Shannon Murphy v. Indiana State University and Nick D. Pledger ( 2020 )

FILED
Aug 10 2020, 8:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Matthew L. Hinkle Paul T. Belch
Carmel, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shannon Murphy, August 10, 2020
Appellant-Plaintiff, Court of Appeals Case No.
20A-CT-313
v. Appeal from the Vigo Superior
Court
Indiana State University and The Honorable Lakshmi Reddy,
Nick D. Pledger, Judge
Appellee-Defendant. Trial Court Cause No.
84D02-1712-CT-8710
Tavitas, Judge.
Case Summary
[1] Shannon Murphy appeals the trial court’s entry of summary judgment in favor
of Indiana State University (“ISU”). 1 We affirm.
1
Nick Pledger, who was also named as a defendant in Murphy’s lawsuit, was not involved in the summary
judgment proceedings below. Accordingly, we will address only the claims between Murphy and ISU.
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Issue
[2] Murphy presents one issue for our review, which we revise and restate as
whether the trial court erred by granting summary judgment in favor of ISU due
to Murphy’s failure to comply with the Indiana Tort Claims Act (the “Tort
Claims Act”).
Facts
[3] In early 2016, Murphy was a member of the ISU women’s volleyball team.
While a member of the team, Murphy used the team’s locker room.
Sometime before May 4, 2016, Nick Pledger, a student at ISU, 2 obtained access
to the team’s locker room, placed hidden cameras in various areas of the team’s
locker room, and recorded members of the team as they changed clothing.
Pledger recorded Murphy and others on the volleyball team in various states of
undress and distributed the videos on the internet.
[4] ISU received an anonymous tip regarding the videos and began an
investigation. ISU notified Murphy and Murphy’s teammates on or about May
4, 2016, regarding the hidden camera and the distributed videos. On May 11,
2
From the discovery obtained during the course of this action, it appears that Pledger’s wife, formerly a
member of the volleyball team, gave Pledger the code to access the locker room to obtain a teammate’s jersey
from the locker room and bring it to an away game. Pledger used the code again later to access the locker
room and place the hidden cameras.
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2016, the State of Indiana charged Pledger with twelve counts of voyeurism,
Level 6 felonies, and eight counts of public voyeurism, Level 6 felonies. 3
[5] On July 11, 2016, Murphy’s teammate, Stephanie Bindernagel, filed a notice of
tort claim with ISU, the Indiana Political Subdivision Risk Management
Commission, and the Attorney General regarding her claim for damages
against ISU for negligent management of the locker room. In September 2016,
Murphy filled out a notice of tort claim form that she obtained from the Indiana
Attorney General’s website. Murphy submitted her notice only to the Attorney
General. 4 Murphy’s notice also indicated that she had a claim against ISU for
negligent management of the locker room.
[6] On December 1, 2017, Murphy filed a complaint against ISU and Pledger,
alleging, in part, that ISU was negligent in the management and security of the
locker room, which allowed Pledger to access the locker room. In her
3
Pledger pleaded guilty to two counts of voyeurism, Level 6 felonies, and two counts of public voyeurism,
Level 6 felonies.
4
In its brief, ISU asserts that Murphy was represented by an attorney when she filed the notice with the
Attorney General. ISU does not provide a citation to the record to support this assertion; however, in
Murphy’s reply in support of her motion to correct error, Murphy indicated that an attorney worked on
Murphy’s behalf in June 2016, prior to Murphy’s filing with the Attorney General. Nonetheless, Murphy’s
claim to the Attorney General does not indicate she is represented by an attorney.
At the hearing on ISU’s motion to dismiss, the parties advised that the Attorney General’s Office forwarded
Murphy’s claim to ISU in December 2017—over one year outside the 180-day requirement.
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complaint, Murphy stated that she filed a notice of tort claim with the Attorney
General. 5
[7] On January 1, 2018, ISU filed a motion to dismiss, pursuant to Indiana Trial
Rule 12(B)(6), alleging that ISU is a political subdivision and not a state agency;
therefore, ISU alleged that Murphy did not provide ISU with the proper notice
under the Tort Claims Act. Murphy continued with discovery, and on May 17,
2018, ISU filed a motion for protective order, pursuant to Indiana Trial Rule
26(C), seeking to excuse ISU’s participation in discovery in light of its
previously-filed motion to dismiss.
