      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                            Jul 09 2015, 6:18 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEES
      Eric A. Frey                                              Michael E. Walschlager
      Frey Law Firm                                             Selective Staff Counsel of Indiana
      Terre Haute, Indiana                                      Carmel, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Charles Stierwalt,                                        July 9, 2015

      Appellant-Plaintiff,                                      Court of Appeals Case No. 28A01-
                                                                1412-CT-528
              v.                                                Appeal from the Greene Superior
                                                                Court
      Travis Barton and City of Linton,
                                                                The Honorable Dena A. Martin,
      Indiana,                                                  Judge
      Appellees-Defendants.
                                                                Cause No. 28D01-1405-CT-9




      Bailey, Judge.


                                         Statement of the Case
[1]   The Indiana Tort Claims Act (“ITCA”) provides that a claim against a political

      subdivision is barred unless a claimant files notice of his intent to bring a tort

      claim with the governing body of that political subdivision within 180 days after


      Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015            Page 1 of 12
      the claimant’s loss occurs. See Ind. Code §§ 34-13-3-8(a)(1), -10. Charles

      Stierwalt filed a complaint against Thomas Barton and the City of Linton (“the

      City”) alleging negligence, and the trial court dismissed that complaint with

      prejudice because Stierwalt had failed to provide adequate notice to the City

      under the ITCA. Stierwalt now appeals that dismissal and presents two issues

      for our review, which we revise and restate as the following issue: whether the

      trial court erred when it concluded that Stierwalt failed to substantially comply

      with the notice provisions of the ITCA.


[2]   We affirm.


                                  Facts and Procedural History
[3]   At approximately 11:00 a.m. on July 29, 2013, Stierwalt rode as a passenger in

      a vehicle driven by Skyler Miller on Indiana State Road 54 in Linton. As

      Miller slowed to turn, a vehicle driven by Travis Barton struck Miller in the

      rear, injuring Stierwalt. The City owned Barton’s vehicle, which the City

      insured through Selective Insurance Company of America (“Selective”).

      Officer K. Jacobshagen with the Linton Police Department (“LPD”) responded

      to the collision and prepared a report. Barton told Officer Jacobshagen that he

      had not seen Miller slowing to turn, and, as such, the report cited the primary

      cause of the collision as Barton having followed Miller too closely. The report

      identified Stierwalt only as “Passenger.” Appellant’s App. at 26.


[4]   Three days later, on August 1, 2013, a Selective claims management specialist,

      Nick Roberts, mailed Stierwalt a letter, which informed him that Selective had

      Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015   Page 2 of 12
      assigned Roberts to work on his claim. Further, Roberts explained that, “[i]n

      order for [Stierwalt’s] claim to be considered,” Selective needed to obtain his

      medical information, which required Stierwalt to execute certain

      authorizations. Id. at 19. Roberts assured that “[t]he signing of this form is

      NOT a release of your claim. It simply allows Selective to secure information

      about the claim.” Id. Stierwalt responded on August 12 with a letter of

      representation from his lawyer, Eric Frey. Thereafter, Frey and Roberts

      communicated regularly regarding Stierwalt’s injuries and the status of his

      treatment.


[5]   On August 21, Frey’s paralegal sent a letter to the LPD requesting a copy of the

      accident report prepared by Officer Jacobshagen (“the August 21 letter”). In

      total, the letter stated:

              To Whom It May Concern:

              I represent Charles Stierwalt for injuries he received in a car
              wreck on July 29, 2013[,] in Linton, Indiana. Please accept this
              letter as our request for the accident report regarding the wreck. I
              have enclosed a check for $5.00 for the report fee and a pre-paid
              envelope for its return.

              Thank you for your assistance in this matter.


      Id. at 23. LPD processed the August 21 letter on August 22. Stierwalt, through

      Frey or otherwise, had no further contact with the LPD. Stierwalt had no

      contact with any other City department.




      Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015   Page 3 of 12
[6]   By February 2014, Stierwalt had completed treatment for the injuries he

      sustained on July 29, and, on February 11, 2014, Frey mailed a demand letter

      to Roberts. The demand letter declared that “[l]iability in this case is clear,”

      and it noted that Stierwalt had medical bills in the amount of $4,654, a hospital

      lien in the amount of $1,378, and an auto insurance lien in the amount of $119.

      Id. at 34. Accordingly, Stierwalt demanded $75,000 to settle his claim.


