Indiana State Highway Commission v. Morris ( 1988 )

ON CIVIL PETITION TO TRANSFER

DICKSON, Justice.

Two vehicles collided on a one-lane state highway bridge near Seymour, Indiana, resulting in the death of Cindy J. Morris and in injuries to passengers in both vehicles. Various subsequent damage suits were filed against the Indiana State Highway Commission (Commission) alleging negligence in construction, maintenance and traffic engineering of the bridge. Following agreed consolidation and resolution as to some of the claims, a jury trial resulted in verdicts and judgments in favor of the plaintiffs. The Court of Appeals reversed because of plaintiffs’ failure to serve statutory tort claim notices on the Attorney General. Indiana State Highway Comm’n v. Morris (1986), Ind.App., 488 N.E.2d 713. We grant transfer.

The issues raised by appellant Commission relate to the following general issues:

1. Tort Claims Act notice requirement;

2. statutory limitation on amount of liability;

3. admissibility and effect of covenants-not-to-sue;

4. defendant’s liability for costs.

Tort Claims Act Notice Requirement

The Commission first contends that plaintiffs’ claims are barred by reason of their failure to serve dual notices of tort claim on both the Commission as the involved state agency and the Attorney General. The accident occurred October 14, 1978. By certified mail, plaintiffs mailed their notices of tort claim to the Commission. The notices were received on February 6, 1979, by Commission employee William T. May, serving in the capacity of Assistant Chief Engineer — Administration. Plaintiffs did not send tort claim notices to the Attorney General. However, on February 6, 1979, in accordance with his usual policy in cases against the Commission, Mr. May made copies of the notices and forwarded them to the Office of Attorney General, which received them on February 7, 1979.

The applicable provision of the Indiana Tort Claims Act provides:

Except as provided in [34-4-16.5-8] a claim against the state is barred unless notice is filed with the attorney general and the state agency involved within one hundred eighty (180) days after the loss occurs. However, if notice to the state agency involved is filed with the wrong state agency, that error does not bar a claim if the claimant reasonably attempts to determine and serve notice on the right state agency.

Ind.Code § 34-4-16.5-6. There is no dispute regarding the adequacy of the content of the notices.

The Commission contends that the requirements of Ind.Code § 34-4-16.5-6 were not met because the notice received by the Attorney General was not received directly from the plaintiffs, and that the doctrine of substantial compliance is not applicable.

The language of the statute, literally applied, simply requires that the tort claim notice be “filed” with the Attorney General and the state agency. It does not designate who must file the notice. Noting that the present Tort Claims Act requires only that notice “be given,” the Court of Appeals has refused to permit “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.” Rosga v. City of Hammond (1985), Ind.App., 493 N.E.2d 787, 788-89.

Nor do we believe such reliance should be permitted. The city is entitled to know that the party is making a claim. Indeed, IC 34-4-16.5-10 contemplates that the city will pass on the claim and directs that it notify the claimant in writing within ninety (90) days of its approval or denial of the claim.

Id. In the present case, these objectives are satisfied because the Commission and the Attorney General each received timely notice fully advising them that the plaintiffs were making a claim.

The Commission emphasizes prior cases holding that mere actual knowledge of an occurrence, even when coupled with routine investigation, does not constitute substantial compliance. Dunn v. City of Indianapolis (1983), Ind.App., 451 N.E.2d 1122; City of Indianapolis v. Satz (1978), 268 Ind. 581, 377 N.E.2d 623; Geyer v. City of Logansport (1977), 267 Ind. 334, 370 N.E. 2d 333; Galovick v. State (1982), Ind.App., 437 N.E.2d 505.

In Delaware County v. Powell (1979), 272 Ind. 82, 84, 393 N.E.2d 190, 191, Justice Pivarnik observed:

From Geyer, supra, and [City of Fort Wayne v.] Cameron, [ (1977), 267 Ind. 329, 370 N.E.2d 338], it is clear that mere actual knowledge of the occurrence or routine investigation of it is not sufficient to constitute substantial compliance with the statute. However, it is equally clear from these cases that the notice requirement can be waived or substantial compliance may be proved....

Although the specifics of the purposes of the notice statute have been elaborated upon in previous cases, Justice Hunter stated the larger consideration underlying allowing proof of substantial compliance in Galbreath v. City of Indianapolis (1970), 253 Ind. 472, 255 N.E. 2d 225. Galbreath has been cited many times with continuing approval. The significant language of that opinion reads as follows:

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, (original emphasis)

253 Ind. at 480, 255 N.E.2d at 229.

Substantial compliance with the statutory notice requirements is sufficient when the purpose of the notice requirement is satisfied. Galbreath, supra; Burggrabe v. Board of Pub. Works (1984), Ind.App., 469 N.E.2d 1233; Mills v. American Playground Device, Co. (1980), Ind.App., 405 N.E.2d 621. The purposes of the notice statute include informing the officials of the political subdivision with reasonable certainty of the accident and surrounding circumstances so that political division may investigate, determine its possible liability, and prepare a defense to the claim. Geyer, supra; Galbreath, supra; Burggrabe, supra; Dunn, supra.

