Transcript PowerPoint - Indianapolis Bar Association

Yasmin L. Stump
YASMIN L. STUMP LAW GROUP, PC
THREE MERIDIAN PLAZA, SUITE 100
10333 NORTH MERIDIAN STREET
INDIANAPOLIS, IN 46290
317.705.0707
[email protected]
Alexander Jesus Limontes
MITCHELL HURST DICK & McNELIS, LLC
152 EAST WASHINGTON STREET
INDIANAPOLIS, IN 46204
317.636.0808
[email protected]

Rules 4 and 4.1:


Rules 4.2 - 4.10:


service upon particular types of persons and in particular
types of action
Rules 4.11 - 4.13:


mechanics of preparing summons and modes of service
to gain personal jurisdiction
Effectuating service for each mode of service
Rules 4.14 - 4.17:

general provisions governing proof, validity, and scope of
service of process
Personal Jurisdiction, Service of
Summons and Complaint

Ind. T.R. 4(A) provides manner for Court to obtain personal jurisdiction over
parties/persons

Court acquires jurisdiction over a party or person who:
 Commences/joins in action;
 Served with summons or appears; or
 Subject to court’s jurisdiction under any other law

Person/legal entity falls within court's jurisdiction in a civil action only when
properly made party to that action
 Bowmar Instrument Corp. v. Maag, 442 N.E.2d 729 (Ind. Ct. App. 1982)
(quoting Ind. T.R.4(A); Kilb v. Ennis, 74 Ind. 17 (1881))
 Accomplished through service of process typicall

Service of process is inadequate, court lacks personal jurisdiction
 Bonaventura v. Leach, 670 N.E.2d 123 (Ind. Ct. App. 1996), trans. den., 683
N.E.2d 584, overruled on other grounds by Smith v. Johnston, 711 N.E.2d
1259 (Ind. 1999)

Ind. T.R. 4(C) requires that summons contain:
 Name and address of person being served;
 Name, address and telephone no. of court;
 Cause no. assigned to case;
 Title of case as in complaint;
 May shorten title to first named plaintiff and defendant with indication
that additional parties exist if multiple parties
 Name, address and telephone no. of attorney for party seeking service;
 Time by which person being served has to respond; and
 Clear statement that if no response, default judgment may be entered

Additional information to be contained if it facilitates proper service
 Ind. T.R. 4(C)

Summons may also designate manner of service
 Ind. T.R. 4(D)

When filing complaint or similar pleading must provide clerk with as many
copies of complaint and summons as necessary

Clerk must:
 Examine, date, sign and affix seal to summons; and
 Issue and deliver papers to the appropriate person for service

Praecipe necessary only when further information required to effectuate
service
 Praecipe must be attached to or entered upon summons
 Must include affidavits, requests and any other information related to
summons and service
 Praecipe then deemed to be part of summons
 Separate or additional summons may be issued by clerk upon
proper request

Potential manners of service:
 Registered or certified mail;
 Service on individual at listed address (residence/employment)
 Service by sheriff;
 Service by service processor;
 Service on agent;
 Service by publication; and
 Service by a party’s appearance

Choice of manner of service may depend upon:
 Type of action
 Party’s relationship to Indiana
 Difficulty in effectuating service

Must provide best possible notice available


Morrison v. Prof. Billing Serv., Inc. 559 N.E.2d 366 (Ind. Ct.
App. 1990)
Ind. T.R. 4 and Ind. TR. 41(E) impose duty of due
diligence upon complaining party when securing
service of process

Failure to do so result in motion to dismiss for failure to
prosecute Taylor v. Lewis, 577 N.E.2d 986, 989 (Ind. Ct.
App. 1991)

Party seeking service may designate manner of service
upon summons
 Ind. T.R. 4(D)

If not so designated - Then clerk shall cause service to be made by mail or other
public means, provided the mailing addresses are indicated
in summons or can be determined

