Opinion
No. 10A01-1012-CT-639
09-19-2011
VERNON D. SCOTT, Appellant-Plaintiff, v. DAVID S. MERCHANT, Appellee-Defendant.
ATTORNEY FOR APPELLANT : ANTHONY K. FINALDI Ferreri & Fogle Louisville, Kentucky ATTORNEYS FOR APPELLEE : D. TIMOTHY BORN KEITH E. ROUNDER Terrell, Baugh, Salmon & Born Evansville, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
ANTHONY K. FINALDI
Ferreri & Fogle
Louisville, Kentucky
ATTORNEYS FOR APPELLEE:
D. TIMOTHY BORN
KEITH E. ROUNDER
Terrell, Baugh, Salmon & Born
Evansville, Indiana
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Jerry F. Jacobi, Judge
Cause No. 10D02-0909-CT-1098
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAKER , Judge
Appellant-plaintiff Vernon D. Scott appeals the trial court's order granting summary judgment in favor of appellee-defendant David S. Merchant. More particularly, Scott argues that he substantially complied with the notice requirements under the Indiana Tort Claims Act (ITCA). Additionally, Scott contends that Merchant is not exempt from personal liability as an employee of a governmental entity. Finding no error, we affirm.
Ind. Code § 34-13-3 et seq.
FACTS
On September 22, 2007, Merchant was on duty as a police officer for the Town of Clarksville. Merchant's shift had commenced at 10:00 p.m.; and sometime around 11:00 p.m., a pedestrian alerted Merchant to a motor vehicle accident that had occurred in the general area. Merchant was looking for this accident when he collided with Scott's vehicle on Eastern Boulevard.
Although Traveler's Insurance was the insurance carrier for the Town of Clarksville, on October 11, 2007, Scott's counsel sent a letter to NIP Group (NIP) that is based in New Jersey and develops and manages business insurance programs underwritten by major insurers. The letter essentially stated that Scott received injuries in the September 22 accident and enclosed a copy of the police report. The letter also stated that Scott would keep NIP informed of his progress.
Scott filed a complaint on September 21, 2009, one day prior to the end of the expiration of the statute of limitations, alleging that Merchant's negligence resulted in his injuries. Merchant filed his answer on November 19, 2009, denying that he was negligent and asserted two affirmative defenses. First, Merchant maintained that as an employee of the Town of Clarksville, acting in the scope of his employment, he could not be held personally liable for Scott's alleged injuries. Second, Merchant asserted that Scott has failed to comply with the provisions of the ITCA.
Merchant filed his motion for summary judgment on August 13, 2010. On October 22, 2010, Scott filed his motion for leave to file an amended complaint seeking leave to add the Town of Clarksville as a defendant. The trial court granted Scott leave on October 25, 2010.
On November 15, 2010, the trial court held a hearing on Merchant's motion for summary judgment. At the hearing, the Town of Clarksville also requested summary judgment. On November 16, 2010, the trial court issued its order granting summary judgment in favor of Merchant; on December 21, 2010, it issued its order granting summary judgment in favor of the Town of Clarksville. On December 13, 2010, Scott filed a notice of appeal from the trial court's order granting Merchant's motion for summary judgment.
DISCUSSION AND DECISION
I. Standard of Review
Summary judgment is appropriate only where there are no issues of material fact, and a party is entitled to judgment as a matter of law. Brunton v. Porter Mem'l Hosp. Ambulance Serv., 647 N.E.2d 636, 638-39 (Ind. Ct. App. 1994). The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact. Campbell v. Criterion Group, 613 N.E.2d 423, 428 (Ind. Ct. App. 1993). On appeal, summary judgment will be affirmed on any theory or basis designated to the trial court. Fawley v. Martin's Supermarket's, Inc., 618 N.E.2d 10, 12 (Ind. Ct. App. 1993).
Generally, on appeal, we are bound by the same standard as the trial court, namely, we must consider all matters which were designated at the summary judgment stage in the light most favorable to the nonmoving party. Campbell, 613 N.E.2d at 428. However, compliance with the notice provisions of the ITCA '"is a procedural precedent which the plaintiff must prove and which the trial court must determine prior to trial.'" Hupp v. Hill, 576 N.E.2d 1320, 1323 (Ind. Ct. App. 1991) (quoting Ind. Dep't of Highways v. Hughes, 528 N.E.2d 468, 471 (Ind. 1991)). Accordingly, judgments based on compliance with ITCA are subject to review as negative judgments, which we will reverse only if contrary to law. Id. at 1324.
II. Notice
Scott argues that he gave sufficient notice by substantially complying with the ITCA. More particularly, Scott points to the October 11, 2007, letter notifying NIP of his injuries.
Indiana Code section 34-13-3-8 (Section 8) of the ITCA provides that "a claim against a political subdivision is barred unless notice is filed with . . . the governing body of that political subdivision . . . within one hundred eighty (180) days after the loss occurs." Likewise, Indiana Code section 34-13-3-10 (Section 10) of the ITCA sets forth the information that must be included for a tort claim notice to be sufficient under the Act, including "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 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."
We find Fowler v. Brewer, 773 N.E.2d 858 (Ind. Ct. App. 2002), which addressed whether the plaintiffs had substantially complied with the notice requirements of the ITCA, instructive in the instant case. In Fowler, the plaintiffs' vehicle was struck, and they sustained injuries as the result of the defendant's failure to yield at a stop sign. Id. at 859-60. The defendant's vehicle was equipped with a blue flashing light, which was required for all volunteer firefighters when responding to an emergency call. Id.