[8] After a hearing on the motion for the protective order, the trial court entered an
order on September 17, 2018, granting in part and denying in part ISU’s motion
for protective order. The trial court allowed Murphy to proceed with limited
discovery “for the sole purpose of being able to respond to Defendant’s Motion
to Dismiss for failure to comply with the Tort Claim Notice.” Id. at 147. On
June 4, 2019, ISU filed a second motion for protective order, seeking to prevent
Murphy from deposing the ISU Police Department Chief, General Counsel,
and Vice President. The trial court granted ISU’s second motion for protective
order.
5
Murphy’s complaint did not name the Indiana Attorney General as a party to her complaint; however, on
December 13, 2017, the Attorney General’s office filed a “notice of non-involvement of the Indiana Attorney
General,” stating that the complaint does not involve the State of Indiana or a State agency. Appellant’s
App. Vol. II p. 47.
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[9] On July 11, 2019, Murphy responded to ISU’s motion to dismiss. Murphy
attached several exhibits to her response, including: Bindernagel’s notice of tort
claim; Murphy’s notice of tort claim, which was submitted to the Attorney
General with the certified mail receipt; Murphy’s complaint; a letter from
Murphy’s attorney to the Indiana Political Subdivision Risk Management
Commission on December 21, 2017; a letter from ISU’s attorney dated
December 20, 2017 regarding Murphy’s failure to file notice with ISU; and a
January 26, 2018 letter from the Indiana Political Subdivision Risk
Management Commission to Murphy’s counsel noting that ISU is not a
member of the Commission.
[10] On October 29, 2019, the trial court entered an order that: (1) considered ISU’s
motion to dismiss as a motion for summary judgment in light of Murphy’s
exhibits; and (2) granted ISU’s motion for summary judgment, concluding that
Murphy did not substantially comply with the notice requirements of the Tort
Claims Act. Murphy filed a motion to correct error and attached several
documents to the motion. 6 On January 10, 2020, the trial court denied
Murphy’s motion to correct error.
6
Some of the exhibits Murphy attached to her motion to correct error were not attached to her initial
response to ISU’s motion to dismiss. Accordingly, ISU argued the trial court should not consider exhibits
that were not designated as part of the trial court’s summary judgment decision. The trial court apparently
considered the documents based on its statement in the January 2020 order that it considered all pleadings
and exhibits.
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Analysis
[11] Murphy argues that the trial court erred by granting ISU’s motion for summary
judgment. ISU initially filed a motion to dismiss pursuant to Indiana Trial
Rule 12(B)(6) for failure to state a claim upon which relief could be granted.
The trial court, however, treated the motion as a motion for summary judgment
because evidence outside of the pleadings was considered. See Ind. Trial Rule
12(B) (“If, on a motion . . . to dismiss for failure of the pleading to state a claim
upon which relief can be granted, matters outside the pleading are presented to
and not excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56.”). Accordingly, we will
review Murphy’s arguments pursuant to the summary judgment standard. 7
[12] Summary judgment is appropriate only when the moving party shows there are
no genuine issues of material fact for trial and the moving party is entitled to
judgment as a matter of law. Erie Indem. Co. for Subscribers at Erie Ins. Exch. v.
Estate of Harris by Harris, 99 N.E.3d 625, 629 (Ind. 2018), reh’g denied; see also
Ind. Trial Rule 56(C). Once that showing is made, the burden shifts to the
nonmoving party to designate appropriate evidence to demonstrate the actual
existence of a genuine issue of material fact. Schoettmer v. Wright, 992 N.E.2d
702, 705-06 (Ind. 2013). When ruling on the motion, the trial court construes
7
The parties agree on the applicable standard of review and do not argue that the appropriate standard here
is the motion to correct error standard. We would review a motion to correct error for an abuse of discretion.
See Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1055 (Ind. 2003).
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all evidence and resolves all doubts in favor of the non-moving party. Id. at
706. We review the trial court’s ruling on a motion for summary judgment de
novo, and we take “care to ensure that no party is denied his day in court.” Id.
“We limit our review to the materials designated at the trial level.” Gunderson v.
State, Indiana Dep’t of Nat. Res., 90 N.E.3d 1171, 1175 (Ind. 2018), cert. denied,
139 S. Ct. 1167 (2019).
A. Tort Claims Act’s Notice Requirements
[13] ISU’s motion for summary judgment concerned Murphy’s failure to comply
with the notice requirements of the Tort Claims Act. Our Courts have held that
a liberal application of the requirements of the Tort Claims Act statute is proper
in order to avoid denying plaintiffs an opportunity to bring a claim where the
purpose of the statute has been satisfied. Town of Knightstown v. Wainscott, 70
N.E.3d 450, 455 (Ind. Ct. App. 2017), trans. denied. The notice requirement “‘is
intended to ensure that government entities have the opportunity to investigate
the incident giving rise to the claim and prepare a defense.’” Id. (quoting
Schoettmer, 992 N.E.2d at 706). “Like any statute in derogation of the common
law, the [Tort Claims Act] ‘must be strictly construed against limitations on the
claimant’s right to bring suit.’” Id. (quoting Schoettmer, 992 N.E.2d at 706). “So
long as its essential purpose has been satisfied, the notice requirement ‘should
not function as a trap for the unwary.’” Id. (quoting Schoettmer, 992 N.E.2d at
706) (internal quotations omitted). “‘The question of compliance is not a
question of fact for the jury but ultimately a legal determination to be made by
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the court.’” Id. (quoting Indiana State Highway Comm’n v. Morris, 528 N.E.2d
468, 471 (Ind. 1988)).
[14] The Tort Claims Act provides that a tort claim against a government entity is
barred unless the claimant provides the entity with timely notice of the claim.
See Ind. Code Chapter 34-13-3. The notice “must describe in a short and plain
statement the facts on which the claim is based,” 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 the
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.” Ind. Code § 34-13-3-10. The
notice must be in writing and delivered in person or by registered or certified
mail. I.C. § 34-13-3-12. The parties do not argue that Murphy’s notice failed to
contain the proper information; rather, the parties’ arguments focus on
Murphy’s failure to notify the proper parties of her claim.
[15] The Tort Claims Act specifies which entity or entities a claimant must notify.
The notice requirements are different for: (1) claims against the State and State
agencies; and (2) claims against political subdivisions. The notice requirements
for a claim against the State or a State entity are governed by Indiana Code
Section 34-13-3-6(a), which provides that “a claim against the state is barred
unless notice is filed with the attorney general or the state agency involved
within two hundred seventy (270) days after the loss occurs.” The Attorney
General is required to “prescribe a claim form to be used to file a notice” under
this section. I.C. § 34-13-3-6(b).
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[16] On the other hand, the notice requirements for a claim against a political
subdivision are governed by Indiana Code Section 34-13-3-8, which provides:
Except as provided in section 9[8] of this chapter, a claim against
a political subdivision is barred unless notice is filed with:
(1) the governing body of that political subdivision; and
(2) the Indiana political subdivision risk management
commission created under IC 27-1-29;
within one hundred eighty (180) days after the loss occurs.
(b) A claim against a political subdivision is not barred for failure
to file notice with the Indiana political subdivision risk
management commission created under IC 27-1-29-5 if the
political subdivision was not a member of the political
subdivision risk management fund established under IC 27-1-29-
10 at the time the act or omission took place.
Indiana Code Section 34-6-2-110 defines the term “political subdivision” to
include a “state educational institution.” See I.C. § 34-6-2-110(7).
[17] Our Court has held that ISU is a political subdivision. See VanValkenburg v.
Warner, 602 N.E.2d 1046, 1048 (Ind. Ct. App. 1992) (“There is no dispute in
this case that Indiana State University is a political subdivision.”), trans. denied.
