Madison Consolidated Schools v. Trisha Thurston ( 2019 )

FILED
Oct 23 2019, 8:46 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Kenneth A. Ewing Robert L. Barlow, II
Carmel, Indiana Madison, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Madison Consolidated Schools, October 23, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CT-797
v. Appeal from the Floyd Circuit
Court
Trisha Thurston, The Honorable John Terrence
Appellee-Plaintiff. Cody, Judge
Trial Court Cause No.
22C01-1804-CT-527
Riley, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-797 | October 23, 2019 Page 1 of 10
STATEMENT OF THE CASE
[1] Appellant-Defendant, Madison Consolidated Schools (Madison), appeals the
trial court’s denial of its motion for summary judgment in favor of Appellee-
Plaintiff, Trisha D. Thurston (Thurston), concluding that Madison is estopped
from asserting that Thurston failed to comply with the notice requirements of
the Indiana Tort Claims Act (ITCA).
[2] We affirm.
ISSUE
[3] Madison presents two issues for our review, which we consolidate and restate
as the following single issue: Whether genuine issues of material fact exist with
respect to Thurston’s estoppel argument which preclude the grant of summary
judgment to Madison.
FACTS AND PROCEDURAL HISTORY
[4] On September 5, 2014, sixteen-year-old Thurston was a passenger in a school
bus operated by Madison when the school bus struck a guardrail and collided
with another vehicle on Interstate 64 in Floyd County, Indiana. As a result of
the collision, Thurston suffered severe physical injuries and incurred physical
and mental pain.
[5] Subsequent to the accident, Jacqueline Thurston (Jacqueline), Thurston’s
mother, was contacted by Madison’s insurer, Liberty Mutual Insurance
Company (Liberty Mutual). In the months following this initial contact,
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Jacqueline had multiple communications with representatives of Liberty
Mutual. Liberty Mutual’s representatives recommended “waiting until
[Thurston’s] treatment had been completed before discussing a settlement of her
claim.” (Appellant’s App. Vol. II, p. 28). They instructed Jacqueline
“repeatedly that her claim needed to be resolved by April 17, 2018 [but] at no
time did any of [Liberty Mutual’s] representatives advise [her] that a Tort Claim
Notice needed to be filed [] by October 14, 2016.” (Appellant’s App. Vol. II, p.
28). Instead, Jacqueline was told that Thurston’s claim had “to be settled or put
into litigation by 4-17-2018 or she will be barred from recovery. Since she was a
minor at the time of the bus accident, she ha[d] 2 years plus her 18th birthday to
resolve her claim.” (Appellant’s App. Vol. II, p. 28). By email dated April 11,
2018, a representative of Liberty Mutual advised Jacqueline
We are not going to have all the medical in by the statute. We’ve
received quite a bit but not everything. [Thurston] is getting
ready to have her 20th birthday. You are going to need to retain
counsel to [protect] the statute of limitations. Obviously this
doesn’t mean we are not willing to get in the remaining medical
and still attempt to resolve this short of further litigation but you
have to protect the statute. Please reach out to counsel to discuss
and provide them my information.
(Appellant’s App. Vol. II, pp. 28-29).
[6] On April 16, 2018, Thurston filed her Complaint against Madison, seeking
damages for the injuries suffered as a result of the motor vehicle accident. On
July 31, 2018, Madison filed its motion for summary judgment, contending that
Thurston had not provided pre-suit notice of her claim pursuant to ITCA and
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therefore she was barred from pursuing her suit. On August 28, 2018, Thurston
filed her response to Madison’s motion, alleging that Liberty Mutual, as
Madison’s insurer, had led her to believe that formal notice would not be
necessary and therefore Madison should be estopped from asserting non-
compliance as a defense.
[7] On January 14, 2019, after hearing oral argument from counsel, the trial court
denied Madison’s motion for summary judgment, concluding that “genuine
issues of material fact exist with respect to the estoppel issue that precludes the
granting of summary judgment in favor of [Madison].” (Appellant’s App. Vol.
