                                                                            FILED
                                                                       Oct 23 2019, 8:46 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Kenneth A. Ewing                                           Robert L. Barlow, II
Carmel, Indiana                                            Madison, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Madison Consolidated Schools,                              October 23, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CT-797
        v.                                                 Appeal from the Floyd Circuit
                                                           Court
Trisha Thurston,                                           The Honorable John Terrence
Appellee-Plaintiff.                                        Cody, Judge
                                                           Trial Court Cause No.
                                                           22C01-1804-CT-527



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CT-797 | October 23, 2019                             Page 1 of 10
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Madison Consolidated Schools (Madison), appeals the

      trial court’s denial of its motion for summary judgment in favor of Appellee-

      Plaintiff, Trisha D. Thurston (Thurston), concluding that Madison is estopped

      from asserting that Thurston failed to comply with the notice requirements of

      the Indiana Tort Claims Act (ITCA).


[2]   We affirm.


                                                      ISSUE
[3]   Madison presents two issues for our review, which we consolidate and restate

      as the following single issue: Whether genuine issues of material fact exist with

      respect to Thurston’s estoppel argument which preclude the grant of summary

      judgment to Madison.


                       FACTS AND PROCEDURAL HISTORY
[4]   On September 5, 2014, sixteen-year-old Thurston was a passenger in a school

      bus operated by Madison when the school bus struck a guardrail and collided

      with another vehicle on Interstate 64 in Floyd County, Indiana. As a result of

      the collision, Thurston suffered severe physical injuries and incurred physical

      and mental pain.


[5]   Subsequent to the accident, Jacqueline Thurston (Jacqueline), Thurston’s

      mother, was contacted by Madison’s insurer, Liberty Mutual Insurance

      Company (Liberty Mutual). In the months following this initial contact,

      Court of Appeals of Indiana | Opinion 19A-CT-797 | October 23, 2019     Page 2 of 10
      Jacqueline had multiple communications with representatives of Liberty

      Mutual. Liberty Mutual’s representatives recommended “waiting until

      [Thurston’s] treatment had been completed before discussing a settlement of her

      claim.” (Appellant’s App. Vol. II, p. 28). They instructed Jacqueline

      “repeatedly that her claim needed to be resolved by April 17, 2018 [but] at no

      time did any of [Liberty Mutual’s] representatives advise [her] that a Tort Claim

      Notice needed to be filed [] by October 14, 2016.” (Appellant’s App. Vol. II, p.

      28). Instead, Jacqueline was told that Thurston’s claim had “to be settled or put

      into litigation by 4-17-2018 or she will be barred from recovery. Since she was a

      minor at the time of the bus accident, she ha[d] 2 years plus her 18th birthday to

      resolve her claim.” (Appellant’s App. Vol. II, p. 28). By email dated April 11,

      2018, a representative of Liberty Mutual advised Jacqueline


              We are not going to have all the medical in by the statute. We’ve
              received quite a bit but not everything. [Thurston] is getting
              ready to have her 20th birthday. You are going to need to retain
              counsel to [protect] the statute of limitations. Obviously this
              doesn’t mean we are not willing to get in the remaining medical
              and still attempt to resolve this short of further litigation but you
              have to protect the statute. Please reach out to counsel to discuss
              and provide them my information.


      (Appellant’s App. Vol. II, pp. 28-29).


[6]   On April 16, 2018, Thurston filed her Complaint against Madison, seeking

      damages for the injuries suffered as a result of the motor vehicle accident. On

      July 31, 2018, Madison filed its motion for summary judgment, contending that

      Thurston had not provided pre-suit notice of her claim pursuant to ITCA and

      Court of Appeals of Indiana | Opinion 19A-CT-797 | October 23, 2019         Page 3 of 10
       therefore she was barred from pursuing her suit. On August 28, 2018, Thurston

       filed her response to Madison’s motion, alleging that Liberty Mutual, as

       Madison’s insurer, had led her to believe that formal notice would not be

       necessary and therefore Madison should be estopped from asserting non-

       compliance as a defense.


