                                                                               FILED
                                                                           Mar 26 2020, 9:11 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
      Rosemary L. Borek                                          Karl L. Mulvaney
      James S. Stephenson                                        Nana Quay-Smith
      Stephenson Morow & Semler, P.C.                            Dentons Bingham Greenebaum
      Indianapolis, Indiana                                      LLP
                                                                 Indianapolis, Indiana
                                                                 R.T. Green
                                                                 Kellie C. Clark
                                                                 Collin W. Green
                                                                 Blackburn & Green
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      City of Columbus,                                          March 26, 2020
      Appellant/Cross-Appellee-Defendant,                        Court of Appeals Case No.
                                                                 19A-CT-1228
              v.                                                 Appeal from the
                                                                 Bartholomew Circuit Court
      Debra A. Londeree and Dan                                  The Honorable
      Londeree,                                                  Kelly S. Benjamin, Judge
      Appellees/Cross-Appellants-Plaintiffs.                     Trial Court Cause No.
                                                                 03C01-1801-CT-223



      Kirsch, Judge.


[1]   In this permissive interlocutory appeal, the City of Columbus (“the City”)

      appeals the trial court’s denial of its motion for summary judgment on Debra A.

      Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020                           Page 1 of 18
      Londeree’s (“Debra”) personal injury lawsuit, and, on cross appeal, Dan

      Londeree (“Dan”), challenges the trial court’s granting of the City’s motion for

      summary judgment against his loss of consortium claim. On appeal, the City

      raises two issues, which we consolidate and restate as whether there are

      material issues of fact about whether the City can be estopped from raising an

      affirmative defense against Debra’s personal injury claim. On cross appeal,

      Dan raises one issue, which we restate as whether the trial court erred in

      granting summary judgment on his loss of consortium claim because that claim

      is derivative of Debra’s personal injury claim.


[2]   We reverse in part, affirm in part, and remand.


                                  Facts and Procedural History
[3]   On January 16, 2016, Debra was standing in the parking lot of the Foundation

      for Youth of Bartholomew County (“FFY”) when she slipped and fell because

      the parking lot was icy. Appellant’s App. Vol. II at 13. Before leaving FFY’s

      premises, Debra filed an incident report with FFY. Id. at 75. On January 25,

      2016, Debra called the City’s Finance Operations and Risk Office (“Risk

      Office”) about her fall; however, she was told the City had not received the

      incident report that she had filed with FFY. Id. About three weeks after

      Debra’s fall, Colleen Stone (“Stone”), a City employee, called Debra and told

      her that “the insurance company would contact [her].” Id. The City’s

      insurance carrier was Tokio Marine Insurance, HHC (“Tokio Marine”), and

      FFY’s insurance carrier was Cincinnati Insurance. Id. at 93, 122.


      Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020       Page 2 of 18
[4]   About one week after she spoke to Stone, Debra received a call from Lori

      Dixon (“Dixon”), a field claims superintendent with Cincinnati Insurance,

      FFY’s insurer. Id. at 75, 122. Dixon had received a copy of the incident report.

      Id. at 112. Dixon did not work for the City or its insurer, Tokio Marine, and

      she did not tell Debra that she was acting on behalf of the City or Tokio

      Marine. Id. at 123, 143-144, 147. Any correspondence sent by Dixon identified

      FFY, not the City, as the entity holding the policy with Cincinnati Insurance.

      Id. at 123, 145, 149. Nonetheless, Debra believed Dixon was contacting her on

      behalf of the City. Id. at 75. Dixon recognized that Debra seemed confused

      about how to pursue her claim. Id. at 124. Debra relied on Dixon to know

      what was required to settle her claim. Id. at 76. Debra did not retain legal

      counsel until much later based on her interactions with Dixon, which led her to

      believe that filing the incident report was sufficient. Id.


[5]   Debra and Dixon communicated many times. Id. at 76, 120. At Dixon’s

      request, Debra gave a recorded statement. Id. at 112. Dixon visited the site of

      the incident and spoke to FFY to conduct a full investigation. Id. at 113-14.