II, p. 11). On February 8, 2019, Madison filed a motion to certify the trial
court’s Order for interlocutory appeal, which was granted by the trial court and
accepted by this court on March 26, 2019.
[8] Madison now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[9] Madison contends that the trial court erred by concluding that a genuine issue
of material fact existed as to whether Madison should be estopped from
asserting Thurston’s non-compliance with the notice requirements of the ITCA
as a defense.
[10] In reviewing a trial court’s ruling on summary judgment, this court stands in the
shoes of the trial court, applying the same standards in deciding whether to
affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,
891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we
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must determine whether there is a genuine issue of material fact and whether
the trial court has correctly applied the law. Id. at 607-08. In doing so, we
consider all of the designated evidence in the light most favorable to the non-
moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if
it helps to prove or disprove an essential element of the plaintiff’s cause of
action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an
opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.
Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant
of summary judgment has the burden of persuading this court that the trial
court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.
[11] We observe that, in the present case, the trial court did not enter findings of fact
and conclusions of law thereon in support of its judgment. Generally, special
findings are not required in summary judgment proceedings and are not binding
on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48
(Ind. Ct. App. 2004). However, such findings offer a court valuable insight into
the trial court’s rationale and facilitate appellate review. Id.
[12] The ITCA provides that a claim against a political subdivision is barred unless a
claimant files notice of his intent to bring a tort claim with the governing body
of the political subdivision within 180 days after the claimant’s loss occurs. See
I.C. §§ 34-13-3-8(a)(1), -10. However, strict compliance with the ITCA notice
requirements is not mandatory. Schoettmer v. Wright, 992 N.E.2d 702, 707 (Ind.
2013). Indeed, “substantial compliance with the statutory notice requirements
is sufficient when the purpose of the notice requirement is satisfied.” Id. “[S]o
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long as [the ITCA’s] essential purpose has been satisfied, it should not function
as a trap for the unwary.” Id. at 706. “The purpose of the notice statute
includes informing the officials of the political subdivision with reasonable
certainty of the accident and surrounding circumstances so that the political
subdivision may investigate, determine its possible liability, and prepare a
defense to the claim.” Id. at 707.
[13] The parties agree that no notice of intent was filed, nor does Thurston raise an
allegation of substantial compliance. Instead, Thurston relies on the estoppel
doctrine to bar Madison’s defense. In the ITCA-notice context, the doctrine of
estoppel “focuses on representations made by the defendant or its agents to the
plaintiff, which induce the plaintiff to reasonably believe that formal notice is
unnecessary.” Allen v. Lake Cnty. Jail, 496 N.E.2d 412, 415 n.3 (Ind. Ct. App.
1986), reh’g denied. Our supreme court recently explained that a plaintiff
claiming estoppel in response to an ITCA-notice defense “must show its (1) lack
of knowledge and of the means of knowledge as to the facts in question, (2)
reliance upon the conduct of the party estopped, and (3) action based thereon of
such a character as to change [its] position prejudicially.” Schoettmer, 992
N.E.2d at 709. The doctrine of estoppel derives from one core “underlying
principle:” the equitable intuition that “one who by deed or conduct has
induced another to act in a particular manner will not be permitted to adopt an
inconsistent position, attitude, or course of conduct that causes injury to such
other.” Town of New Chicago v. City of Lake Station ex. rel. Lake Station Sanitary
Dist., 939 N.E.2d 638, 653 (Ind. Ct. App. 2010) (citing Brown v. Branch, 758
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N.E.2d 48, 51 (Ind. 2001)). Because the Indiana courts have long recognized a
general rule against applying equitable estoppel to government entities, the
State “will not be estopped in the absence of clear evidence that its agents made
representations upon which the party asserting estoppel relied.” Story Bed &
Breakfast, LLP v. Brown Cnty. Area Plan Comm’n, 819 N.E.2d 55, 67 (Ind. 2004).
The party asserting estoppel bears the burden of providing such clear evidence.
Schoettmer, 992 N.E.2d at 709.