Pursuant to Indiana Code Section 34-13-3-8, Murphy was only required to give
8
Indiana Code Section 34-13-3-9 is inapplicable here.
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notice of her claim to ISU, and Murphy’s claim was barred unless she provided
timely notice of the claim. 9 Murphy, however, did not provide notice to ISU as
required by Indiana Code Section 34-13-3-8; rather, Murphy provided notice of
her claim only to the Attorney General using a form found on the Attorney
General’s website, which was intended for tort claims against the State or a
State agency.
B. Substantial Compliance
[18] Murphy contends that, despite her failure to provide timely notice to ISU, she
fulfilled the Tort Claims Act’s notice requirements under the theory of
substantial compliance. “Our [C]ourts have found that not all technical
violations of [the Tort Claims Act] are fatal to a claim.” Knightstown, 70
N.E.3d at 456. “Non-compliance has been excused in certain cases based on
the theories of substantial compliance, waiver, and estoppel.” Id. Substantial
compliance is at issue here.
[19] “Substantial compliance with the statutory notice requirements is sufficient
when the purpose of the notice requirement is satisfied.” Schoettmer, 992
N.E.2d at 707. The purpose of the Tort Claims Act’s notice requirements is “to
provide the political subdivision the opportunity to investigate the facts
surrounding an accident so that it may determine its liability and prepare a
9
Murphy was informed that ISU is not a member of the Indiana Political Subdivision Risk Management
Commission. Accordingly, Murphy was not required to give notice to the Indiana Political Subdivision Risk
Management Commission.
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defense.” Knightstown, 70 N.E.3d at 456. In general, a notice that: (1) is filed
within the 180-day period, (2) informs the governmental entity of the claimant’s
intent to make a claim, and (3) contains sufficient information which
reasonably affords the governmental entity an opportunity to promptly
investigate the claim, satisfies the purpose of the statute and will be held to
substantially comply with the Tort Claims Act. Id. Where a plaintiff, within
the 180-day period, “fails to file any notice of an intent to make a claim, actual
knowledge of the occurrence on the part of the [governmental entity], even
when coupled with an investigation of the occurrence, will not suffice to prove
substantial compliance.” Id. “‘What constitutes substantial compliance, while
not a question of fact but one of law, is a fact-sensitive determination.’”
Schoettmer, 992 N.E.2d at 707 (quoting Collier v. Prater, 544 N.E.2d 497, 499
(Ind. 1989)).
[20] Murphy contends she substantially complied with the Tort Claims Act,
because: (1) ISU investigated and was aware of the claims which were the
subject of Murphy’s suit; (2) Murphy filed a notice of tort claim with the
Indiana Attorney General; and (3) Bindernagel’s notice provided ISU with the
relevant information regarding the claim. Accordingly, we will consider
whether Murphy substantially complied with the Tort Claims Act’s notice
requirements.
1. ISU’s Investigation
[21] Murphy first argues that she substantially complied with notice requirements
because, although Murphy did not file notice with ISU, ISU was aware of the
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incident, investigated the claims, and notified the victims regarding Pledger’s
actions. Our Supreme Court, however, has repeatedly held that “‘mere actual
knowledge of an occurrence, even when coupled with routine investigation,
does not constitute substantial compliance.’” Schoettmer, 992 N.E.2d at 707
(quoting Morris, 528 N.E.2d at 470); 10 see also Brown v. Alexander, 876 N.E.2d
376, 384 (Ind. Ct. App. 2007) (“Our [C]ourts have consistently held that
knowledge of claimant’s injury, and even an opportunity to investigate, are
insufficient to satisfy the requirement of notice.”), trans. denied; Fowler v. Brewer,
773 N.E.2d 858, 865 (Ind. Ct. App. 2002) (holding “actual knowledge of the
occurrence on the part of the political subdivision or an employee of the
political subdivision does not satisfy the notice requirement of the [Tort Claims
Act]”), trans. denied.