      Per Dixon’s request, Debra signed a medical authorization and sent Dixon

      medical bills for payment.1 Id. at 76.


[6]   Early in her investigation, Dixon began to believe that FFY had no

      responsibility for Debra’s injuries, but that the City might bear some liability for



      1
       Cincinnati Insurance eventually paid a total of $5,000.00 for Debra’s medical bills, the limit under its
      medical pay coverage, which was available without regard to liability. Id. at 119, 145-46.

      Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020                                 Page 3 of 18
      Debra’s injuries because the City provided snow removal services for FFY. Id.

      at 114, 118-20. Dixon did not share these opinions with Debra until much

      later. In the meantime, Dixon advised Debra that they had two years to settle

      her claim before the statute of limitations would run. Id. at 116. Dixon advised

      Debra about her right to seek counsel. Id. at 116. Dixon never spoke to an

      adjuster from the City’s insurance carrier, Tokio Marine, about Debra’s claim

      against FFY. Dixon had no contact with Dan. Id. at 146.


[7]   On November 16, 2016, about ten months after Debra’s fall, Dixon mailed a

      letter to Debra, stating that FFY was neither negligent nor liable for Debra’s

      injuries. Id. at 76, 117-19, 139, 149. The letter was mailed approximately four

      months after the deadline for Debra to file a notice of tort claim with the City.2

      After receiving Dixon’s letter, Debra left messages for Jaime Brinegar at the

      City’s Risk Office, and she also continued to contact Dixon. Id. at 76. Neither

      Debra nor Dan served a tort claim notice on the City within 180 days after

      Debra fell on January 16, 2016. Id. at 176.


[8]   On January 16, 2018, Debra and Dan filed a complaint against both FFY and

      the City for Debra’s injuries from the fall at FFY and Dan’s loss of consortium

      resulting from Debra’s injuries. Id. at 13-15. In its answer, the City raised an

      affirmative defense (“the notice defense”), claiming that both Debra’s and

      Dan’s claims were barred because neither complied with the 180-day notice




      2
          See Ind. Code § 34-13-3-8(a).


      Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020        Page 4 of 18
requirement of the Indiana Tort Claims Act “(ITCA”). Id. at 16-19. On

August 24, 2018, the City filed a motion for summary judgment, again raising

the notice defense under Indiana Code section 34-13-3-8(a) and asking the trial

court to dismiss both Debra’s and Dan’s claims. Id. at 20-21.3 In their

response, Debra and Dan argued that the City should be estopped from

claiming that both Dan and Debra failed to comply with the ITCA’s notice

requirement because Debra had detrimentally relied on the acts of both the City

and FFY in not obtaining counsel and not pursuing a claim until after the time

limit under the ITCA had expired. Id. at 73-84. After conducting a hearing, the

trial court denied the City’s motion for summary judgment against Debra’s

claim, even though Debra did not file a timely notice as required by the ITCA.

Id. at 181. The trial court explained that there were material issues of fact

regarding: (1) Debra’s understanding of the relationship between FFY and the

City; and (2) whether her reliance on the representations of both FFY and the

City was reasonable. Id. at 178-81. The trial court found that these questions of

fact also created issues of fact about whether the City should be estopped from

raising the notice defense.


           The undisputed facts lead to conflicting material inferences
           sufficient to create a genuine issue of material fact as to Debra’s
           knowledge of the entity relationship or affiliation between FFY,
           the City, and their insurance companies, as well as detrimental-
           reliance elements regarding the statements, conduct, and
           representations by both [ ] Stone and Dixon. There is evidence



3
    FFY did not seek summary judgment. Appellant’s App. Vol. II at 2-12.


Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020               Page 5 of 18
               that could reasonably support a finding of estoppel, and therefore
               summary judgment is inappropriate.


       Id. at 180.


