Omitted information in notice does not bar entry of summary judgment

September 11, 2014

Failure in a notice of dissolution to describe information that must be included in a claim filed against the company does not make the notice invalid, the Indiana Court of Appeals ruled Thursday. Since the notice was valid, a convenience store owner’s lawsuit is time-barred.  

In 1991 the Indiana Department of Environmental Management filed a complaint against Robert Wanamacher and his Bourbon Mini-Mart Inc. seeking reimbursement for the cleanup of contaminants from the store property and the adjoining property that once housed a gas station. In 2003, Wanamacher and his company sued Lewis Oil Inc., claiming it owned and operated underground storage tanks on the gas station property that leaked and caused the contamination.

Both parties sought summary judgment. Lewis Oil argued that since it voluntarily dissolved in 1997, any claims against it had to be brought within two years after it published notice of the dissolution.

Wanamacher and Bourbon Mini-Mart argued that the notice didn’t comply with I.C. 23-1-45-7 because it did not contain a description of “the information that must be included in a claim” as required by the statute, so their complaint is not time-barred.

The trial court denied both parties’ motions for summary judgment. On interlocutory appeal, the Court of Appeals in Lewis Oil, Inc. v. Bourbon Mini-Mart, Inc. and Robert E. Wanamacher, 50A03-1311-CP-441, ordered the court to grant Lewis Oil’s motion.  

“The requirement that a notice of dissolution describe ‘the information that must be included in a claim’ is clearly intended for the benefit and protection of the dissolved corporation, which could deny a claim on the basis that it does not include the information described in the notice.  Indiana Code Section 23-1-45-7(b)(2) allows a dissolved corporation to establish the parameters for claims made against it, much as the notice provisions of the Indiana Tort Claims Act allow the State to ‘prescribe for itself the terms and conditions upon which it consents to be sued,’” Judge Terry Crone wrote.

“… a reasonable person/claimant would not be misled by the omission because he or she would have firsthand knowledge of the claim. The question then becomes whether Lewis Oil’s notice was ‘in substantial compliance with the time and publication requirements applicable under’ Indiana Code Section 23-1-45-7. The ‘time’ requirement is not at issue, and the notice was published in a newspaper of general circulation in Kosciusko County, where Lewis Oil’s principal office was last located, in full compliance with the requirements of Indiana Code Section 23-1-45-7.”



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