HUTCHINSON v. WIGGINGTON

Filing 31

ORDER granting 23 Motion for Summary Judgment. A separate judgment shall issue. See Order for details. Signed by Judge Sarah Evans Barker on 2/12/2014. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

BERTHA HUTCHINSON,
Plaintiff,
vs.
SPARK WIGGINGTON and
NEW ALBANY-FLOYD COUNTY
CONSOLIDATED SCHOOL
CORPORATION,
Defendants.

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4:12-cv-117- SEB-WGH

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(Docket No. 23)
This personal injury case is in federal court on the basis of diversity jurisdiction. It is now
before us on Defendants’ Motion for Summary Judgment.
FACTS
On November 4, 2010, Plaintiff, a pedestrian, was struck by a school bus driven by Spark
Wiggington in the course and scope of his employment with the New Albany-Floyd Consolidated
School Corporation (the “School Corporation”). The very next day, the School Corporation’s
liability insurer, Indiana Insurance, opened a file and promptly began investigating the incident. Just
six days after the occurrence, on November 10, 2010, Indiana Insurance interviewed its insured
driver, Wiggington, by telephone about what had happened.
On November 15, 2010, two Kentucky lawyers wrote a letter to Indiana Insurance advising
that they were representing Plaintiff in connection with the accident. That letter, in its entirety, read:
Please be advised that our office represents Bertha Hutchinson for
serious injuries she sustained when struck by Mr. Wigginton’s

vehicle.
Please advise if there are med-pay benefits available.
Also, please send us copies of any photographs, property damage or
otherwise, statements, or other documentation you may have
regarding this claim.
Please acknowledge receipt of this correspondence in writing. Thank
you.
[Letter at Dkt No. 25-2.]
Nine months later, on August 19, 2011, Indiana Insurance received a “demand package”
from Plaintiff’s Kentucky lawyers outlining the amount of Plaintiff’s medical bills and lost wages.
Five days thereafter, on August 24, 2011, Indiana Insurance advised Plaintiff’s Kentucky lawyers
that the School Corporation was denying liability for the accident.
On October 3, 2012, Plaintiff, by and through an Indiana lawyer licensed to practice in this
Court, filed her Complaint in this action. When Defendants filed their Answer, they asserted as an
affirmative defense that Plaintiff’s claims were barred because Plaintiff had failed to provide them
with the written tort claim notice required by Ind. Code § 34-13-3-8. Defendants have now moved
for summary judgment on that basis.
STANDARD OF REVIEW
Summary judgment is appropriate when the record shows that there is “no genuine issue as
to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

If the moving party supports its motion

for summary judgment with affidavits or other materials, the burden shifts to the non-moving party
to show that an issue of material fact exists. Kaszuk v. Bakery & Confectionery Union & Indus.
Int’l Pension Fund, 791 F.2d 548, 588 (7th Cir. 1986).
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DISCUSSION
The Indiana Tort Claims Act provides that a tort claim against a government entity, including
a government employee acting in the course and scope of his or her employment, is barred unless
the claimant provides the entity with notice of the claim within 180 days of the loss.1 Ind. Code §
34-13-3-8. 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 that the loss occurred, the names of the persons involved, if known, the amount of damages
sought, and the residence of the person making the claim both at the time of the loss and at the time
the notice is filed. Ind. Code § 34-13-3-10. The purpose of the notice is to provide the government
entity the opportunity to investigate the facts surrounding the incident so that it may determine its
liability and prepare a defense. Hasty v. Floyd Memorial Hospital, 612 N.E.2d 119, 123 (Ind. Ct.
App. 1993).
Plaintiff concedes that she did not provide a tort claim notice in accordance with Ind. Code
§ 34-13-3-8 to either Wiggington or the School Corporation. Nevertheless, she insists that her
claims in this action are not barred. Citing Galbreath v. City of Indianapolis, 255 N.E.2d 225, 229
(Ind. 1970), Plaintiff notes that the Indiana Tort Claims Act is not meant to be a “trap for the
unwary” and she correctly observes that a party’s imperfect, but “substantial compliance” may
satisfy the statutory notice requirement when the purposes of the statute are satisfied. She, thus,
asserts a sort of “no harm, no foul” argument – that because Indiana Insurance had actual knowledge

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Indiana Code § 34-13-3-5(b) provides that,“A lawsuit alleging that an employee
acted within the scope of the employee’s employment bars an action by the claimant against the
employee personally.” Plaintiff concedes that Wigginton was operating the school bus involved
in the accident within the scope and course of his employment with the School Corporation and
has not sued Wigginton in his personal capacity. [Plaintiff’s Complaint, ¶ 9 at Dkt. No. 1 and
Plaintiff’s Memorandum of Law, p. 1 at Dkt. No. 28.]
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of the accident and promptly investigated it, interviewing its insured driver within six days of the
occurrence, Defendants were not prejudiced in their ability to determine liability or prepare a
defense and, because they were not so prejudiced, the purpose of the Indiana Tort Claims Act was
satisfied such that there has been substantial compliance with that statute. In support of her
argument, Plaintiff cites City of Tipton v. Baxter, 593 N.E.2d 1280 (Ind. Ct. App. 1992). In that
case, which involved a collision between two motor vehicles, the Indiana Court of Appeals found
that there had been substantial compliance with the Indiana Tort Claims Act – notwithstanding the
claimant’s complete failure to provide a written tort claim notice – because the government entity’s
liability insurer had actual knowledge of and promptly investigated the accident.
The problem with Plaintiff’s argument is that City of Tipton v. Baxter was overruled by the
Indiana Supreme Court in Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013). Indeed, in
Schoettmer, Indiana’s highest court held that under Indiana law, a claimant’s communications with
a government entity’s insurer, absent anything more, even where the insurer investigates the
accident or occurrence, does not create substantial compliance with the notice requirement of the
Indiana Tort Claims Act. Id. at 708. Here, Plaintiff communicated only with Indiana Insurance and
not with the defendants themselves and, thus, she did not substantially comply with the Indiana Tort
Claims Act.
CONCLUSION
Plaintiff’s reliance of City of Tipton v. Baxter is misplaced because that case is no longer
good law. Given the ruling in Schoettmer, Indiana Insurance’s knowledge and investigation of the
accident involving Plaintiff and Wiggington does not create substantial compliance with the Indiana
Tort Claim Act. Accordingly, Defendants’ Motion for Summary Judgment is GRANTED. A

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separate judgment shall issue.
IT IS SO ORDERED.
02/12/2014
Date: ________________
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Copies to:
William F. English
KIGHTLINGER & GRAY, LLP-New Albany
[e-mail]
Richard T. Mullineaux
KIGHTLINGER & GRAY, LLP-New Albany
[e-mail]
Matthew J. Schad
SCHAD & SCHAD
[e-mail]

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