[9]    As to the granting of summary judgment against Dan’s loss of consortium

       claim, the trial court determined:


               Dan [ ] has made a separate claim for loss of services and loss of
               consortium . . . . Loss of consortium is an independent cause of
               action for purposes of the ITCA. Putnam County v. Caldwell, 505
               N.E.2d 85, 87 (Ind. App. 1987). A spouse claiming loss of
               consortium must serve his own tort claim notice in order to fulfill
               the notice requirements of the ITCA. Id. There is no evidence
               before the court that . . . Dan [ ] served written notice upon the
               City [ ]. Therefore, his claim is barred due to failure to fulfill the
               notice requirements of the ITCA.


       Id. at 177.


[10]   On April 17, 2019, the City filed its motion to certify the trial court’s ruling for

       interlocutory appellate review, and on May 5, 2019, the trial court granted the

       City’s request. Id. at 183-91, 210-11. On May 31, 2019, the City filed its

       motion seeking leave from this court to bring an interlocutory appeal, and on

       June 28, 2019, we granted the City’s request. Id. at 212-28; Appellant’s App. Vol.

       III at 2. On July 10, 2019, the City filed its notice of appeal. Appellant’s App.

       Vol. III at 4-8.




       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020           Page 6 of 18
                                       Discussion and Decision
[11]   “The purpose of summary judgment is to terminate litigation about which there

       can be no factual dispute and which may be determined as a matter of law.”

       Bd. of Sch. Comm’rs of City of Indianapolis v. Pettigrew, 851 N.E.2d 326, 330 (Ind.

       Ct. App. 2006), trans. denied. We review a summary judgment ruling de novo,

       applying the same standard as the trial court: “Drawing all reasonable

       inferences in favor of the non-moving parties, summary judgment is appropriate

       if the designated evidence shows no genuine issue as to any material fact and

       that the moving party is entitled to judgment as a matter of law.” Hughley v.

       State, 15 N.E.3d 1000, 1003 (Ind. 2014). A fact is material if its resolution

       would affect the outcome of the case, and an issue is genuine if a trier of fact is

       required to resolve the parties’ differing accounts of the truth, or if the

       undisputed material facts support conflicting reasonable inferences. Id. The

       initial burden is on the movant to demonstrate the absence of any genuine issue

       of fact; if the movant meets that burden, the burden shifts to the non-movant to

       present contrary evidence that demonstrates an issue for the trier of fact. Id.


[12]   The ITCA governs tort claims against governmental entities and public

       employees. Brown v. Alexander, 876 N.E.2d 376, 380 (Ind. Ct. App. 2007), trans.

       denied. The ITCA limits the State’s liability by barring a potential plaintiff’s suit

       unless he or she complies with the ITCA notice requirements. Id. “Such a

       limitation plainly is acceptable.” Id. The plaintiff must file the notice within

       180 days after the loss occurs. Ind. Code § 34-13-3-8. The notice must describe

       in a short, plain statement the facts upon which the claim is based. Ind. Code §

       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020            Page 7 of 18
       34-13-3-10. The purposes of the tort claim notice statute include informing the

       officials of the political subdivision with reasonable certainty about the accident

       and the surrounding circumstances so the political subdivision may investigate,

       determine its liability, and prepare a defense. Schoettmer v. Wright, 992 N.E.2d

       702, 707 (Ind. 2013). The notice requirement helps a governmental entity

       investigate an allegation while the facts are still “fresh and available.” Mills v.

       Hausmann-McNally, S.C., 55 F. Supp. 3d 1128, 1134 (S.D. Ind. 2014).


                                          I. The City’s Appeal
[13]   The City argues there are no material issues of fact about whether it should be

       estopped from raising the notice defense, i.e., that Debra failed to file a timely

       notice of tort claim. The City contends that it cannot be estopped from raising

       the defense based on FFY’s representations to Debra, even if it was reasonable

       for Debra to rely on those representations, because the City had no control over

       FFY’s representations to Debra. In response, Debra asserts that the trial court

       correctly determined that there are material issues of fact about whether it was

       reasonable for Debra to rely on FFY’s representations as representations made

       on behalf of the City and, therefore, whether the substance of those

       representations created material issues of fact about whether Debra’s failure to

       file a timely notice should be excused. In reply, the City maintains that Debra

       is inappropriately attempting to impute all of Dixon’s actions on behalf of FFY

       to the City.