If mailing address not furnished or cannot be determined,
or if service by mail or other public means is returned
without acceptance –
 Then complaint and summons shall promptly be delivered to
sheriff who shall serve summons, unless otherwise directed

General rule:


Must serve summons and complaint together unless
otherwise ordered by court
Failure to serve complaint with summons prevents
court from obtaining personal jurisdiction over party

Overhauser v. Fowler, 549 N.E.2d 71, 73 (Ind. Ct. App.
1990):
 Court lacked personal jurisdiction when
defendant received summons without complaint
attached

Failure to timely issue summons within applicable
statute of limitations renders action untimely
 See Ray–Hayes v. Heinamann, 760 N.E.2d 172 (Ind.
2002, modified on reh'g, 768 N.E.2d 899
 Held: Civil action untimely commenced when
plaintiff did not tender summons to clerk after
statute of limitations expired, even though
complaint filed and filing fee paid within applicable
statutory period

No requirement that summons be delivered to
defendant within statutory period
 Johnson v. Morgan 871 N.E.2d 1050, 1054 (Ind. Ct.
App. 2007)

When serving by publication:



complaint should not be published
instead summons and complaint are deemed to be
served at end of the day of last required publication
When serving by party’s appearance:

summons and complaint are deemed to be served at
time of appearance in jurisdiction acquired by
appearance


Ind. T.R. 4.1(A) -- service on individual/representative may occur by:
 Sending copy of summons and complaint by registered/certified mail;
 …or other public means by which written acknowledgement of receipt
may be requested/obtained to residence, place of business or
employment with return receipt requested and returned showing
receipt of letter;
 Delivering copy of summons and complaint personally;
 Leaving copy of summons and complaint at dwelling house or usual
place of abode; or
 Serving agent as provided by rule, statute or valid agreement
Follow “copy service” with mailed copy
 If serving by last 2 options, must send copy of summons (without
complaint) by First Class U.S. Mail to last known address, and this fact
must be shown upon the return
 Ind. T.R. 4.1(B)

Registered/certified mail
 Often, the fastest, most effective and inexpensive method.
 Used extensively in Indiana for serving nonresidents through
governmental agents (i.e., nonresident motorists)

Personal service
 Classic “hand to hand” service
 May be executed by Sheriff or process server

Dwelling house or usual place of abode
 Must leave with person of suitable age and discretion residing therein
 Harvey, 1 Ind. Prac., Rules of Procedure Annotated R. 4.1 (3d. ed.)
 Stated in disjunctive
 One’s dwelling house may not be one’s usual place of abode

Agent
 Includes “person of suitable age and discretion whose usual
duties/activities include prompt communication of such information”
 Id.
Service of Particular Individuals and
during Particular Causes of Action


Infant or incompetent person – Ind. T.R. 4.2
 If already represented, service must be made upon next of friend/guardian
ad litem
 If not yet represented, service must be made on court-appointed rep.
 If infant has no court-appointed representative, must serve custodial
parent
 If no parent, person known to be in position of custodian/parent.
 If incompetent person has no court-appointed representative, must serve
named party and person known to be custodian
Institutionalized person – Ind. T.R. 4.3
 Service must be made by delivering or mailing copy of summons and
complaint to official in charge of institution
 Imposes duty upon official to:
 immediately deliver copies to person;
 permit him/her to make provisions for representation by counsel; and
 indicate such upon the return

Applies to nonresidents, former residents or persons/organizations
of unknown residence
 Submit to jurisdiction of Indiana courts. in any action arising from
following acts done by them/their agents:
 Doing business in Indiana
 Causing personal injury/property damage by act/omission
done within Indiana;
 Causing personal injury/property damage by act/omission
done outside Indiana.
 Only if:
 Regularly does/solicits business;
 Engages in other persistent conduct; OR
 Derives subst. revenue/benefit from goods, materials, or
services used/consumed/rendered in IN
 Supplying/contracting to supply goods/services in Indiana;
 Owning, using, or possessing real property or interest therein in
Indiana;
 Insuring or acting as surety for any person, property or risk within
Indiana;
 Living in martial relationship in Indiana regardless of subsequent
departure;
 Only if:
 Other party to relationship remains in state; and
 Related to alimony, custody, child support, or property settlement
 Abusing, harassing or disturbing peace of, or violating
protective/restraining order for protection of, any person
within IN by act/omission done:
 in Indiana; or
 outside Indiana if part of continuing course of conduct
having effect in Indiana