[7]   Soon thereafter, Roberts responded with a request for a copy of the tort claims

      notice that Stierwalt was required to send to the City. Stierwalt referred

      Roberts to the August 21 letter, and Frey

              advised [Roberts] that the written notice to the City advising
              them of the accident and requesting the police report was
              adequate under Indiana law as interpreted by the Supreme and
              Appellate Courts because the[ir] decisions indicate that the [tort
              claim] notice does not have to be in the statutory form, can be
              sent to an office or person other than the most appropriate
              officer[,] and need not contain all [of] the facts surrounding the
              claim.


      Id. at 17. Roberts, however, determined that the August 21 letter provided

      insufficient notice under the ITCA and, thus, he denied Stierwalt’s claim.


[8]   Stierwalt then filed a complaint against Barton and the City on May 15, which

      alleged that Barton, an employee of the City, was negligent when he struck

      Miller’s vehicle in the rear and injured Stierwalt. The City moved to dismiss

      the complaint with prejudice because Stierwalt failed to comply with the notice

      provisions of the ITCA. In support of its motion, the City attached an affidavit


      Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015   Page 4 of 12
       from John Wilkes, the City’s mayor, which averred that the City never

       “received a Tort Claims Notice from Mr. Stierwalt regarding the alleged

       collision.” Id. at 13. The trial court found that Stierwalt failed to provide

       adequate notice and to substantially comply with the ITCA, and, therefore, it

       granted the City’s motion on September 24. This appeal ensued.


                                      Discussion and Decision
[9]    Stierwalt contends that the trial court erred when it concluded he failed to

       substantially comply with the ITCA notice requirements, and, in the

       alternative, that “the giving of a more detailed tort claims notice” than that

       purportedly provided in the August 21 letter “would be a useless act which the

       law does not require.” Appellant’s Br. at 10. We must disagree.


[10]   Initially, though, we note that the City filed its motion to dismiss under Indiana

       Trial Rule 12(B)(6) but attached Wilkes’ affidavit to that pleading. In kind,

       Stierwalt attached a competing affidavit to his response, and the trial court

       issued an “Order Granting Motion to Dismiss.” However, Trial Rule 12(B)

       states that, if

               matters outside the pleading are presented to and not excluded by
               the court, the motion shall be treated as one for summary
               judgment and disposed of as provided in [Trial] Rule 56. In such
               case, all parties shall be given reasonable opportunity to present
               all material made pertinent to such a motion by Rule 56.


       Because the trial court did not exclude the affidavits attached to the City’s

       motion, the court should have treated the motion as one for summary judgment

       Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015   Page 5 of 12
       under Trial Rule 56. See Ind. Trial Rule 12(B). Although the trial court did not

       do so, Stierwalt nevertheless received an opportunity to respond to the City’s

       affidavit, as required by Trial Rule 56, and he did so with a competing affidavit.

       Thus, Stierwalt was not prejudiced by the court’s treatment of the motion to

       dismiss as a motion for summary judgment. See Azhar v. Town of Fishers, 744

       N.E.2d 947, 950 (Ind. Ct. App. 2001). In any event, the parties do not dispute

       the facts in this case but only whether those facts, as a matter of law, establish

       substantial compliance with the ITCA. See Schoettmer v. Wright, 992 N.E.2d

       702, 707 (Ind. 2013). And “[w]here the facts are undisputed and the issue

       presented is a pure question of law, we review the matter de novo.” Bellows v.

       Bd. of Comm’rs, 926 N.E.2d 96, 114 (Ind. Ct. App. 2010) (internal quotation

       marks omitted).


[11]   The ITCA provides that “a claim against a political subdivision is barred unless

       notice [of the claim] is filed with . . . the governing body of that political

       subdivision . . . within [180] days after the loss occurs.” I.C. § 34-13-3-8.

               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. Where a political subdivision raises the issue of a plaintiff’s

       compliance with the ITCA’s notice provisions as an affirmative defense, “the


       Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015   Page 6 of 12
       plaintiff bears the burden of proving compliance.” Waldrip v. Waldrip, 976

       N.E.2d 102, 110 (Ind. Ct. App. 2012).