[14]   All forms of estoppel are “based on the same underlying principle: one who by

       deed or conduct has induced another to act in a particular manner will not be
       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020          Page 8 of 18
       permitted to adopt an inconsistent position, attitude, or course of conduct that

       causes injury to such other.” Town of New Chicago v. City of Lake Station ex rel.

       Lake Station Sanitary Dist., 939 N.E.2d 638, 653 (Ind. Ct. App. 2010), trans.

       denied. Estoppel is a “bulwark for fundamental fairness against intentional

       deception; it applies if ‘one party, through its representations or course of

       conduct, knowingly misleads or induces another party to believe and act upon

       his or her conduct in good faith and without knowledge of the facts.’” Mills, 55

       F. Supp. 3d at 1137 (quoting Purdue Univ. v. Wartell, 5 N.E.3d 797, 807 (Ind. Ct.

       App. 2014).


[15]   The elements of equitable estoppel are: (1) a representation or concealment of a

       material fact; (2) made by a person with knowledge of the fact and with the

       intention that the other party act upon it; (3) to a party ignorant of the fact; and

       (4) that representation or concealment induces the other party to rely or act

       upon it to his detriment. Am. Family Mut. Ins. Co. v. Ginther, 803 N.E.2d 224,

       234 (Ind. Ct. App. 2004), trans. denied. “The party claiming estoppel has the

       burden to show all facts necessary to establish it.” Story Bed & Breakfast, LLP v.

       Brown Cty. Area Plan Comm’n, 819 N.E.2d 55, 67 (Ind. 2004). The State will not

       be estopped in the absence of clear evidence that its agents made

       representations upon which the party asserting estoppel relied. Id.


[16]   In deciding whether estoppel is appropriate, we “must focus on the conduct of

       the governmental entity; the crucial question is whether the governmental unit

       had actual knowledge of and investigated the accident and surrounding

       circumstances.” Madison Consol. Sch. v. Thurston, 135 N.E.3d 926, 929-30 (Ind.

       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020         Page 9 of 18
       Ct. App. 2019) (emphasis added). Facts that demonstrate a governmental

       entity’s actual knowledge, and thus potentially provide a basis to estop the

       government from raising a notice defense, include the government’s prompt

       investigation of a claim and:


               preparation of a defense or admissions of liability; letters or
               writings involving descriptions of the incident, causes and
               conditions thereof or the nature and extent of injuries; promises;
               payments; settlements or other conduct or acts of the defendant
               or his agents or of the plaintiff . . . .


       Delaware Cty. v. Powell, 272 Ind. 82, 85, 393 N.E.2d 190, 192 (1979). “[T]hese

       acts and conduct could constitute a waiver of notice or create an estoppel.” Id.

       (emphasis added).


[17]   However, even these activities are insufficient to estop a government from

       raising a notice defense; a plaintiff is still required to comply with the notice

       requirement unless the actions of the government unit induced the plaintiff to

       believe that filing a notice of tort claim was not required. See Coghill v. Badger,

       418 N.E.2d 1201, 1208 n.6 (Ind. Ct. App. 1981). In other words, “[the] acts of

       the governmental unit must have induced the plaintiff to believe that formal notice was

       unnecessary.” Id. (emphasis added). Under such circumstances it is appropriate

       to estop a government entity from raising the defense that the plaintiff did not

       comply with the notice requirement. See Delaware Cty., 272 Ind. at 85, 393

       N.E.2d at 192.




