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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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