[12]   A plaintiff need not strictly comply with the ITCA notice requirements. See

       Schoettmer, 992 N.E.2d at 707. “[S]ubstantial compliance with the statutory

       notice requirements is sufficient when the purpose of the notice requirement is

       satisfied.” Id. at 707. (quotation marks omitted). “[S]o long as [the ITCA’s]

       essential purpose has been satisfied, it should not function as a trap for the

       unwary.” Id. at 706 (quotation marks omitted). “The purposes of the notice

       statute include informing the officials of the political subdivision with

       reasonable certainty of the accident and surrounding circumstances so that the

       political subdivision may investigate, determine its possible liability, and

       prepare a defense to the claim.” Id. at 707 (quotation marks omitted).


[13]   As stated, substantial compliance with the ITCA is a question of law. Id.

       Nevertheless, “[w]hat information is sufficient [for the notice to comply with

       the ITCA] will vary depending upon the facts of each case.” Boushehry v. City of

       Indianapolis, 931 N.E.2d 892, 895 (Ind. Ct. App. 2010). In determining whether

       a plaintiff has substantially complied with the ITCA’s notice provisions, we

       focus on “the nature of the notice itself . . . and the extent to which the form,

       content, and time of the notice complies with the requirements of the notice

       statute.” Snyder v. Town of Yorktown, 20 N.E.2d 545, 553 (Ind. Ct. App. 2014),

       trans. denied. “The crucial consideration,” as our supreme court recently stated,

       “is whether the notice supplied by the claimant of his intent to take legal action

       contains sufficient information for the city to ascertain the full nature of the

       Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015   Page 7 of 12
       claim against it so that it can determine its liability and prepare a defense.”

       Schoettmer, 992 N.E.2d at 707. “Stated another way, substantial compliance

       permits an action to proceed when the claimant has attempted to provide

       notice, has fallen short of the strictures of the statute, and, yet, has supplied the

       appropriate governmental entity with sufficient information to investigate the

       claim.” Snyder, 20 N.E.3d at 553. Accordingly, “we cannot find substantial

       compliance when the claimant took no steps whatsoever to comply with the

       notice statute.” Brown v. Alexander, 876 N.E.2d 376, 383 (Ind. Ct. App. 2007)

       (cited with approval by our supreme court in Schoettmer, 992 N.E.2d at 708),

       trans. denied.


[14]   Thus, even if the political subdivision actually knew of the facts underlying the

       claimant’s claim, we cannot find substantial compliance with the ITCA if the

       claimant did not make an attempt to comply with the ITCA’s notice provisions.

       “[M]ere actual knowledge of an occurrence, even when coupled with routine

       investigation, does not constitute substantial compliance.” Id. (emphasis

       supplied; internal citations and quotation marks omitted). Thus, we have held

       that a claimant failed to substantially comply with the ITCA when the claimant

       failed to provide notice, even though the political subdivision “knew of the

       accident from day one, investigated the accident, . . . clearly was at fault for the

       accident,” had its insurance company “initiate[] the first contact with [the

       claimant] on behalf of [the subdivision],” settled a portion of the claimant’s

       case, “and expressed interest in settling the [remaining] portion.” Brown, 876

       N.E.2d at 383.


       Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015   Page 8 of 12
[15]   Our supreme court has agreed with this holding. See Schoettmer, 992 N.E.2d at

       707. In doing so, the court stated:


               On balance, we agree with the Brown panel and decline to find
               substantial compliance where, as here, the claimant
               communicated only with the insurer and “took no steps
               whatsoever to comply with the notice statute.” We recognize
               that it may be desirable to encourage potential claimants to work
               with insurers to settle claims rather than proceed directly to
               litigation, and we acknowledge that our conclusion [that
               communication with an insurer, without more,] may tend to
               encourage the opposite. We are confident, however, that such
               policy considerations will be addressed in the proper forum: the
               General Assembly.


       Id. Thus, “[c]ommunication only with [an] insurer,” without any steps taken

       by the claimant “to comply with the notice statute,” cannot establish substantial

       compliance with the ITCA’s notice provisions. Id. With these principles in

       mind, we turn now to Stierwalt’s claims.


