlement, they filed suit against SCCAP and Wright in October 2010. SCCAP answered in November, and amended its answer with the court’s leave in February 2011 to add an affirmative defense of non-compliance with the ITCA. The trial court granted summary judgment for the defendants, finding that Schoettmer failed to serve the required notice by the 180-day deadline, which would have been around May 24, 2009.
The Court of Appeals rejected Schoettmer’s three arguments for reversing the summary judgment. He first argued substantial compliance with the ITCA through his ongoing communication with the insurance company, which made SCCAP aware of the claim. The court found this insufficient, holding that the insurer was not SCCAP’s agent for notice of claims, and that it was not clear that SCCAP had the same information as the insurer. Schoettmer next argued that SCCAP had waived its affirmative defense by not pleading the ITCA until its amended answer. The court rejected this argument, noting that Schoettmer did not object to SCCAP’s motion to amend it answer. Finally, Schoettmer argued that SCCAP was estopped from asserting the ITCA defense because Schoettmer, during his talks with the insurance company, received no notice indicating that SCCAP was a political subdivision with ITCA rights. The court distinguished a case where it estopped an individual government employee from asserting an ITCA defense, but declined to apply that precedent to a government entity. The court also noted that the plaintiff had a lawyer who should have known to do an ITCA notice.
One judge dissented on the question of estoppel, finding that the plaintiff relied on the insurance company’s representations to his detriment. The majority, the dissenting judge said, placed too much focus on Schoettmer’s lawyer. Some evidence apparently suggested that even SCCAP’s counsel did not know it was a government entity until it sought to file the amended answer. For these reasons, the dissenting judge would have reversed the trial court’s summary judgment.
At Parr Richey Frandsen Patterson Kruse, we help the victims of automobile accidents and their families obtain compensation for their damages and wrongs they have suffered. To schedule a free and confidential consultation with one of our lawyers, contact us today online or at 317-505-1342.
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Indiana Court Allows Son’s Suit Against Father for Auto Accident Injuries to Proceed, Indiana Injury Lawyer Blog, July 19, 2012
Liability of Drivers and Their Employers in Distracted Driving Accidents, Indiana Injury Lawyer Blog, July 13, 2012