If subject to jurisdiction under Ind. T.R. 4.4 may
serve with summons according to:




Ind. T.R. 4.1 (discussed earlier)
Ind. T.R. 4.5 (see Ind. T.R. 4.9)
Ind. T.R. 4.6 (discussed later)
Ind. T.R. 4.9 (in rem actions)
 May serve summons:
 upon person/agent pursuant to Trial Rules;
 if outside Indiana, as provided by Ind. T.R. 4.1;
 by publication under Ind. T.R. 4.13

Types of organizations and who to serve:
 Domestic/foreign organization
 Agent appointed (by agreement or law) to receive service;
or
 If no agent, executive officer

Partnership
 General partner

State governmental organization
 Executive officer and Attorney General

Local governmental organization
 Executive and organization’s attorney


Manner of service – Ind. T.R. 4.6(B)
 Must serve in manner provided by Ind. T.R. 4.1
 Must not knowingly direct service at person’s dwelling
house/place of abode
 Unless address furnished under statutory requirements or valid
agreement; or
 Affidavit on/attached to summons states that service in another
manner is impractical
Service at organization’s office – Ind. T.R. 4.6(C)
 If service upon organization cannot be made as provided in Ind.
T.R. 4.6(A) or (B):
 May serve by leaving copy of summons and complaint at any
office of organization located within Indiana with person in
charge of such office
 Must show such inability upon affidavit or in the return
Effectuating Particular Manners of
Service

Clerk (or governmental agent under Ind. T.R. 4.10) must send summons
and complaint to address supplied upon summons or furnished by person
seeking service

Return
 Clerk or governmental agent must show:
 Date and place of mailing;
 A copy of mailed or electronically-transmitted return receipt; and
 If and when received by person to show that mailing was
accepted/returned
 If accepted, by whom
 Clerk must file return and receipt with the pleadings, so that it becomes
part of the record

If mailing by clerk returned without acceptance, clerk must re-issue
summons and complaint for service as requested by person seeking
service

Who serves:




Sheriff;
Deputy; or
Person specially/regularly appointed by court
Manner of service available if:


Delivering copy personally; or
Leaving copy at dwelling house/place of employment (Ind. T.R. 4.1)

Service effective if made by person not otherwise authorized by
rule, but proof of service by that person must be made as witness
or by deposition without allowance of expenses as costs

Duty on server:

Must act promptly and exercise reasonable care to cause service to be
made

Person seeking service must:
 Submit such request upon praecipe for summons along
with affidavits stating that:
 Diligent search has been made; and
 Defendant cannot be found, has concealed his whereabouts,
or has left the state

Must prepare contents of summons to be published

Praecipe for summons by publication
 Names all persons to be served
 Separate publications for each party not required

Clerk/sheriff must sign summons in such manner as to
indicate that it is made by his/her authority
General provisions governing proof,
validity and scope of service of
process

Duty to make return
 Person making service shall promptly make return upon or attach to
copy of summons to be delivered to clerk

Form of return
 Signed by person making it and include statement that:
 If service was made –
 That service was made upon person; and
 Time, place, and manner of service;
 If service was not made –
 Manner in which it was thwarted (in terms of fact/law)
 Other information as expressly required by Trial Rules

Return and affidavits as evidence
 Clerk must file return (along with summons), praecipe, affidavits
furnished with summons/praecipe and all other permitted affidavits with
pleadings, etc.
 At that time, it is a part of the record and has evidentiary effect