       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020          Page 10 of 18
[18]   In several cases, Indiana courts have addressed whether there were material

       issues of fact about whether a governmental entity should be estopped from

       raising a notice-of-tort-claim defense, and we briefly review five of those cases,

       with the first four cases finding material issues of fact regarding estoppel and the

       fifth case finding no such material issues of fact. First, in Delaware County,

       which involved a Delaware County truck that struck another vehicle, the

       Indiana Supreme Court found material issues of fact about whether Delaware

       County should be estopped from raising a notice-of-tort-claim defense because

       Delaware County’s insurance carrier admitted liability, made payments to the

       plaintiff totaling $19,000, and told the plaintiff that “they would take care of

       everything.” 272 Ind. at 82-83, 393 N.E.2d at 190-91. Second, in Madison

       Consolidated School, a case where a school bus passenger sued the Madison

       County schools for injuries incurred during a bus accident, we found material

       issues of fact about whether Madison County should be estopped from raising

       the tort notice defense because 1) Madison County’s insurance carrier failed to

       tell the injured party about the requirements of the ITCA, 2) the insurance

       carrier encouraged the injured party to complete medical treatment before

       seeking settlement, and 3) the injured party relied on the insurance carrier’s

       advice. 135 N.E.3d at 930-31. Third, in Allen v. Lake County Jail, we found

       material issues of fact about whether Lake County should be estopped from

       raising a notice-of-tort-claim defense because after Allen reported to the Lake

       County Jail that some of his personal property had disappeared, Lake County

       promised to fully reimburse Allen for his loss, in effect representing that

       litigation would be rendered unnecessary by settlement. 496 N.E.2d 412, 417-
       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020        Page 11 of 18
       17 (Ind. Ct. App. 1986). Fourth, in Schoettmer, the Indiana Supreme Court

       found there were material issues of fact regarding estoppel where the

       governmental entity’s agent told the plaintiff, at least twice, that “it would be in

       his best interest to wait until he is released from treatment” before he should try

       to settle the claim. 922 N.E.2d at 709.


[19]   Fifth, and finally, the plaintiff in Coghill was hurt while riding an Indianapolis

       bus, so he sued the Indianapolis Public Transportation Corporation (“the

       Corporation”). 418 N.E.2d at 1202-03. The only actions taken by the

       Corporation’s claims adjuster were to write a memo, at the request of plaintiff’s

       attorney, that acknowledged receipt of the attorney’s letter of representation

       and invited the attorney to contact the claims adjuster later, and to telephone

       the attorney, again at attorney’s request, to discuss the plaintiff’s damages. Id.

       at 1208. The trial court entered summary judgment for the Corporation,

       finding these activities presented no material issues of fact that would justify

       estopping the Corporation from raising a notice-of-tort claim defense. Id. at

       1203, 1208-09. We affirmed the trial court. Id. at 1213.


[20]   Here, the trial court erred in denying the City’s motion for summary judgment

       on Debra’s personal injury claim. As we analyze the issue of estoppel, we must

       focus on the activities of the City. See Madison Consol. Sch., 135 N.E.3d at 929-

       30 (“[We] must focus on the conduct of the governmental entity; the crucial

       question is whether the governmental unit had actual knowledge of and

       investigated the accident and surrounding circumstances”). Even assuming that

       Stone, a City employee, intended to mislead Debra by telling her that “the

       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020        Page 12 of 18
       insurance company would contact [her[,]]” Appellant’s App. Vol. II at 75, the

       undisputed facts show that the City did nothing to induce Debra to believe that

       formal compliance with the notice requirement was not necessary. See Coghill,

       418 N.E.2d at 1208 n.6. Thus, the trial court erred in ruling that there were

       material issues of fact about whether the City should be estopped from raising

       the notice defense.


[21]   In greater detail, we observe that a failure to file a notice of tort claim may be

       excused if the purposes of the notice statute are fulfilled. Delaware Cty., 272 Ind.

       at 85, 393 N.E.2d at 192. The purposes of the notice statute include giving a

       government entity notice to investigate a claim while the facts are still “fresh

       and available” to acquire reasonable certainty about the facts and circumstances

       so the government entity may determine its liability and prepare a defense. See

       Mills, S.C., 55 F. Supp. 3d at 1134; Schoettmer, 992 N.E.2d at 706-07. Here,

       while Dixon acquired some such information through her investigation on

       behalf of FFY, the City did not investigate the claim and acquire the requisite

       knowledge to satisfy the purposes of the notice statute. Thus, the City did not

       have actual knowledge of Debra’s fall at FFY.