These purposes, combined with that of requiring a claimant to announce his intention to assert a claim, as noted in Rosga, supra, are thus the recognized objectives of the statutory notice requirement. In the present case, both the Commission and the Attorney General not only received full and timely information regarding the occurrence, but they each received formal notification of plaintiffs’ intentions to assert a claim. This constituted more than mere actual knowledge. It satisfied the statutory objectives and achieved substantial, if not actual, compliance.

The question of compliance is not a question of fact for the jury but ultimately a legal determination to be made by the court. City of Indianapolis v. Satz, supra, Thompson v. City of Aurora (1975), 263 Ind. 187, 325 N.E.2d 839. The trial court correctly ruled that plaintiffs’ claims were not barred by reason of failure to comply with the statutory notice requirement.

Statutory Limitation on Amount of Liability

The Commission next contends that the trial court erred in overruling its motion for remittitur. It argues that the verdict of $700,000 in favor of plaintiff Bonnie C. Morris, personal representative of the estate of Cindy J. Morris, deceased, and the verdict of $500,000 in favor of plaintiff Sherri Norton, were subject to remittitur to $300,000 each by reason of Ind. Code § 34-4-16.5-4 which provides:

The combined aggregate liability of all governmental entities and of all public employees, acting within the scope of their employment and not excluded from liability under [Ind.Code § 34-4-16.5-3], does not exceed three hundred thousand dollars [$300,000] for injury to or death of [1] one person in any one [1] occurrence and does not exceed five million dollars [$5,000,000] for injury to or death of all persons in that occurrence. A governmental entity is not liable for punitive damages.

Plaintiffs correctly note that the statute does not prohibit a verdict in excess of $300,000. State v. Bouras (1981), Ind.App., 423 N.E.2d 741. They further urge that the statute likewise does not apply to judgment entries, but is only applicable to prevent a judgment creditor from actually collecting more than the statutory limits.

While there is no proper purpose served by advising the jury of the statutory limits, we find that the entry of judgment is the appropriate point at which the statute should be applied. We therefore hold that the final judgments should not have been in excess of the applicable statutory limitation.

Admissibility and Effect of Covenants-Not-To-Sue

The Commission next contends that the trial court erred in excluding evidence regarding covenants-not-to-sue and payments received thereunder for the reason that these rulings precluded it from presenting the issue of whether plaintiffs had been fully or partially compensated.

The following facts from the parties’ Agreed Statement of the Case pursuant to Appellate Rule 7.3 are relevant to our determination of this issue:

28. On March 25, 1980, [prior to commencement of trial] Plaintiff Bonnie C. Morris, as Personal Representative of the Estate of Cindy J. Morris, executed a covenant not to sue in favor of Sally Hauersperger [driver of the other vehicle] in exchange for a payment of $26,-000.

29. On March 25, 1980, the plaintiff, Sherri Norton, executed a covenant not to sue in favor of Sally Hauersperger in exchange for a payment of $30,000.

30. On March 25, 1980, James W. Morris and Bonnie C. Morris individually and as Father and Mother and natural guardians of Plaintiff, Kathy L. Morris, a minor, executed a covenant not to sue in favor of Sally Hauersperger in exchange for a total payment of $24,000 which was broken down as follows:

To James W. Morris and Bonnie C. Morris, individually, the sum of $20,-500;

To James W. Morris and Bonnie C. Morris, as parents and natural guardians of Kathy L. Morris, a minor, the additional sum of $3,500.

The covenant stated that in consequence of Kathy’s injuries, James W. Morris and Bonnie C. Morris had been deprived of and will continue hereafter to be deprived of the services of their daughter Kathy and that they have incurred medical, hospital and legal expenses for her care, all of which resulted in damage to them personally.

31. On March 25, 1980, Sue Norton, individually and as Mother and natural guardian of Sherri Norton, a former minor, executed a covenant not to sue in favor of Sally Hauersperger for exchange for a payment of $19,500. The covenant provided that in further consequence of the injuries to Sherri Norton, Sue Norton was deprived of the services of her daughter, Sherri Norton, and that further she has incurred medical, hospital and legal expenses for her care, all of which result in damages to her personally-

32. On February 19, 1985, Plaintiffs filed a Motion in Limine which, in Paragraph 2, requested the court to exclude evidence of any collateral payment by any insurance carrier to the Plaintiffs, their parents, or any passengers of the vehicles, and in Paragraph 6, to exclude any evidence that any Plaintiff asserted a prior claim against Sally Hauersperger.

33. On February 19, 1985, the Court granted the said Paragraphs 2 and 6 of the Motion in Limine and ordered the State not to refer in any way to the matters excluded.