[22] Although ISU no doubt knew of the events leading up to Murphy’s claim,
ISU’s initial investigation was focused on identifying Pledger and gathering
information for Pledger’s criminal case. The investigation into Pledger’s
actions, however, differs from the investigation ISU would undertake to
10
In support of her argument, Murphy cites City of Tipton v. Baxter, 593 N.E.2d 1280 (Ind. Ct. App. 1992). In
Baxter, our Court found substantial compliance with the Tort Claims Act, despite the Baxters’ failure to
provide written notice to the City, because “[t]he City’s insurer, GIE, had actual knowledge of the accident
several days after it happened, conducted an investigation, and indicated a willingness to settle with the
Baxters.” Baxter, 593 N.E.2d at 1283. First, we conclude that Baxter is distinguishable from Murphy’s case
because there is no indication in the record that Murphy had any communication with ISU’s insurer.
Moreover, in Schoettmer, 992 N.E.2d at 707-08, our Supreme Court disagreed with Baxter and “decline[d] to
find substantial compliance where, . . . the claimant communicated only with the insurer and took no steps
whatsoever to comply with the notice statute.” Schoettmer, 992 N.E.2d at 708. Given the holding of
Schoettmer, we find Baxter unpersuasive.
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determine a defense to a negligence allegation. Given our Supreme Court’s
decision in Schoettmer, we cannot conclude that ISU’s knowledge of the incident
and investigation into Pledger’s criminal actions amounted to substantial
compliance that was sufficient to satisfy the requirement of notice.
Accordingly, we cannot find that Murphy substantially complied with the Tort
Claims Act on this basis.
2. Written Notice to the Indiana Attorney General
[23] Next, Murphy argues that she substantially complied with the Tort Claims
Act’s notice requirement by sending her notice to the Attorney General. In
support of her argument, Murphy cites Galbreath v. City of Indianapolis, 253 Ind.
472, 255 N.E.2d 225 (Ind. 1970), where our Supreme Court found substantial
compliance when a notice of tort claim was sent to the City Legal Department,
instead of the Mayor. Our Supreme Court held that the “City Legal
Department may properly be viewed as the agent of the mayor for certain
purposes, one of which is to receive the notice under the notice statute of suits
to be brought against the city.” Galbreath, 253 Ind. at 479, 255 N.E.2d at 229.
The Court explained that the “purpose of the notice statute being to advise the
city of the accident so that it may promptly investigate the surrounding
circumstances, we see no need to endorse a policy which renders the statute a
trap for the unwary where such purpose has in fact been satisfied.” Id. at 479-
80, 255 N.E.2d at 229.
[24] We agree with ISU that Murphy’s situation is distinguishable from Galbreath.
The designated evidence does not demonstrate an agency relationship between
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ISU and the Attorney General similar to the connection between the city’s
mayor and the city’s legal department in Galbreath. There is no evidence that
ISU or an agent of ISU had any indication of Murphy’s intent to file a notice of
tort claim within the 180-day statutory window.
[25] Murphy also argues that she fell into a “trap for the unwary” because the
Attorney General provided a notice of tort claim form on its website. See id. at
479-80, 255 N.E.2d at 229. The Attorney General’s website includes the form
because, when a State agency is involved, the Attorney General must receive
notice and is required by statute to “prescribe a claim form to be used to file a
notice.” See I.C. § 34-13-3-6. The notice of tort claim used by Murphy also
indicated that, if the claimant had any questions regarding how to submit the
form, the claimant should contact an attorney. We cannot say that the
Attorney General, by complying with its statutory requirements, created a trap
for the unwary.
[26] Finally, Murphy also argues that she fell into a trap for the unwary because the
Attorney General failed to notify her that she sent the notice of tort claim to the
wrong entity. In support of this argument, Murphy relies on Schoettmer, 992
N.E.2d at 709-10, in which Schoettmer was injured in a motor vehicle accident
with an employee of the South Central Community Action Program (“South
Central”). Unaware that the South Central was a governmental entity,
Schoettmer communicated for months with South Central’s insurance
company. When they were unable to reach a settlement, Schoettmer brought
an action against South Central. South Central filed a motion for summary
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judgment because Schoettmer failed to provide timely notice of his tort claim
pursuant to the Tort Claims Act, and the trial court granted the motion.