Proof of filing and issuance dates
 Clerk must enter filing date upon every praecipe, pleading,
return, summons, affidavit or other paper filed with or entered of
record
 Clerk must also enter issuance date upon any summons issued,
mailed or delivered by him, or other communication
served/transmitted by him
 Filing/issuance date constitutes evidence of date of filing
/issuance without authentication when entered in court
records, or paper/copy thereof properly admitted into evidence

Admission of service
 Written admission stating date and place of service, signed by
person being served, may be filed with clerk in order to file with
pleadings
 Part of record, constitutes evidence of proper service and is

Amendment of process/proof of service
 Court may allow at any time in its discretion, unless clearly
and materially prejudices substantive rights of person
against whom process issued

Defects in summons
 No summons/service thereof will be set aside/adjudged
insufficient when reasonably calculated to inform person to
be served that:
 Action was instituted against him/her;
 Name of the court; and
 Time to respond

Every person served under Trial Rules must:
 Cooperate;
 Accept service;
 Comply with Trial Rules; and
 Acknowledge receipt of papers in signed writing
 Only if served personally

If accepting service for another, must:
 Promptly deliver papers to person;
 Promptly notify person that he holds papers; OR
 Within reasonable time, notify clerk/person making service that notice
could not be made

Willful violation of Ind. T.R. 4.16 may subject person to contempt
proceedings
 But person making service cannot subject person being served to
penalty/sanction because of service

Procedural prerequisite to initiating tort lawsuit against
governmental entity or political subdivision
 Indiana Tort Claims Act (“ITCA”), IC 34-13-3, et seq.

Lawsuit barred unless tort claim notice filed within
period
 Parke County v. Ropak, Inc., 526 N.E.2d 732, 737
(Ind. Ct. App. 1988), reh’g den.

IC 34-13-3-6, -8, -9, -10 and -12 govern filing and
content of tort claim notices


“Governmental entity”:
 State of Indiana
 State departments, agencies and commissions
 Bureau of Motor Vehicle.
“Political subdivisions”:
 Community action agency;
 IC 12-14-23-2
 Individual/corporation providing public transportation per contract
w/commuter transportation district created
 IC 8-5-15
 Volunteer fire dept.
 Defined in IC 36-8-12-2 acting pursuant to IC 36-8-17 or contract w/
“unit or fire protection district”
 IC 34-13-3-22


Ind. S.Ct. considered issue of whether county equal
opportunity council and community services
organization “political subdivisions”
Held: Lake County Equal Opportunity Council
(“LCEOC”) was political subdivision, but Greater
Hammond Community Service (“GHCS”) was not


LCEOC political subdivision -- “community action agency”
under ITCA
Ct. also analyzed entity’s level of public control



GHSC argued governmental entity:
 Primarily publicly-funded;
 Subject to provisions of Indiana Public Records Act; and
 Part of its board consisted of public officials
Ct. rejected GHSC’s argument
 If organization is governmental entity under statute other than ITCA -not necessarily one under ITCA
Held: GHSC’s alleged level of public control not significant enough to be
“public” and afforded ITCA protections
 If group is neither specifically named by statute as governmental
entity/political subdivision nor providing uniquely governmental services,
cannot receive ITCA protection by contracting to be managed by
established governmental entity
 Greater Hammond Comm. Serv. v. Mutka, 735 N.E.2d 780, 784 (Ind.
2000)

ITCA immunity to governmental entity for tortuous conduct of
employees within employees’ scope of employment
 Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 452
(Ind. 2000)

Ensures public employees exercise independent judgment
necessary to carry out duties without threats of harassment or
litigation
 Indiana Dept. of Correction v. Stagg, 556 N.E.2d 1338,
1343 (Ind. Ct. App. 1990), trans. Den.