[7]    On January 14, 2019, after hearing oral argument from counsel, the trial court

       denied Madison’s motion for summary judgment, concluding that “genuine

       issues of material fact exist with respect to the estoppel issue that precludes the

       granting of summary judgment in favor of [Madison].” (Appellant’s App. Vol.

       II, p. 11). On February 8, 2019, Madison filed a motion to certify the trial

       court’s Order for interlocutory appeal, which was granted by the trial court and

       accepted by this court on March 26, 2019.


[8]    Madison now appeals. Additional facts will be provided if necessary.


                                DISCUSSION AND DECISION
[9]    Madison contends that the trial court erred by concluding that a genuine issue

       of material fact existed as to whether Madison should be estopped from

       asserting Thurston’s non-compliance with the notice requirements of the ITCA

       as a defense.


[10]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we
       Court of Appeals of Indiana | Opinion 19A-CT-797 | October 23, 2019        Page 4 of 10
       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

       it helps to prove or disprove an essential element of the plaintiff’s cause of

       action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

       opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

       Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant

       of summary judgment has the burden of persuading this court that the trial

       court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.


[11]   We observe that, in the present case, the trial court did not enter findings of fact

       and conclusions of law thereon in support of its judgment. Generally, special

       findings are not required in summary judgment proceedings and are not binding

       on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48

       (Ind. Ct. App. 2004). However, such findings offer a court valuable insight into

       the trial court’s rationale and facilitate appellate review. Id.


[12]   The 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 the political subdivision within 180 days after the claimant’s loss occurs. See

       I.C. §§ 34-13-3-8(a)(1), -10. However, strict compliance with the ITCA notice

       requirements is not mandatory. Schoettmer v. Wright, 992 N.E.2d 702, 707 (Ind.

       2013). Indeed, “substantial compliance with the statutory notice requirements

       is sufficient when the purpose of the notice requirement is satisfied.” Id. “[S]o

       Court of Appeals of Indiana | Opinion 19A-CT-797 | October 23, 2019           Page 5 of 10
       long as [the ITCA’s] essential purpose has been satisfied, it should not function

       as a trap for the unwary.” Id. at 706. “The purpose of the notice statute

       includes 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.


[13]   The parties agree that no notice of intent was filed, nor does Thurston raise an

       allegation of substantial compliance. Instead, Thurston relies on the estoppel

       doctrine to bar Madison’s defense. In the ITCA-notice context, the doctrine of

       estoppel “focuses on representations made by the defendant or its agents to the

       plaintiff, which induce the plaintiff to reasonably believe that formal notice is

       unnecessary.” Allen v. Lake Cnty. Jail, 496 N.E.2d 412, 415 n.3 (Ind. Ct. App.

       1986), reh’g denied. Our supreme court recently explained that a plaintiff

       claiming estoppel in response to an ITCA-notice defense “must show its (1) lack

       of knowledge and of the means of knowledge as to the facts in question, (2)

       reliance upon the conduct of the party estopped, and (3) action based thereon of

       such a character as to change [its] position prejudicially.” Schoettmer, 992

       N.E.2d at 709. The doctrine of estoppel derives from one core “underlying

       principle:” the equitable intuition that “one who by deed or conduct has

       induced another to act in a particular manner will not be 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) (citing Brown v. Branch, 758


       Court of Appeals of Indiana | Opinion 19A-CT-797 | October 23, 2019         Page 6 of 10
       N.E.2d 48, 51 (Ind. 2001)). Because the Indiana courts have long recognized a

       general rule against applying equitable estoppel to government entities, 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, LLP v. Brown Cnty. Area Plan Comm’n, 819 N.E.2d 55, 67 (Ind. 2004).

       The party asserting estoppel bears the burden of providing such clear evidence.

       Schoettmer, 992 N.E.2d at 709.


[14]   In Schoettmer, Schoettmer was injured in an auto accident by Wright, who was

       an employee of the South Central Community Action Program (South Central),

       a governmental entity subject to ITCA. Id. at 704-05. Schoettmer was aware

       from the earliest stages of the litigation that Wright worked for South Central,

       but was initially unaware that South Central was an entity subject to the ITCA.

