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Divided appeals court affirms summary judgment for community action program

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A divided Indiana Court of Appeals panel on Friday affirmed a Marion Superior Court ruling that dismissed a case against a government-funded agency because the victims in a vehicle accident failed to provide notice under the Indiana Tort Claims Act.

John Schoettmer was driving his vehicle when he was in an accident with a vehicle that was being driven by Jolene C. Wright, who worked at South Central Community Action Program. Schoettmer was injured and sued after rejecting a $12,868 settlement offer from the agency to cover his medical expenses.

In John W. Schoettmer and Karen Schoettmer v. Jolene C. Wright and South Central Community Action Program, Inc., 49A04-1108-CT-406, Judge Melissa May wrote that the Schoettmers acknowledged that they didn’t provide notice to the agency as required in litigation against government agencies or political subdivisions that receive taxpayer funding.

“Instead, they assert their communications with South Central’s liability insurer, Cincinnati Insurance, substantially complied with the ITCA notice provisions. We disagree,” May wrote.  

“The trial court did not err when it granted Appellees’ motion for summary judgment. Schoettmers did not timely file their ITCA notice, nor may they find refuge from their failure in the theories of substantial compliance, waiver, and estoppel. Accordingly, we affirm the trial court,” May wrote in an opinion joined by Judge Elaine Brown.

Judge Terry Crone dissented and wrote that Schoettmer worked with the insurer after the accident in December 2008 until the settlement offer was made in September 2009. More than a year later, the Schoettmers sued, but the insurer did not assert a defense under provisions of ITCA until amending their response to the suit more than 60 days after the initial response.

“I would not hold the Schoettmers’ counsel to a higher standard of due diligence regarding discovery of South Central’s governmental status than I would South Central’s own counsel,” Crone wrote in a dissent in which he said he would reverse summary judgment in favor of South Central and stop South Central from asserting the Schoettmers’ noncompliance with the notice provisions of the ITCA as a bar to their claims.

“Cincinnati Insurance’s behavior was misleading and John’s complete ignorance regarding South Central’s governmental status was reasonable,” Crone wrote.

 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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