Katrina Morgan v. Lake County Juvenile Center, Lake Superior Court, Juvenile Division and Juvenile Division Judge (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 24 2016, 10:42 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Darnail Lyles Gregory F. Zoeller Gary, Indiana Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Katrina Morgan, August 24, 2016 Appellant-Plaintiff, Court of Appeals Case No. 37A03-1603-CT-693 v. Appeal from the Jasper Superior Court Lake County Juvenile Center, The Honorable James R. Ahler, Lake Superior Court, Juvenile Judge Division and Juvenile Division Trial Court Cause No. Judge, 37D01-1308-CT-621 Appellees-Defendants

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Baker, Judge. [1] Katrina Morgan appeals the grant of summary judgment by the trial court in

favor of the Lake County Superior Court, Juvenile Division (the Juvenile

Court), and the Judge of that Court (the Judge). She argues that the tort claim

notice she served on other defendants constituted substantial compliance with

the notice requirements of the Indiana Tort Claims Act.1 Finding that Morgan

did not timely notify the Juvenile Court or the Judge, we affirm.

Facts [2] In November 2008, fourteen-year-old D.M. was residing in the Lake County

Juvenile Detention Center (the Detention Center). On November 16, 2008,

D.M. was in the facility’s gym when he suddenly became unresponsive. Within

the hour, he passed away. [3] On May 12, 2009, Katrina Morgan’s counsel served a tort claim notice on the

Detention Center, the Lake County Board of Commissioners (the Board), and

the Indiana Political Subdivision Risk Management Commission. Morgan

never served any notice to Indiana’s Office of Attorney General (Attorney

General). The May 12 notice, however, was brought to the Attorney General’s

attention, and the office responded to Morgan on June 10, 2009: “Based on the

information provided, it does not appear that the State of Indiana has any

1 Ind. Code § 34-13-3-1, et seq.

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connection with this case. Unless you have some theory that would include the

State of Indiana as a party, this claim will be filed with no further action.”

Appellant’s App. p. 221. On December 9, 2009, Morgan filed a complaint for

wrongful death against the Detention Center and the Board. [4] Nearly four years after she sent out her tort claim notice, on March 12, 2013,

Morgan filed a motion to join the Judge as a defendant. The trial court granted

the motion and granted Morgan leave to file an amended complaint. Her

amended complaint also added the Juvenile Court as a defendant. [5] On March 6, 2015, the Juvenile Court and the Judge (collectively, the New

Defendants) moved to file an amended answer, adding the affirmative defense

of lack of tort claim notice. After this motion was granted and the answer

amended, the New Defendants moved for summary judgment. After a hearing,

the trial court granted the New Defendants’ motion for summary judgment. It

explained:

In this case it is undisputed that on May 12, 2009, Morgan directed a tort claim notice (the “Notice”) to the Lake County Juvenile Center, the Lake County Board of Commissioners, and the Indiana Political Subdivision Risk Management Commission. The Court finds that, as a matter of law, the Notice is not sufficient under the ITCA to put the Lake Superior Court, Juvenile Division and the Juvenile Division Judge on timely notice of her claim.

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Appellant’s App. p. 315-16. Morgan now appeals.2

Discussion and Decision [6] When reviewing a trial court’s ruling on summary judgment, we stand in the

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

affirm or reverse. Kramer v. Focus Realty Group, LLC, 51 N.E.3d 1240, 1243

(Ind. Ct. App. 2016). Therefore, we look to whether there are genuine issues of

material fact and whether the moving party is entitled to judgment as a matter

of law. Ind. Trial Rule 56 (C). [7] Under the Indiana Tort Claims Act (ITCA), a claim for monetary damages

against the state is barred unless notice is filed with the Attorney General or the

state agency involved within 270 days after the loss. Ind. Code § 34-13-3-6.

The notice must describe in a short and plain statement the facts on which the

claim is based. I.C. § 34-13-3-10. A claimant’s failure to provide the notice

required by the ITCA entitles the state to a dismissal. Ind. Dep’t of Corr. v. Hulen,

582 N.E.2d 380, 380-81 (Ind. 1991). [8] Morgan claims that she substantially complied with the ITCA notice

requirements. As the claimant, she bears the burden of establishing substantial

compliance. Chang v. Purdue Univ., 985 N.E.2d 35, 52 (Ind. Ct. App. 2013). In

determining whether substantial compliance is established, we look to the

2 Morgan’s claims against the other defendants are still ongoing.

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purpose of the notice requirements, which is “to inform state officials with

reasonable certainty of the accident or incident and surrounding circumstances

and to advise of the injured party’s intent to assert a tort claim so that the state

may investigate, determine its possible liability, and prepare a defense to the

claim.” Id. Whether a party has substantially complied with the notice

requirement of the ITCA is a question of law. Id. [9] Morgan argues that the New Defendants had notice of her claim on May 12,

2009, when she served the Detention Center, because the Detention Center was

established by the Juvenile Court and operated under the Judge. She also

points to the Attorney General’s letter of June 10, 2009; she argues that this

proves that the Attorney General knew of her claim within the prescribed 270

days, and that she therefore substantially complied with the ITCA notice

requirements. [10] We disagree. While the Attorney General was aware of Morgan’s tort claim

notice, it was unaware that Morgan intended to seek recovery from a state

entity. As our caselaw makes clear, the ITCA notice requirements are intended

to notify governmental entities that litigation is imminent so that they may

prepare a defense. Although Morgan timely notified several county-level

entities that litigation was imminent, the Juvenile Court and the Judge have

gone nearly four years without the opportunity to prepare any defense because

they were never notified that they were being sued.

Court of Appeals of Indiana | Memorandum Decision 37A03-1603-CT-693 | August 24, 2016 Page 5 of 6 [11] We would like to commend the Attorney General for the June 10, 2009, letter,

which informed Morgan that she had not served notice on any state entities.

Although it was not required to do so, the Attorney General went out of the

way to enable Morgan to properly notify the state in case she planned to sue a

state entity. When Morgan received the letter, she still had two more months to

send a timely notice indicating her intent to sue the state. Instead, she waited

nearly four years to add the New Defendants. [12] While we are hesitant to deny a claimant’s day in court based on minor and

harmless technical violations of the ITCA, e.g., Galbreath v. City of Indianapolis,

253 Ind. 472, 255 N.E.2d 225 (1970), we do not believe that Morgan has fallen

into a trap for the unwary. She knew that the state did not believe that it was a

possible defendant in her lawsuit, and she had ample time to file a tort claim

notice to that effect, but she chose not to. Therefore, her claims against the

New Defendants are barred, and the trial court did not err by entering summary

judgment in their favor. Her claims against the properly-notified defendants

may continue. [13] The judgment of the trial court is affirmed and remanded for further

proceedings with regard to the remaining defendants.

Vaidik, C.J., and Najam, J., concur.

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