At the accident scene, the defendant informed the plaintiffs that he was responding to an emergency call, but the accident report did not reflect that he was acting in his capacity as a volunteer firefighter at the time of the accident. Id. at 860. The defendant's vehicle was registered to and insured through his employer. Id. The vehicle was insured by Cincinnati Insurance Company. Id.
The plaintiffs notified Cincinnati Insurance Company of their intent to pursue a claim for personal injuries and negotiations were attempted but unsuccessful. Id. The plaintiffs then filed a complaint against the defendant, and the defendant filed an affirmative defense that the plaintiffs had failed to file a notice pursuant to the ITCA. Id. The plaintiffs responded that they had substantially complied with the Act. Id.
On appeal, the Fowler Court explained that "[s]ubstantial compliance with [] notice requirements is sufficient where the purpose of the notice requirement is satisfied." Id. at 863. More particularly, the "purpose of the notice requirement is to inform state officials with reasonable certainty of the accident or incident and surrounding circumstances so that the state may investigate, determine its possible liability, and prepare a defense to the claim." Id. To be in substantial compliance with the Act, the notice must also "advise of the intent of the injured party to assert a tort claim." Id.
The Fowler Court determined that the plaintiffs' letter to Cincinnati Insurance Company failed to substantially comply with the notice requirements of the Act. Id. at 865. The panel reasoned that the letter failed to satisfy the requirements of Section 10, inasmuch as it failed to provide the amount lost, damages sought, the circumstances of the accident, the time and place of the accident, and the names of persons involved. Id. at 864-65. Additionally, Section 12 of the ITCA required that the notice be delivered in person or by registered or certified mail, and there was no indication how the plaintiffs had delivered the letter to Cincinnati Insurance Company. Id. at 865.
In this case, we initially note that Scott failed to strictly comply with the notice requirements of the ITCA. Neither the Town of Clarksville nor Merchant has any record of being served with a tort claim notice, and Scott failed to provide a tort claim notice in response to discovery requests served on him by Merchant. Appellee's App. p. 37-38; 68.
As for whether Scott substantially complied with the notice requirements of the ITCA, the October 11, 2007, letter to NIP stated:
Please be advised that the undersigned represents the interests of Vernon D. Scott with respect to the injuries that he received in the accident which occurred in Jeffersonville, Indiana on September 22, 2007.Appellee's App. p. 79.
Enclosed for your reference is a copy of the police report if you do not already have one. Mr. Scott is continuing to treat for the injuries that he received. He has multiple broken ribs which you can appreciate are extremely painful. As of this date, he has not returned to work. We will keep you informed of his condition as it progresses.
As in Fowler, this letter does not contain all the necessary information to constitute substantial compliance under Section 10. Specifically, the letter does not provide any indication as to the extent of the loss or the amount of damages sought.
Perhaps most compelling, Travelers Insurance Company, and not NIP, is the insurance carrier for the Town of Clarksville. NIP, by contrast, is based in New Jersey and develops and manages business insurance programs underwritten by major insurers. Appellee's App. p. 89. Consequently, it cannot even be said that NIP was a "constructive agent" for the Town of Clarksville. See Fowler, 773 N.E.2d at 865 (determining that the record was void of any evidence that the insurance company was a "constructive agent" for the defendants). In short, Scott failed to substantially comply with the notice requirements, and the trial court did not err by granting summary judgment in favor of Merchant on this basis.
III. Government Employee Immunity
Scott argues that Merchant is liable even though he was employed by the Town of Clarksville. Specifically, Scott contends that he may bring a lawsuit individually against Merchant if one of the exceptions of the Indiana Code section 34-13-3-5(c) is satisfied.
Generally, Indiana Code section 34-13-3-5(b) bars an action by a claimant against an individual in his personal capacity, who is employed by a government entity and whose conduct is alleged to have been with the scope of the employee's employment. Section 5(c) provides exceptions to this general rule:
A lawsuit filed against an employee personally must allege that an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee's employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the allegations.
Scott maintains that summary judgment was not appropriate because there are genuine issues of material fact concerning three of the above exceptions, namely, whether Merchant's actions were clearly outside the scope of his employment, whether his actions were malicious, and whether they were willful and wanton.
As to the issue of whether Merchant's actions were clearly outside the scope of his employment as a police officer for the Town of Clarksville, Merchant stated in his affidavit that at the time of the accident he was employed as a police officer by the Town of Clarksville and was on duty and driving a police vehicle owned by the Town of Clarksville. Appellee's App. p. 37-38. Merchant's testimony in his affidavit squarely addresses this issue and Scott fails to direct this Court to any evidence contradicting that testimony. When a party moving for summary judgment demonstrates that there is no genuine issue of material fact, the burden shifts to the nonmoving party to show the existence of a fact that would preclude summary judgment. Hostetler v. State Farm Fire & Cas. Co., 521 N.E.2d 1357, 1359 (Ind. Ct. App. 1988). Accordingly, Scott failed to provide any factual basis on which the trial court could have concluded that there was an issue of fact as to whether or not Merchant was clearly acting outside the scope of his employment.
As for the other two exceptions, Scott contends that Merchant's failure to yield to a red light, thereby causing a collision, constituted a malicious act and was willful and wanton. As an initial matter, we observe that it is disputed whether Merchant failed to yield to a red light. But viewing the facts in the light most favorable to the nonmoving party, the mere failure to yield to a red light is insufficient to show malice or willful and wanton conduct. Put another way, the claim lacks a basis in fact to show that Merchant engaged in malice or willful and wanton conduct. Consequently, this claim fails, and we affirm the decision of the trial court.
The judgment of the trial court is affirmed. KIRSCH, J., and BROWN, J., concur.