[14] In Schoettmer, Schoettmer was injured in an auto accident by Wright, who was
an employee of the South Central Community Action Program (South Central),
a governmental entity subject to ITCA. Id. at 704-05. Schoettmer was aware
from the earliest stages of the litigation that Wright worked for South Central,
but was initially unaware that South Central was an entity subject to the ITCA.
Id. at 705. Some ten months after the accident, and after preliminary settlement
discussions had broken down, Schoettmer retained counsel for the first time and
subsequently sued Wright and South Central. Id. Upon review, our supreme
court found the three prerequisites of equitable estoppel satisfied: (1) neither
the insurance agency nor the agency gave Schoettmer “any reason to believe”
that South Central was covered by the ITCA; (2) South Central’s agent made
affirmative representations to Schoettmer that “it would be in his best interest to
wait until he is released from treatment—i.e., more than 180 days—before he
should try to settle the claim;” and (3) Schoettmer acted in reliance on those
representations, in that he waited until five months after the accident to sign a
release of his medical records, and South Central did not respond with a
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settlement offer until the ITCA notice period had already run. Id. at 709. For
these reasons, the Schoettmer court found that Schoettmer “should be allowed to
present proof of estoppel to the trial court.” Id. at 709-10.
[15] Likewise here, we find that there is a genuine issue of material fact as to
whether Madison should be estopped from asserting Thurston’s non-
compliance as a defense to the ITCA-required notice of tort claim. Thurston
designated evidence that subsequent to the accident, Liberty Mutual, as
insurance agent to Madison, recommended Thurston’s mother to wait until
medical treatment was completed prior to seeking a settlement. Representatives
of Liberty Mutual advised that the claim needed to be resolved by April 17,
2018, but at no time did they inform Thurston of the ITCA requirements.
There is designated evidence that Thurston and her mother acted in reliance on
this advice. In the months following the initial communications, instead of
filing a tort notice or law suit, Thurston and Liberty Mutual assembled the
medical documentation regarding the claim. It was not until April 11, 2018,
that Liberty Mutual advised Thurston to retain counsel to “[protect] the statute
of limitations.” (Appellant’s App. Vol. II, p. 29). Relying on this information,
Thurston retained counsel. Due to the continued communications between the
parties and Liberty Mutual’s expressed willingness to reach a settlement, it was
reasonable for Thurston and her mother to rely on those representations that
nothing else was necessary to preserve the claim except to reach a resolution by
April 17, 2018. As this designated evidence could reasonably support a finding
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of estoppel, or at least reveal genuine issues of material fact, summary judgment
is inappropriate.
[16] Madison’s challenge to Thurston’s estoppel claim is without merit. Madison is
correct that the four emails Thurston designated as evidence are dated after the
deadline for the tort notice passed and, “had the adjusters [] informed
[Thurston] of the deadline [] in those communications, it would have been
impossible for [Thurston] to have complied with the deadline[.]” (Appellant’s
Br. p. 11). Therefore, Madison maintains that “[t]he information not provided
to [Thurston] did not cause her miss the deadline.” (Appellant’s Br. p. 11).
However, Jacqueline’s designated affidavit clearly affirms—and is not
contradicted by Madison—that she had “multiple contacts with representatives
from Liberty Mutual” in the months subsequent to the accident and well in
advance of the expiration of ITCA’s tort claim deadline advising her to wait
until medical treatment was complete prior to commencing settlement
negotiations. (Appellant’s App. Vol. II, pp. 27-28). See Hughley v. State 15
N.E.3d 1000, 1003 (Ind. 2014) (self-serving affidavit may preclude summary
judgment when it establishes that material facts are in dispute.) The evidence
clearly reflects that Thurston and her mother attempted to work with Liberty
Mutual and relied on their instructions and assurances, rather than filing a
notice of tort claim.
CONCLUSION
[17] Based on the foregoing, we conclude that the trial court properly denied
Madison’s motion for summary judgment as there are genuine issues of
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material fact as to whether Madison should be estopped from asserting
Thurston’s non-compliance with the notice requirements of the ITCA.
[18] Affirmed.
[19] Vaidik, C. J. and Bradford, J. concur
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