[27] On appeal, Schoettmer argued, in part, that the doctrine of equitable estoppel
precluded South Central’s argument. Our Supreme Court noted that “[t]he
party claiming equitable estoppel 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 his position prejudicially.’” Schoettmer, 992 N.E.2d at 709 (quoting
Story Bed & Breakfast LLP v. Brown Cnty. Area Plan Comm’n, 819 N.E.2d 55, 67
(Ind. 2004)). Equitable estoppel will not apply against the State unless there is
“clear evidence that its agents made representations upon which the party
asserting estoppel relied.” Id. The burden to produce that evidence rests upon
the party claiming estoppel. Id. The Court concluded, in part, that a genuine
issue of material fact existed regarding whether Schoettmer “failed to act
because of his reliance on the [insurer’s] representations.” Id.
[28] Here, Murphy does not argue on appeal that the doctrine of equitable estoppel
applies. Moreover, the Attorney General’s office did not notify Murphy one
way or another that her notice was incorrect. There is no evidence that Murphy
failed to act because of reliance on a representation of the Attorney General.
We are not persuaded by Murphy’s argument that she fell into a trap for the
unwary based upon the Attorney General’s failure to inform her that her notice
was misdirected.
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[29] There is no designated evidence that the Attorney General was an agent of ISU
or that Murphy fell into a trap for the unwary because the Attorney General
maintains a tort claim form on its website or because the Attorney General
failed to inform Murphy that her notice was sent to the wrong entity. We
cannot find substantial compliance with the Tort Claims Act based upon
Murphy’s arguments regarding the Attorney General. See, e.g., id. at 708-09
(holding that the governmental entity’s insurance carrier was not the
governmental entity’s “agent for the purpose of receiving tort claim notices”).
3. Bindernagel’s Notice
[30] Murphy also argues that Bindernagel’s notice of tort claim provided ISU with
sufficient notice that should allow Murphy’s claim to go forward. Bindernagel
sent her notice of tort claim to the following: the Indiana Political Subdivision
Risk Management Commission; the Attorney General; ISU’s general counsel;
the president of ISU; and the ISU Board of Trustees. Murphy concedes that
Bindernagel’s notice was not sent on behalf of Murphy; however, Murphy
argues that, because Bindernagel’s notice disclosed that Pledger videotaped
Bindernagel and “other members” of the ISU volleyball team, ISU had
knowledge that others on the team may bring claims. Appellant’s Br. p. 23.
[31] In support of her argument, Murphy relied on Budden v. Board of School Com’rs of
City of Indianapolis, 698 N.E.2d 1157, 1162-63 (Ind. 1998). In Budden, AFG, a
retirement plan administrator for the IPS school corporation, embezzled funds
from hundreds of teachers. The attorney for three teachers sent a letter to the
school corporation that stated: “This is to advise you that our office has been
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retained by the plaintiffs and potentially all teachers who had [retirement] funds
embezzled by AFG to represent their interests in any claims they may have
against IPS and AFG.” Budden, 698 N.E.2d at 1159 (internal citations
omitted). The plaintiffs filed an action against the school corporation and
sought to certify the case as a class action. The school corporation argued that
the notice of tort claim was insufficient under the Tort Claims Act except for
the three teachers represented by the attorney at the time of the notice of tort
claim. The trial court denied the motion for class certification and allowed the
case to go forward only as to the three teachers.
[32] Our Supreme Court addressed whether “notice by a putative class
representative that fairly signals an intent to assert a class claim, but does not
list all potential plaintiffs, compl[ies] with the notice requirement to preserve
claims of class members . . . .” Id. at 1158. The Court held that there was “no
prohibition against class actions on behalf of a class including members who
were not specifically identified in the tort claim notice.” Id. at 1161. The Court
rejected the defendants’ argument that some members of the class would be able
to bypass the notice requirement through a class action, stating that while that
“may be correct, [ ] the [Tort Claims] Act is intended to give the political
subdivision notice, not to create barriers to claims.” Id. at 1163. Importantly,
the Court observed that “the class action by its very nature circumvents the
need for individual plaintiffs to file individual claims.” Id. (citations and
quotations omitted).