Governmental entity defends all affiliated parties – does not matter
whether against political subdivision, its employee or both
 Bienz, 674 N.E.2d at 1004 (citing Poole v. Chase, 476 N.E.2d 828
(Ind. 1985))
ITCA provisions do not apply when governmental employee:
 Committed criminal act;
 Acted outside scope of employment;
 Acted maliciously, willfully and/or wantonly; or
 Actions were calculated to personally benefit him
 IC 34-13-3-5(c)
 Tort claim notice would not be necessary in such lawsuits

Significant distinction between claim made against
governmental employee in individual vs. official
capacity

Governmental employment alone insufficient to trigger
ITCA’s notice provision
 Bienz, 674 N.E. 2d at 1004.

If plaintiff sues employee in individual capacity, notice
required if act/omission causing plaintiff’s loss falls within
scope of employment

No tort claim notice required:
 Plaintiff actually and reasonably lacks knowledge of
governmental employee’s status;
 Employee acts in the course of his duties in a manner that
disguises governmental employee; or
 Employee fails to reveal governmental employee status
 Gregor v. Szarmach, 706 N.E.2d 240, 243 (Ind. Ct. App.
1999); see also, Fowler v. Brewer, 773 N.E.2d 858, 866 (Ind.
Ct. App. 2002)

Government may be estopped from asserting defense in
such situations
 Gregor, 706 N.E.2d at 243

Specific information needed in notice
 Format of information need not be complex
 Short, plain statements acceptable

IC 34-13-3-10 also requires :
 Circumstances which brought about the loss;
 Extent of the loss;
 Time and place that loss occurred;
 Names of all persons involved, if known;
 Amount of the damages sought; and
 Residence of claimant at the time of the loss and time of filing

Notice suffices if advises “of the accident so that it may promptly
investigate the surrounding circumstances.”
 Galbreath v. City of Indianapolis, 255 N.E.2d 225, 229 (Ind.
1970)

ITCA also requires tort claim notice to be:


Written; and
Personally delivered/sent by certified/registered mail
 IC 34-13-3-12

If notice not written, may suffice under doctrine of
“substantial compliance”

Bd. of Aviation Comm’rs v. Hestor, 473 N.E.2d 151, 154
(Ind. Ct. App. 1985)

Must serve notices against political subdivision on
governing body and Ind. Political Risk Mgmt. Commission
(IPRMC)
 IC 34-13-3-8(a)
 IPRMC is separate body corporate and politic
 Instrumentality of state, but not state agency
 Separate from state in its corporate and sovereign
capacity
 Aids political subdivisions in protecting themselves
against liabilities
 IC 27-1-29-5

If not member of IPRMC, then failure to serve notice
excused
 IC 34-13-3-8(b)

Must file tort claim notice against governmental entity other than state, its
departments and agencies within 180 days after loss occurs


Must file tort claim notice against state of Indiana, its departments or agencies
within 270 days after loss occurs


IC 34-13-3-8
IC 34-13-3-6
Filing period is tolled if claimant incapacitated or becomes disabled
 IC 34-13-3-9


Period for filing begins to run once incapacity or disability is
removed
 IC 34-13-3-9.
Incompetency under ITCA refers to incapacity that makes it
unreasonable to subject person to duty to file tort claim notice
 Indiana Dept. of Hwys. v. Hughes, 575 N.E.2d 676, 678 (Ind. Ct.
App. 1991) (citing Lett v. State, 519 N.E.2d 749 (Ind. Ct. App.
1988))

Lett v. State, 519 N.E.2d 749 (Ind. Ct. App. 1988)
 Claimant was paraplegic
 Incompetent for 11 months
 Held: When claimant’s condition stabilized and he could operate
wheelchair on own, he became competent
 Period for filing tort claim notice began to run at that time

Ind. Dept. of Hwys. v. Hughes, 575 N.E.2d 676 (Ind. Ct. App. 1991)
 Held: Claimant was never incapacitated
 Claimant suffered badly broken leg
 Spent 2 months in hospital
 During hospital stay, she performed numerous tasks, including:
 Paying bills, communicating by telephone and mail, seeing
visitors, clearly discussing accident and injuries, signing
consent to treat forms and contemplating pursuing legal action
 Ct. determined that, while physically impaired, claimant’s ability
to perform tasks proved that compliance with ITCA not
unreasonable