       Id. at 705. Some ten months after the accident, and after preliminary settlement

       discussions had broken down, Schoettmer retained counsel for the first time and

       subsequently sued Wright and South Central. Id. Upon review, our supreme

       court found the three prerequisites of equitable estoppel satisfied: (1) neither

       the insurance agency nor the agency gave Schoettmer “any reason to believe”

       that South Central was covered by the ITCA; (2) South Central’s agent made

       affirmative representations to Schoettmer that “it would be in his best interest to

       wait until he is released from treatment—i.e., more than 180 days—before he

       should try to settle the claim;” and (3) Schoettmer acted in reliance on those

       representations, in that he waited until five months after the accident to sign a

       release of his medical records, and South Central did not respond with a

       Court of Appeals of Indiana | Opinion 19A-CT-797 | October 23, 2019       Page 7 of 10
       settlement offer until the ITCA notice period had already run. Id. at 709. For

       these reasons, the Schoettmer court found that Schoettmer “should be allowed to

       present proof of estoppel to the trial court.” Id. at 709-10.


[15]   Likewise here, we find that there is a genuine issue of material fact as to

       whether Madison should be estopped from asserting Thurston’s non-

       compliance as a defense to the ITCA-required notice of tort claim. Thurston

       designated evidence that subsequent to the accident, Liberty Mutual, as

       insurance agent to Madison, recommended Thurston’s mother to wait until

       medical treatment was completed prior to seeking a settlement. Representatives

       of Liberty Mutual advised that the claim needed to be resolved by April 17,

       2018, but at no time did they inform Thurston of the ITCA requirements.

       There is designated evidence that Thurston and her mother acted in reliance on

       this advice. In the months following the initial communications, instead of

       filing a tort notice or law suit, Thurston and Liberty Mutual assembled the

       medical documentation regarding the claim. It was not until April 11, 2018,

       that Liberty Mutual advised Thurston to retain counsel to “[protect] the statute

       of limitations.” (Appellant’s App. Vol. II, p. 29). Relying on this information,

       Thurston retained counsel. Due to the continued communications between the

       parties and Liberty Mutual’s expressed willingness to reach a settlement, it was

       reasonable for Thurston and her mother to rely on those representations that

       nothing else was necessary to preserve the claim except to reach a resolution by

       April 17, 2018. As this designated evidence could reasonably support a finding




       Court of Appeals of Indiana | Opinion 19A-CT-797 | October 23, 2019       Page 8 of 10
       of estoppel, or at least reveal genuine issues of material fact, summary judgment

       is inappropriate.


[16]   Madison’s challenge to Thurston’s estoppel claim is without merit. Madison is

       correct that the four emails Thurston designated as evidence are dated after the

       deadline for the tort notice passed and, “had the adjusters [] informed

       [Thurston] of the deadline [] in those communications, it would have been

       impossible for [Thurston] to have complied with the deadline[.]” (Appellant’s

       Br. p. 11). Therefore, Madison maintains that “[t]he information not provided

       to [Thurston] did not cause her miss the deadline.” (Appellant’s Br. p. 11).

       However, Jacqueline’s designated affidavit clearly affirms—and is not

       contradicted by Madison—that she had “multiple contacts with representatives

       from Liberty Mutual” in the months subsequent to the accident and well in

       advance of the expiration of ITCA’s tort claim deadline advising her to wait

       until medical treatment was complete prior to commencing settlement

       negotiations. (Appellant’s App. Vol. II, pp. 27-28). See Hughley v. State 15

       N.E.3d 1000, 1003 (Ind. 2014) (self-serving affidavit may preclude summary

       judgment when it establishes that material facts are in dispute.) The evidence

       clearly reflects that Thurston and her mother attempted to work with Liberty

       Mutual and relied on their instructions and assurances, rather than filing a

       notice of tort claim.


                                              CONCLUSION
[17]   Based on the foregoing, we conclude that the trial court properly denied

       Madison’s motion for summary judgment as there are genuine issues of
       Court of Appeals of Indiana | Opinion 19A-CT-797 | October 23, 2019       Page 9 of 10
       material fact as to whether Madison should be estopped from asserting

       Thurston’s non-compliance with the notice requirements of the ITCA.


[18]   Affirmed.


[19]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Opinion 19A-CT-797 | October 23, 2019   Page 10 of 10