[16]   Stierwalt first asserts that the August 21 letter, in light of the City’s actual

       knowledge of the July 29 accident, substantially complied with the ITCA’s

       notice provisions. Specifically, he argues:

               [T]he City of Linton was aware of the claim within three days
               after it occurred and requested medical information, medical
               reports[,] and medical bills from [Stierwalt] on August 1, 2013.
               In addition, the City had assigned a police officer to investigate
               the matter[,] and he had concluded that the City and Travis
               Barton were responsible for the collision due to following too
               closely. Thereafter, the City of Linton was notified of the
               accident and claim in writing when[,] on August 21, 2013, just 24

       Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015   Page 9 of 12
               days after the accident occurred, the Frey Law Firm notified the
               City that Frey represented [Stierwalt] for the injuries he received
               in the accident on July 29, 2013[,] and requested a copy of the
               police report.


       Appellant’s Br. at 6.


[17]   But Stierwalt ignores that mere actual knowledge of an occurrence, even when

       coupled with routine investigation, does not constitute substantial compliance.

       Schoettmer, 992 N.E.2d at 708. Even assuming that the City had actual

       knowledge of the July 29 accident within three days of the accident, that

       knowledge was not due to any act by Stierwalt but was independently acquired.

       Moreover, the routine accident investigation that Officer Jacobshagen

       conducted at the scene of the collision is not enough to establish substantial

       compliance with the ITCA, “even when coupled with” actual knowledge of the

       collision. Id. This is especially so in consideration of the fact that the accident

       report did not provide Stierwalt’s name but identified him only as “Passenger.”

       Appellant’s App. at 26.


[18]   Stierwalt also reads too much into the August 21 letter. Again, in its entirety,

       that letter stated:


               To Whom It May Concern:

               I represent Charles Stierwalt for injuries he received in a car
               wreck on July 29, 2013[,] in Linton, Indiana. Please accept this
               letter as our request for the accident report regarding the wreck. I
               have enclosed a check for $5.00 for the report fee and a pre-paid
               envelope for its return.

       Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015   Page 10 of 12
               Thank you for your assistance in this matter.


       Appellant’s App. at 23.


[19]   From the text of the August 21 letter, “[i]t appears . . . that [Stierwalt] did not

       consider the ITCA, and particularly its requirements governing notice.” Chang

       v. Purdue Univ., 985 N.E.2d 35, 52 (Ind. Ct. App. 2013), trans. denied. “In fact,

       we can find no indication that [Stierwalt] even contemplated the ITCA’s notice

       requirement until Appellees challenged some of [his] claims for relief on that

       basis.” Id. Thus, we believe that the August 21 letter “was not intended as an

       attempt at providing tort claim notice.” Snyder, 20 N.E.3d at 553. Instead,

       “[Stierwalt’s] attorney was seeking information from the [City] rather than

       seeking to give notice to the [City], as the letter provided no statement

       indicating proposed legal action.” Id.


[20]   Tellingly, the August 21 letter failed, in its entirety, to include those items

       required by Indiana Code Section 34-13-3-10. Other than a general, cursory

       statement that an accident had occurred, the letter did not describe: (1) the facts

       on which the claim is based; (2) the circumstances which brought about the

       loss; (3) the extent of the loss; (4) the time and place the loss occurred; (5) the

       names of all persons involved; (6) the amount of the damages sought; and (7)

       Stierwalt’s residence. See I.C. § 34-13-3-10. Indeed, the letter did not even state

       that an employee of the City was a party to the accident.




       Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015   Page 11 of 12
[21]   Stierwalt appears to recognize these shortcomings but argues that requiring

       more of him would be a useless act because, aside from his medical records, the

       City and the insurance company already had all of the pertinent information

       related to his injuries. Thus, he reasons, “[a] formal strictly detailed tort claim

       would not have provided the City or Selective with any information they did

       not already have.” Reply Br. at 8. But Stierwalt is mistaken. At the least, a

       more detailed tort claim notice would have informed the City that Stierwalt was

       anticipating litigation over his injuries. And, as our courts have repeatedly

       held, anything less than this is insufficient to establish substantial compliance

       with the ITCA. “[T]his is not a case where a claimant sought to comply with

       the ITCA’s notice requirement provisions, but fell short. The present case

       involves more than a mere technical shortcoming.” Chang, 985 N.E.2d at 54.

       In contrast, it appears that Stierwalt entirely disregarded the ITCA’s notice

       provisions until challenged by the City. Therefore, Stierwalt failed to meet his

       burden to prove his compliance with the ITCA’s notice provisions, and we

       affirm the trial court’s judgment in all respects.


[22]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 28A01-1412-CT-528 | July 9, 2015   Page 12 of 12