Courts require strict compliance with ITCA notice requirement, timeliness of
notice and submission of notice to proper officers
 Daugherty v. Dearborn, 827 N.E.2d 34, 36 (Ind. Ct. App. 2005) (citing Volk v.
Michigan City, 32 N.E.2d 724, 725 (Ind. 1941))

But courts liberally construe ITCA when considering whether notice is sufficiently
definite as to time, place, nature, etc. of injury
 Id. at 35 (citing Volk, 32 N.E.2d at 725)

Not all technical violations of this statute are fatal to claim
 City of Tipton v. Baxter, 593 N.E.2d 1280, 1282 (Ind. 1992) (citing Allen v.
Lake County Jail, 496 N.E.2d 412, 414 (Ind. Ct. App. 1986), reh’g. den.)

Non-compliance with ITCA excused in three separate and distinct doctrines:
 Substantial compliance;
 Waiver; and
 Estoppel

Substantial compliance
 Focus on nature of notice itself
 Concerned with extent to which form, content, and timing of notice complies
with ITCA
 Allen, 496 N.E.2d at 415
 Often raised as defense to failure to comply with ITCA’s technical requirements

Waiver
 Focus on defendant’s failure to timely raise non-compliance with ITCA as
defense
 Baxter, 593 N.E.2d at 1282

Estoppel
 Emphasis on representations made by defendant or its agents to plaintiff, which
induce plaintiff to reasonably believe that formal notice is unnecessary
 Id.
 It is significant to note that doctrines of estoppel or waiver are typically
unavailable to plaintiff who is represented by counsel

Galbreath v. City of Indianapolis, 255 N.E.2d 225 (Ind. 1970)
 Ind. S.Ct. explained rationale underlying substantial compliance:
 “The purpose of the notice statute being to advise the city of the
accident so that it may promptly investigate the surrounding
circumstances, we see no need to endorse a policy which renders
the statute a trap for the unwary where such purpose has in fact been
satisfied.”
 Id. at 229
 ITCA requirements liberally construed when deciding whether notice
requirement satisfied
 avoid denying plaintiffs day in court
 Held: Notice, which plaintiff’s husband made without an attorney’s
assistance, to the City Legal Department sufficient
 City attorney had authority to accept notice on behalf of mayor, whom
(according to the notice statute) proper party to serve with notice in
suit against City

Collier v. Prater, 544 N.E.2d 497, 499 (Ind. 1989)
 Substantial compliance is question of law, not fact
 But determination is fact-sensitive
 Held: Significant factor in deciding substantial compliance with ITCA
whether claimant conveyed intent to file tort lawsuit against gov’tal entity
 Ct. rejected substantial compliance argument because purported “notice”
ordinary complaint letter that did not state intent to file claim
 Notice substantially complies with ITCA, if:
 It is filed within applicable period to file;
 It informs municipality of claimant’s intent to make a claim; and
 It contains sufficient information that reasonably affords municipality
opportunity to promptly investigate claim

Entirely new claims may not be raised in complaint if not mentioned in notice
 Simpson v. OP Property Mgmt., LLC, 939 N.E.2d 1098, 1103 (Ind. Ct. App.
2010); see also Boushehry v. City of Indianapolis, 931 N.E.2d 892, 896
(Ind. Ct. App. 2010) (claims in cause of action entirely different than those
contained in notice -- prevented notice from substantial compliance)

Substantial compliance applies where claimant satisfied ITCA’s notice
provisions in complete absence of writing

Claimants failed to provide written notice to proper authorities
 Held: Government’s insurer actually knew of and investigated accident, and
had attempted to settle claim
 In deposition, government’s insurer testified that he knew:
 Date of accident;
 Identities of persons involved;
 Injuries had occurred and extent of those injuries;
 Location of the accident; and
 Contact information of claimants