[22]   However, even if the City had actual knowledge of Debra’s fall at FFY, it still

       would have been improper, as a matter of law, to estop the City from raising the

       notice defense. The undisputed evidence shows that, after Stone called Debra,

       the City engaged in no activities or communications with Debra. The City did

       not: 1) investigate Debra’s claim; 2) ask Debra to forward her medical bills; 3)

       promise to pay Debra’s medical bills; 4) solicit information about other

       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020        Page 13 of 18
       expenses; 5) admit liability; or 6) offer to settle Debra’s claim. See Delaware Cty.,

       at 272 Ind. at 85, 393 at 192. Therefore, we conclude, “[the] acts of the [City

       did not induce Debra] to believe that formal notice was unnecessary.” See Coghill,

       418 N.E.2d at 1208 n.6 (emphasis added).


[23]   The following cases, discussed in greater detail above, held that estoppel against

       a notice-of-tort-claim defense was a matter for the trier of fact, but the cases are

       distinguishable: 1) Schoettmer, 992 N.E.2d at 709-10 (government’s agent told

       the plaintiff that “it would be in his best interest to wait until he is released from

       treatment” before trying to settle the claim); 2) Delaware Cty., 272 Ind. at 82-83,

       393 N.E.2d at 190-91 (Delaware County’s insurance carrier admitted liability,

       made payments to the plaintiff totaling $19,000, and told the plaintiff that “they

       would take care of everything”); 3) Madison Consol. Sch., 135 N.E.3d at 930-31

       (insurance carrier encouraged the injured party to complete medical treatment

       before seeking settlement); and 4) Allen, 496 N.E.2d at 416-17 (Lake County

       promised to fully reimburse Allen for personal items missing from the Lake

       County Jail).


[24]   Coghill, however, supports our conclusion. After Coghill sued the Corporation

       for injuries he suffered on a bus, the Corporation filed an affirmative defense

       that Coghill failed to file a timely notice of tort claim. Coghill sought to estop

       the Corporation from using this defense because he claimed the purposes of the

       notice statute had been fulfilled. See Coghill, 418 N.E.2d at 1208. Yet, the only

       actions taken by the Corporation’s claims adjuster were to write a memo

       acknowledging receipt of the letter of representation from the plaintiff’s attorney

       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020         Page 14 of 18
       and to telephone the attorney to discuss the plaintiff’s damages. Id. We found

       that these activities presented no material issues of fact that would justify

       estopping the Corporation from raising a notice-of-tort claim defense. Id.


[25]   We conclude that, because the modest level of communication between Coghill

       and the Corporation was insufficient to create material issues of fact about

       whether the Corporation could be estopped from raising the notice defense,

       here, the complete absence of communication (after Stone’s phone call)

       between the City and Debra make it equally, if not more, inappropriate to estop

       the City from using the notice defense. This is so even if there are material

       issues of fact about Debra’s understanding of the relationship between FFY and

       the City and regardless of whether Debra’s belief that Dixon was working on

       behalf of the City was reasonable. With estoppel, we focus on the activities of

       the governmental entity, here, the City, and whether those activities led Debra

       to reasonably believe that formal compliance with the notice requirement was

       not required. Madison Consol. Sch., 135 N.E.3d at 929-30; Coghill, 418 N.E.2d at

       1208 n.6. The State will not be estopped in the absence of clear evidence that

       its agents made representations upon which the party asserting estoppel relied.

       Story Bed & Breakfast, 819 N.E.2d at 67. Because the City engaged in no activity

       with Debra after Stone’s phone call to Debra, the issues of fact about Debra’s

       knowledge and reliance do not control our disposition of this case. See Delaware

       Cty., 272 Ind. at 85, 393 N.E.2d at 192; Coghill, 418 N.E.2d at 1208 n.6.


[26]   Finally, we agree with the City that to impute Dixon’s conduct on behalf of

       FFY to the City would not serve the deterrent purpose of estoppel: “There is

       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020        Page 15 of 18
       no deterrent effect of equitable estoppel when the party to be deterred cannot

       control the representations of the third party which induced the reliance.”