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[33] We do not find Budden applicable here. 11 The notice of tort claim in Budden
advised that the attorney had been retained by three teachers “and potentially
all teachers” to bring an action against the school corporation. Id. at 1159. The
three teachers then sought to have a class action certified. Here, although
Bindernagel’s notice mentioned that Pledger videotaped Bindernagel “and other
members of the [ISU] Women’s Volleyball Team”, see Appellant’s App. Vol. II
p. 181, the notice did not in any way indicate that other members of the
women’s volleyball team would similarly file suit or that the attorney was
seeking to represent other members of the team or certify a class. Bindernagel’s
notice did not notify ISU of claims or potential claims on behalf of the entire
volleyball team.
[34] ISU argues that Bindernagel’s notice of tort claim is insufficient to provide
notice of Murphy’s claim. In support of its argument, ISU relies on Rosga v.
City of Hammond, 493 N.E.2d 787 (Ind. Ct. App. 1985), reh’g denied, trans. denied.
11
Murphy also relies on Indiana State Highway Commission v. Morris, 528 N.E.2d 468 (Ind. 1988), in support of
her argument that Bindernagel’s notice of tort claim provided ISU with sufficient notice of Murphy’s claim.
In Morris, the claimant served the notice of tort claim to the State Highway Commission but neglected to
serve notice to the Attorney General, as required by the Tort Claims Act. The Commission, however,
forwarded the notice to the Attorney General’s office in accordance with their policies. Ultimately, after
plaintiffs filed suit, the Commission challenged Morris’ compliance with the notice requirement of the Tort
Claims Act. Our Supreme Court found substantial compliance, concluding that, while the Tort Claims Act
indicates that notice must be filed with certain entities, it “does not designate who must file the notice.”
Morris, 528 N.E.2d at 470 (emphasis applied). Accordingly, the Commission’s timely forwarding of the
notice to the Attorney General was sufficient to establish the plaintiff complied with the notice requirement
of the Tort Claims Act.
Based on Morris, Murphy argues that, because Bindernagel sent notice of her claim to ISU, Murphy’s lack of
notice to ISU is not fatal. The point of Morris, however, was that both the Commission and the Attorney
General ultimately received timely notice of Morris’s claim. Here, although ISU had timely notice of
Bindernagel’s claim, ISU never received timely notice of Murphy’s claim, which is the purpose of the notice
requirement. Accordingly, we do not find Morris applicable here.
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Rosga was injured and her husband was killed in a collision. Although Rosga
failed to provide a notice of tort claim to the City regarding her claims, the City
was provided with a notice of tort claim from the estates of three other people
killed in the crash.
The caption of this notice recited that it concerned the property
damage and personal injury claims of those three, “and all
persons similarly situated, injured or killed” in the accident. The
body of the notice mentioned Mrs. Rosga and her husband by
name and that she had been injured and he had been killed. It
did not, however, otherwise purport to advance a claim on behalf
of Mr. or Mrs. Rosga.
Rosga, 493 N.E.2d at 788. The trial court granted summary judgment to the
City on Rosga’s claim because of her failure to provide a notice of tort claim.
[35] On appeal, we concluded that there was no authority “permitting a party to rely
upon the notice of claim given by some other party for that party’s claim arising
out of the same occurrence. Nor do we believe such reliance should be
permitted. The city is entitled to know that the party is making a claim.” Id. at
789. We affirmed and held that “no notice was given by, or on behalf of, the
claimant by any authorized representative, and that such notice was necessary
to enable the claimant to maintain the action.” Id.
[36] ISU also relies on Putnam County v. Caldwell, 505 N.E.2d 85 (Ind. Ct. App.