34. Subsequently, the Court modified its Order and admitted into evidence the payment of $26,000 to Bonnie C. Morris, Personal Representative of the Estate of Cindy J. Morris, deceased; the payment of $30,000 to Sherri Norton; and the payment of $3,500 to Bonnie C. Morris and James W. Morris, parents of Kathy L. Morris, a minor.

35. The court excluded evidence of, and any reference to, the payment of $20,500 to James W. Morris and Bonnie C. Morris, individually and as Father and Mother of Kathy L. Morris, minor, and of the payment of $19,500 to Sue Norton.

R. 48-50.

It is undisputed that the excluded evidence pertained exclusively to partial settlements received by the parents of two of the plaintiffs. To the extent the settlement proceeds were paid to the parents in their representative capacities as guardians for the benefit of the child, the jury was informed. Settlement proceeds paid to the plaintiffs’ parents for the parents’ separate personal claims are not chargeable to reduce the damages which the children were claiming in their separate suit.

The Commission argues that the plaintiffs were claiming compensation “for those very expenses for which the parent(s) were liable and for which the parents were compensated]].]” Brief of Appellant, p. 29. In Scott County School District One v. Asher, (1975), 263 Ind. 47, 52, 324 N.E.2d 496, 499, we stated:

However parent and child divide their claim for medical expenses, that division is of no consequence to the tort feasor, as long as he is not subject to pay twice for the same expenses. If either parent or child brings suit against the tort fea-sor and claims medical expenses which have already been claimed and awarded in an earlier suit, then the tort feasor may plead in answer that judgment and his payment pursuant thereto.

We find no indication that the Commission attempted to present evidence that any children’s medical expenses included in the evidence at trial had been paid from, or included as a portion of, the settlement compensation received by the parents in exchange for the covenants-not-to-sue. The mere receipt by the parents of a settlement which included compensation for their personal claims for loss of services resulting from the injuries to their children is not adequate to prove which portion, if any, was attributable to the children’s medical expenses. The consideration paid to the parents for items of their personal damage apart from medical expenses cannot be claimed as a set off against the children’s verdicts.

The Commission also argues that the trial court erred in failing to set off against the verdicts the following sums received under covenants-not-to-sue: Bonnie C. Morris, $26,000; Sherri Norton, $30,-000; Kathy L. Morris, $3,500.

Amounts received as consideration for covenants-not-to-sue and covenants-not-to-execute are treated as partial satisfaction applicable toward any resulting damages assessed against other tort-feasors, who are then entitled to pro tanto credit for such amount. Bedwell v. Debolt (1943), 221 Ind. 600, 50 N.E.2d 875; Steeg and Assoc. Inc. v. Rynearson (1968), 143 Ind.App. 567, 241 N.E.2d 888; Scott v. Krueger (1972), 151 Ind.App. 479, 280 N.E.2d 336. In Bedwell, this Court explained:

It is well settled that all joint tort-feasors liable for an injury are discharged by the unqualified release of one. The amount of the consideration paid for such a release is immaterial so long as it is sufficient to support a contract and the transaction is not tainted by fraud or mistake. Likewise, full satisfaction of such a claim for damages by one of the tort-feasors operates to discharge all, though no release is executed. On the other hand, it is equally well settled that a covenant not to sue one tort-feasor does not bar an action against the others, but only operates as a satisfaction of the damages, pro tanto, as to the benefits received.

221 Ind. at 609, 50 N.E.2d at 878-79.

Plaintiffs concede that the verdicts should be reduced accordingly, but contend that the amount should be subtracted from the total verdict, not from the judgment after reduction pursuant to the Tort Claims Act limitations. We agree.

As an enactment in derogation of common law, the statutory limitation on damages under the Tort Claims Act must be strictly construed and narrowly applied. The verdict of $700,000 in favor of plaintiff Bonnie C. Morris, after reduction by the $26,000 payment received by her, remains well in excess of her maximum judgment of $300,000. Plaintiff Sherri Norton’s verdict of $500,000, after reduction of $30,000, likewise remains in excess of her maximum $300,000 judgment. The $30,000 jury verdict in favor of Kathy L. Morris should be reduced by the $3,500 settlement received under her covenant-not-to-sue, thus resulting in a judgment of $26,500.

Defendant’s Liability for Costs

As to the Commission’s final issue, the plaintiffs concede that the Commission is correct that it cannot be liable for court costs in this matter. The parties have stipulated that the judgment erroneously declares that plaintiffs are entitled to their costs.

Transfer is granted, the Court of Appeals opinion is vacated, and this cause is remanded to the trial court for correction of judgment entry in accordance with this opinion.

SHEPARD, C.J., concurring with opinion in which DICKSON, J., concurs. DeBRULER, J., concurs. GIVAN, J., dissenting with opinion in which PIVARNIK, J., concurs.