                                                             FILED
                                                          Jun 26 2012, 9:39 am
FOR PUBLICATION
                                                                  CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

JUSTIN F. ROEBEL                              JAMES H. YOUNG
Office of Corporation Counsel                 Young & Young
Indianapolis, Indiana                         Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA


CITY OF INDIANAPOLIS,                         )
                                              )
                                              )
       Appellant-Defendant,                   )
                                              )
              vs.                             )      No. 49A02-1108-CT-782
                                              )
RACHAEL BUSCHMAN,                             )
                                              )
       Appellee-Plaintiff.                    )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable John F. Hanley, Judge
                           Cause No. 49D11-1007-CT-30321


                                     June 26, 2012

                              OPINION - FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       The City of Indianapolis (“the City”) appeals the trial court’s entry of summary

judgment in favor of Rachael Buschman on the issue of the sufficiency of her tort claim

notice. We reverse and remand.

                                           Issue

       The City raises one issue, which we restate as whether Buschman’s tort claim

notice was sufficient to notify the City of her personal injury claims.

                                           Facts

       On July 25, 2008, Buschman was rear-ended by an Indianapolis police officer on

86th Street in Indianapolis. On August 1, 2008, Buschman submitted a tort claim notice

to the City. Buschman’s notice included her name, address, and phone number; the time

and place of the accident; the police officer’s name, date of birth, and driver’s license

number; the accident report number; and the investigating officer’s identification number.

The notice also provided:

              Damage:       Rear Bumper and side panels damaged, see
                            estimate from Sam Swope. No injuries.

              Claim:        $960.99

App. p. 19. Buschman enclosed photos, the accident report, and a damage repair estimate

with her notice.

       On July 9, 2010, Buschman filed a complaint against the City, alleging that as a

result of the City’s negligence she “suffered personal injuries, including left hip pain,

right leg pain, lower back pain and herniation of her lumbar discs at L4-5.” App. p. 8.


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Buschman also alleged that she had incurred medical expenses, had lost time and

earnings from work, and had endured great pain, suffering, and mental anguish.1

       On October 28, 2010, the City filed its answer. As an affirmative defense, the

City asserted that Buschman’s claims were barred because her tort claim notice was

insufficient. That same day, the City moved for judgment on the pleadings based on

Buschman’s tort claim notice. Buschman responded, relying in part on her affidavit

explaining that she mailed her tort claim notice four days after the accident and that at

that time she “only had soreness” and did not believe she had an injury. App. p. 52.

According to the affidavit, only later did Buschman realize she had injuries from the

accident and seek medical treatment. Buschman later moved for summary judgment, as

opposed to judgment on the pleadings, based on the parties’ references to matters outside

the pleadings. Following a hearing, the trial court concluded that Buschman’s tort claim

notice was sufficient as a matter of law and granted summary judgment on this issue in

Buschman’s favor. The order was certified for interlocutory appeal, and we accepted

jurisdiction over the City’s appeal.

                                              Analysis

       The City argues that Buschman was not entitled to summary judgment because her

tort claim notice did not substantially comply with the notice requirements of the Indiana

Tort Claims Act (the “Act”). We review a trial court’s ruling on a motion for summary

judgment using the same standard applicable to the trial court. Perdue v. Gargano, 964

1
    The complaint initially named Buschman’s husband, Jeffry, as a plaintiff and the Indianapolis
Metropolitan Police Department as a defendant. Stipulations of dismissal relating to these parties were
filed, leaving Buschman and the City as the only remaining parties.
                                                  3
N.E.2d 825, 831 (Ind. 2012). “Summary judgment is appropriate only if the designated

evidence reveals ‘no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.’” Id. (quoting Ind. Trial Rule 56(C)). All facts

and reasonable inferences drawn from the evidence designated by the parties are

construed in the light most favorable to the non-moving party. Id. “We do not defer to

the trial court’s determination of the law.” Id.

          According to the Act, for a party to bring a tort claim against a political

subdivision, the political subdivision must receive notice within 180 days after a loss

occurs. Howard County Bd. of Comm’rs v. Lukowiak, 810 N.E.2d 379, 381 (Ind. Ct.

App. 2004) (citing Ind. Code § 34-13-3-8), clarified on reh’g, 813 N.E.2d 391. The

notice:

                must describe in a short and plain statement the facts on
                which the claim is based. The statement must include the
                circumstances which brought about the loss, the extent of the
                loss, the time and place the loss occurred, the names of all
                persons involved if known, the amount of the damages
                sought, and the residence of the person making the claim at
                the time of the loss and at the time of filing the notice.

I.C. § 34-13-3-10.2

          Our supreme court has explained:


2
   Buschman makes much of the fact that a previous version of the Act required a description of, among
other things, “‘the nature and extent of the injury to person and loss, injury or damage, if any, to property,
. . . and the nature of the damages arising to anyone therefrom . . . .’” City of Evansville v. Rieber, 179
Ind. App. 256, 258, 385 N.E.2d 217, 220 (1979) (quoting Ind. Ann. Stat. § 48-8001). She asserts that the
City should not attempt to write back into the statute what the Legislature deleted. We agree with the
City, however, that the current version’s reference to “the extent of the loss,” and “the amount of the
damages sought,” is another, less redundant way of saying the same thing as the previous statute. I.C. §
34-13-3-10.


                                                      4
              a notice is sufficient if it substantially complies with the
              content requirements of the statute.         What constitutes
              substantial compliance, while not a question of fact but one of
              law, is a fact-sensitive determination. In general, a notice that
              is filed within the 180 day period, informs the municipality of
              the claimant’s intent to make a claim and contains sufficient
              information which reasonably affords the municipality an
              opportunity to promptly investigate the claim satisfies the
              purpose of the statute and will be held to substantially comply
              with it.

