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Friday, July 13, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In John W. Schoettmer and Karen Schoettmer v. Jolene C. Wright and South Central Community Action Program, Inc., a 16-page, 2-1 opinion, Judge May writes:

It is undisputed that, as a designated community action agency, South Central is a political subdivision pursuant to the ITCA. See IC 34-13-3-22. The ITCA bars tort claims against a political subdivision unless notice of the claim is filed with the governing body of that political subdivision within 180 days after the loss occurs. IC 34-13-3-8(a). * * *

Schoettmers concede they never gave notice or attempted to give notice of their claims to South Central. Instead, they assert their communications with South Central’s liability insurer, Cincinnati Insurance, substantially complied with the ITCA notice provisions. We disagree. * * *

Schoettmers made no attempt to comply with the notice provisions of the ITCA. They never filed a notice of their claims, adequate or inadequate, with South Central, Cincinnati Insurance, or any other entity. They maintain Cincinnati Insurance had actual knowledge of their claims and assert such knowledge should be viewed as notice to South Central because, as South Central’s liability insurer, Cincinnati Insurance “may be properly viewed as an agent of South Central . . . .” The Schoettmers cite no legal authority that supports the proposition that a governmental entity’s liability insurer is its agent for purposes of receiving notice pursuant to the ITCA, and the decisions addressed above support the opposite conclusion. * * *

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. Affirmed.

BROWN, J., concurs.
CRONE, J., dissents with separate opinion. [that begins, at p. 14] I agree with the majority’s conclusion that because the Schoettmers did not even attempt to give notice of their claims to South Central, they cannot be said to have substantially complied with the notice requirements of the ITCA. Further, I agree that South Central did not waive its affirmative defense of such noncompliance. However, I believe that South Central should be estopped from asserting the Schoettmers’ noncompliance with the ITCA. The Schoettmers were unaware of South Central’s governmental status, Cincinnati Insurance made representations upon which the Schoettmers justifiably relied, the purpose of the notice requirement of the ITCA was clearly accomplished, and there was a lack of prejudice to South Central. Therefore, I must respectfully dissent.

In Brotherhood Mutual Insurance Company as Subrogee of Plymouth Wesleyan Church v. Michiana Contracting, Inc., McGrath Refrigeration, Inc., John D. McGrath, Joseph A. Dzierla and Assoc., Inc., et al., a 10-page opinion, Judge May writes:
Brotherhood Mutual Insurance Company), as subrogee of Plymouth Wesleyan Church, appeals summary judgment for Michiana Contracting, Inc.; McGrath Refrigeration, Inc. and John D. McGrath; Joseph A. Dzierla and Associates, Inc.; and Shambaugh & Son, L.P. (collectively, “Appellees”). Brotherhood presents three issues for our review, one of which is dispositive: whether the wooden gym floor, which was the subject of the Church’s insurance claim with Brotherhood, was within the scope of work pursuant to the contract and therefore subject to a waiver of subrogation. * * *

The installation of the wooden gym floor was not accepted as part of the work and thus not added to the total owed to Michiana, and the Church in fact installed the wooden gym floor at issue. The wooden gym floor therefore was not within the “Scope of Work” forthe project and therefore was not subject to the waiver of subrogation. Therefore, we reverse the summary judgment and remand for proceedings consistent with this opinion. Reversed and remanded.

In Corey Cole v. State of Indiana , a 10-page opinion, Judge May concludes:
The trial court did not commit reversible error when it sustained the State’s objection to Cole’s attempt to refresh J.S.’s memory with the notes from the nurse; J.S.’s testimony would have been cumulative of the nurse’s testimony. In addition, no fundamental error occurred when the court admitted hearsay statements: Cole invited some of the error, the uninvited statements were cumulative of other testimony, and they did not likely contribute to the decision regarding Cole’s guilt. Accordingly, we affirm.
NFP civil opinions today (3):

Term. of the Parent-Child Rel. of B.M. and A.M. (Minor Children) and J.R. (Mother) v. The Indiana Dept. of Child Services (NFP)

Swammi, Inc., f/k/a Swami, Inc. v. Shambaugh, Kast, Beck, Williams, LLP and John S. Bloom (NFP)

Nancy J. Ferguson and Nyla R. Hamilton v. Natalie A. Watkins (NFP)

NFP criminal opinions today (5):

Robert Hatcher v. State of Indiana (NFP)

Michael J. Gosnell v. State of Indiana (NFP)

Alpha Holder, Jr. v. State of Indiana (NFP)

Donald Humphrey v. State of Indiana (NFP)

Devonte Rogers v. State of Indiana (NFP)

Posted by Marcia Oddi on July 13, 2012 10:42 AM
Posted to Ind. App.Ct. Decisions