1985), reh’g denied, which reached a result similar to that in Rosga. Jon Caldwell
(“Jon”) was injured while riding in a motor vehicle owned by the county and
driven by a county employee. After his injuries, Jon filed his notice of tort
Court of Appeals of Indiana | Opinion 20A-CT-313 | August 10, 2020 Page 19 of 22
claim, but Jon made no mention of his wife, Jerri Caldwell (“Jerri”), or a
potential claim for loss of consortium. Subsequently, Jerri filed a claim for loss
of consortium against the county. The county filed for summary judgment on
Jerri’s claim, contending that notice of the tort claim was not properly given,
but the trial court denied the motion. Our Court found the trial court should
have granted summary judgment in favor of the county as to Jerri’s claim
because the “names and number of claimants are essential” and, “until the
complaint was filed, the Public Body would not know that Jerri existed, or if it
did, that she contemplated filing a claim. Knowledge that the accident
occurred is not sufficient.” Caldwell, 505 N.E.2d at 87.
[37] We agree with ISU and find Murphy’s case is analogous to Rosga and Caldwell.
We acknowledge that, unlike Caldwell, ISU knew of Murphy’s existence, even if
Bindernagel’s notice of tort claim did not disclose Murphy by name. Rosga and
Caldwell demonstrate, however, that Murphy cannot rely on Bindernagel’s
notice of tort claim, which does not disclose that Murphy intended to bring a
claim. Even in Rosga, when the other potential parties were disclosed by name,
our Court declined to find substantial compliance. Accordingly, we cannot find
that Bindernagel’s notice of tort claim warrants a finding that Murphy
substantially complied with the notice requirement of the Tort Claims Act.
C. Summary
[38] Even considering together: (1) Bindernagel’s proper notice of tort claim; (2)
Murphy’s notice to the Attorney General; and (3) ISU’s investigation, we
cannot find that Murphy substantially complied with the notice requirements of
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the Tort Claims Act. Murphy’s notice to the Attorney General simply did not
satisfy the purpose of the notice requirement. The notice to the Attorney
General did not inform ISU of Murphy’s intent to take legal action so that ISU
could determine its liability and prepare a defense as to Murphy. Although ISU
was aware of the locker room incident and of Bindernagel’s notice of tort claim,
ISU was not provided with timely notice of Murphy’s negligence claim against
ISU. Accordingly, ISU demonstrated that there were no genuine issues of
material fact and that it was entitled to judgment as a matter of law because
Murphy’s claim was “barred” for failure to provide a proper notice of tort claim
under Indiana Code Section 34-13-3-8.
[39] The General Assembly has specifically articulated the notice of tort claim
requirements, and, our Supreme Court and this Court have clearly expressed
the purpose of such requirements. Murphy’s notice, which was provided to the
wrong entity, did not satisfy the purpose of the notice requirements. Although
the facts of this case are appalling and no doubt continue to substantially impact
Murphy, the notice requirements of Indiana Code Section 34-13-3-8 and the
cases interpreting the Tort Claims Act require us to conclude the trial court
properly granted ISU’s motion for summary judgment based on the record
before us. 12
12
Murphy also argues that, as an alternative to reversal, we should consider remanding the case to the trial
court for additional discovery and an evidentiary hearing to determine whether Murphy substantially
complied with the Tort Claims Act’s notice requirements. We decline Murphy’s invitation to remand for an
Court of Appeals of Indiana | Opinion 20A-CT-313 | August 10, 2020 Page 21 of 22
Conclusion
[40] The trial court properly granted ISU’s motion for summary judgment. We
affirm.
[41] Affirmed.
Riley, J., and Mathias, J., concur.
evidentiary hearing to further develop facts regarding Murphy’s potential compliance with the Tort Claims
Act. Murphy contends in her reply brief that we should remand for an evidentiary hearing to allow her to
conduct depositions of other university officials to discover whether the Attorney General’s office ever timely
forwarded the notice to ISU. Murphy cannot create a genuine issue of material fact by merely speculating a
fact may exist. See Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App. 2008) (concluding “mere
speculation cannot create questions of fact. . . . Opinions expressing mere possibility with regard to a
hypothetical situation are insufficient to establish a genuine issue of material fact”) (citations omitted), trans.
denied.
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