Collier v. Prater, 544 N.E.2d 497, 499 (Ind. 1989).           The Collier court rejected a

formalistic approach and stated that the crucial consideration is whether the notice

supplied by the claimant of his or her intent to take legal action contains sufficient

information for a political subdivision to ascertain the full nature of the claim against it so

that it can determine its liability and prepare a defense. Id. at 500. According to Collier,

“[w]hat information is sufficient will vary depending on the facts of each case.” Id.

       In Collier, our supreme court analyzed whether a notice that identified Collier as

the claimant, stated an intent to seek damages, noted that the damages were for injuries

received during an arrest, identified the persons involved in that arrest, and explained that

the full extent of his damages could not be ascertained at that time was sufficient. Id.

The court held that the failure to include the place or the date of the event producing the

injury was of no great moment because the city needed only to contact the officers

involved or the police department to obtain that information. Id. The court observed:

              Just as the notice statute should not become a trap for the
              unwary, . . . neither should it become a refuge for the
              unconscientious. The appellees had all the information before
              them necessary to make an adequate investigation to
              determine their liability and prepare a defense. They failed to
              do so and sought protection in the formalities of the notice

                                              5
              requirements.      Allowing them protection under the
              circumstances here would thwart the purpose behind the
              notice provisions of the tort claims statute.

Id.

       The City asserts that Collier is distinguishable.         According to the City,

Buschman’s explicit denial of injuries in her notice gave the City no reason to investigate

a personal injury claim or to anticipate a claim for medical expenses, lost earnings, and

pain and suffering. Buschman responds by asserting that she was not required to specify

the type of claim she might bring or specify the damages she might seek. She contends

that the purpose of the statute was fulfilled because the City knew of her intent to make a

claim and the specifics of the accident such that it could investigate, determine its

possible liability, and prepare a defense.

       Even if Buschman was not required to specify the claims she might bring or the

amount of damages she might seek in her notice, the question before us is not whether the

notice is improperly vague or open-ended regarding “the extent of the loss” or “the

amount of the damages sought.” I.C. § 34-13-3-10. To the contrary, Buschman’s notice

specifically informed the City of rear bumper and side panel damage in the amount of

$960.99 and expressly stated, “No injuries.”       App. p. 19.     Even the most liberal

construction of Buschman’s notice would not have put the City on notice of a potential

personal injury claim.

       In this regard, this case is similar to Lukowiak, which involved a notice informing

the Board of claims for damages to an automobile and for medical costs. Lukowiak, 810

N.E.2d at 383. We determined that such a notice did not encompass a loss of consortium

                                             6
claim or a claim for lost wages. Id. We reasoned that the Board was made aware that it

needed to defend itself against a claim only for damages to an automobile and for

medical costs and that to hold otherwise would effectively eliminate the safeguard that

political subdivisions be able to ascertain the full nature of the claim against it based

upon the notice. Id. at 383-84.

       Although Buschman’s notice indicated an intent to take legal action, it did not

contain sufficient information for the City to anticipate a potential personal injury claim

so that it could assess the full extent of its liability and prepare a defense. Even if, as

Buschman contends, the City could not have further investigated the extent of her injuries

or her injuries could have changed over time, the City might have approached its

investigation of the accident or its assessment of liability differently had known it faced a

potential personal injury claim in addition to the claim for damage to the vehicle.

       We also disagree with Buschman’s suggestion that the City had all the information

it needed to investigate the claim, to determine its liability, and to prepare a defense.

Unlike in Collier, there is no indication that the City had information in its own files from

which it could determine that Buschman was injured in the accident. In fact, according to

her affidavit, Buschman herself did not even realize the she was injured until sometime

after she submitted her notice. This is not a circumstance in which the City used the Act

as “a refuge for the unconscientious.” Collier, 544 N.E.2d at 500.

       Buschman also argues that she was not statutorily required to submit a second

notice or amend her notice once she became aware of her physical injuries. We are not

persuaded that by merely submitting a tort claim notice Buschman preserved all claims

                                             7
and the ability to recover all damages that arose out of the accident. Such a holding

would effectively eliminate “the extent of the loss” and “the amount of the damages

sought” provisions from the notice requirement. I.C. § 34-13-3-10. Instead, we hold

that, when a claimant’s notice contains a specific and definitive assessment of loss, his or

her recovery is limited to the loss described in the original notice. Alternatively, if, as is

the case here, additional losses are discovered after the notice has been submitted, we see

no reason why the claimant could not amend the original notice or submit another notice

in a timely manner. See Lukowiak, 810 N.E.2d at 384 (observing that, although no

provision of the Act authorizes a claimant to file an amended notice, had a timely

amended notice been filed “we perceive of no problem with allowing the amendments to

be applicable to the claim.”).

       Buschman also argues that, because the statute does not expressly require

claimants to amend a notice or submit another notice upon learning of additional losses, it

“is just another trap for unwary, unsophisticated or untrained citizens.” Appellee’s Br. p.

17. We appreciate Buschman’s concerns and steadfastly favor broad access to the courts;

however, this is an issue for the Legislature to resolve. Buschman’s notice contained a

definitive statement of her damages and an express denial of injuries. Under these

circumstances, the notice was insufficient to inform the City of any potential liability for

a personal injury claim regardless of the extensive details concerning the accident itself.

Thus, Buschman’s notice did not substantially comply with the requirements of the Act

for purposes of her personal injury claim, and summary judgment in her favor on this

issue was improper.

                                              8
                                       Conclusion

       The trial court improperly granted summary judgment in Buschman’s favor on the

issue of whether her notice was sufficient to inform the City of a potential personal injury

claim. We reverse and remand for further proceedings.

       Reversed and remanded.

FRIEDLANDER, J., and MAY, J., concur.




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