       Appellant’s Br. at 20. Estoppel is designed to discourage a person or entity from

       making a representation, inducing another person to act, and to then “adopt an

       inconsistent position, attitude, or course of conduct that causes injury to such

       other.” Town of New Chicago, 939 N.E.2d at 653. Estoppel is a bulwark for

       basic fairness. Mills, 55 F. Supp. 3d at 1137 (discussing Purdue Univ., 5 N.E.3d

       797 at 807. Here, the City did not adopt an inconsistent position because it did

       not even take an initial position regarding Debra’s claim. However, even if

       Stone’s phone call is deemed an initial position regarding Debra’s claim, the

       City did not take a subsequent inconsistent position because it took no position

       whatsoever after Stone called Debra. Imputing Dixon’s activities to the City

       would not serve the fairness principles undergirding estoppel.


[27]   In sum, we find that there are no material issues of fact that estop the City from

       raising its notice defense. Because it is undisputed that Debra did not file a

       notice of tort claim, we direct the trial court on remand to enter summary

       judgment for the City against Debra’s personal injury claim.


                                        II. Dan’s Cross Appeal
[28]   Dan argues that if we affirm the trial court’s ruling that Debra’s claim against

       the City should survive summary judgment, we should reverse the entry of

       summary judgment against his loss of consortium claim because such claims

       are “derivative,” that is, such claims derive validity from the personal injury


       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020       Page 16 of 18
       claim of the injured spouse. See Appellees’ Br. at 18. In response, the City

       concedes that, for some purposes, loss of consortium claims are derivative, but

       for purposes of filing a notice of tort claim, such a claim is an independent

       claim, thus requiring Dan to file his own notice of tort claim. Because the

       undisputed evidence shows that Dan did not file such a notice, the City urges us

       to affirm the trial court’s entry of summary judgment against Dan’s claim.


[29]   In granting summary judgment against Dan’s loss of consortium claim, the trial

       court stated:


               Loss of consortium is an independent cause of action for
               purposes of the ITCA. Putnam County v. Caldwell, 505 N.E.2d 85,
               87 (Ind. App. 1987). A spouse claiming loss of consortium must
               serve his own tort claim notice in order to fulfill the notice
               requirements of the ITCA. Id. There is no evidence before the
               court that . . . Dan [ ] served written notice upon the City [ ].
               Therefore, his claim is barred due to failure to fulfill the notice
               requirements of the ITCA.


       Appellant’s App. Vol. II at 177.


[30]   In Board of Commissioners of Cass County v. Nevitt, we held that while a loss of

       consortium claim is “derivative,” termination of the spouse’s personal injury

       claim does not necessarily terminate the loss of consortium claim. 448 N.E.2d

       333, 340 (Ind. Ct. App. 1983). In fact, unless the personal injury is invalid on

       the merits, a loss of consortium claim may proceed if the personal injury claim

       has been disposed of. Id. at 342. Stated differently, if the personal injury claim

       terminates because of a “procedural bar” unrelated to the merits of the injured


       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020        Page 17 of 18
       spouse’s claim, the loss of consortium claim may still proceed. Id. at 341.

       Examples of procedural bars include the running of a statute of limitations and

       the injured spouse settling his or her claim with the defendant. Id. at 341-42.


[31]   Here, our ruling that the trial court should enter summary judgment against

       Debra’s personal injury claim is based on a procedural bar, the failure to file a

       timely notice of tort claim, not a determination on the merits of her personal

       injury claim. This would appear to allow Dan’s loss of consortium claim to

       proceed, despite Dan’s understanding to the contrary. However, citing Putnam

       County v. Caldwell, 505 N.E.2d 85, 87 (Ind. Ct. App. 1987), here, the trial court

       observed that when a spouse is pursuing a loss of consortium claim against a

       governmental entity, that spouse must file his own notice of tort claim. .

       Because the undisputed evidence is that Dan did not file a notice of tort claim,

       we affirm the trial court’s entry of summary judgment against Dan’s loss of

       consortium claim.


[32]   Reversed in part, affirmed in part, and remanded.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-1228 | March 26, 2020       Page 18 of 18