Held: Level of knowledge and reasonable inferences showed substantial
compliance with ITCA’s notice provisions

Delaware County v. Powell, 393 N.E.2d 190 (Ind. 1979)
 Found that substantial compliance relieved claimant from written notice
 Mere actual knowledge of occurrence or routine investigation does not
substantially comply, but notice requirement may be waived or
substantial compliance may be proven
 Held: Lower court erred by failing to permit plaintiff to submit proof of
substantial compliance

Several factors if proven may satisfy ITCA notice provisions and constitute
substantial compliance:
 Preparation of a defense;
 Admissions of liability;
 Letters describing the accident;
 Causes of the accident;
 Injuries involved; and
 Payments, settlements or other conduct /acts of defendant or its agents

Ind. S.Ct. refrained from extending holding in
Powell in deciding that claimant had not
substantially complied with ITCA notice
provisions


Claimant sent ordinary complaint letter to the mayor - omitted description of accident or any injuries
arising therefrom
Held: Notice to department acting without
knowledge and advice of city legal department
does not substantially comply with ITCA

Governmental entity can waive defense that plaintiff
failed to comply with ITCA notice provisions
 Focus on “[D]efendant’s failure to timely raise
non-compliance with ITCA as the defense”
 Allen, 496 N.E.2d at 415

Primarily governed by Ind. T.R. 12(b) and 8(b).
 Waiver must be stated in short, plain terms in
responsive pleading to complaint

Statement in responsive pleading that defendant lacked
information to form belief about allegation that written
notice had been served is insufficient assertion of waiver
 Geyer v. City of Logansport, 370 N.E.2d 333, 337 (Ind.
1977); see also Allen, 496 N.E.2d at 415, n.3

Political subdivision must assert defense in answer to
complaint
 Health & Hosp. Corp. of Marion County v. Gaither, 397
N.E.2d 589, 592 (Ind. 1979)

Although defendant must assert defense in its responsive
pleading failure to do so may not be fatal

Allowed defendant to amend answer to include affirmative
defense of waiver
 Ct. relied on general policy providing for liberal amendment
of pleadings, and trial courts’ broad discretion to allow
amendments

Fowler failed to assert affirmative defense in original answer,
but allowed to amend answer 1.5 years after complaint was
filed
 Amendment permitted because plaintiff failed to prove
undue prejudice if amendment was allowed

Focuses on representations made by defendant or its
agents to plaintiff, which induce a reasonable belief that
formal notice is unnecessary
 Baxter, 593 N.E.2d at 1282

Conduct of defendant or its agents and/or plaintiff may
satisfy purpose of ITCA notice provisions
 Estops defendant from asserting plaintiff’s noncompliance with ITCA
 Powell, 393 N.E.2d at 192

Conduct that satisfies purpose of ITCA includes:
 Preparation of defense or admissions of liability;
 Letters/writings involving descriptions of the incident, causes and
conditions thereof or Nature and extent of the injuries;
 Promises, payments, settlements or other conduct/acts of defendant
or plaintiff

Crucial issues when considering estoppel:
 Whether “governmental unit had actual knowledge of and
investigated the accident and surrounding circumstances”
 Coghill v. Badger, 418 N.E.2d 1201, 1208 (Ind. Ct. App. 1981)
 Court should focus on whether plaintiff actually believed, by way of
the government entity’s acts, that formal notice under ITCA was
unnecessary
Yasmin L. Stump
YASMIN L. STUMP LAW GROUP, PC
THREE MERIDIAN PLAZA, SUITE 100
10333 NORTH MERIDIAN STREET
INDIANAPOLIS, IN 46290
317.705.0707
[email protected]
Alexander Jesus Limontes
MITCHELL HURST DICK & McNELIS, LLC
152 EAST WASHINGTON STREET
INDIANAPOLIS, IN 46204
317.636.0808
[email protected]