Thursday, September 25, 2008

Recommendation to Indiana General Assembly - Drastically Modify or Repeal Notice of Tort Claim Requirement

We in the legal profession know the requirement well. When you sue government in Indiana, you usually have to first serve the entity with a Notice of Tort Claim. The idea behind the requirement is a noble one. If you think you have a lawsuit against government, it is best to notify government officials first so they can conduct an investigation and possibly work out a settlement before government gets drawn into expensive litigation.

It's a noble idea that has gone horribly wrong in practice. One problem is that the public generally does not know about the strict deadlines for serving the notice. Before the person gets to the lawyer's office, quite often the deadline has passed. Even most non-lawyers in Indiana know the typical 2 year statute of limitations for filing most lawsuits in Indiana. The much shorter notice of tort claim deadlines - 180 days for suing local government and 270 days for suing the state - are not known by most people and are frequently missed. Missed notice of tort claim deadlines are the weapon that government lawyers use against people simply wanting their day in court.

My feelings about the notice requirement would be different if the law was actually being used as it was intended. For example, let's consider Notices of Tort Claim filed against the State. The Indiana Attorney General's Office is responsible for investigating those claims. Of course, the Attorney General's Office is also the office charged with providing legal representation to the state when the tort claim becomes a lawsuit. What are the odds that the AG's office is going to conduct an investigation and then produce information and an opinion harmful to the AG's efforts at later providing legal representation to a state agency that does not want to settle? Don't never happens. Or I should say an actual investigation never happens. I do not know of a single instance in my years of legal practice where the Attorney General's Office (regardless of whether it was occupied by a Republican or Democrat) has ever conducted an actual investigation of a tort claim to determine if it had merit. No attorney I talked to could remember any instance of an investigation of a tort claim being conducted, much less a settlement being reached prior to litigation...which is the whole purpose of the notice of tort claim.

A year or so ago, I served the Attorney General's Office notice of a whistleblowing and wrongful discharge claim I had against the Indiana Department of Insurance. I provided the AG's office with extensive details of the claim, including witness, exhibits, and the specific legal violations. No discernible effort was made to look into the facts I cited or to talk to the witnesses I identified, including me. At the end of the 90 days, I received the typical form letter all of those of us who file tort claims receive a letter saying that an investigation had been conducted and the claim had found to be without merit.

I was not surprised, to say the least. As an attorney, I knew to discount the statement in the letter that an "investigation" had been conducted and my claim found to be without merit. But would a lay person also know not to take seriously the statement that an investigation had been conducted and the claim was found to be meritless? Probably not. Besides the facts of the claim, what if a person is given false information regarding the law? Yesterday I ran across a letter sent by the Attorney General's Tort Claim Division which gave the individual the blatantly false legal opinion that because the state had contracted out medical services in the prisons to a private company, the State could not be held liable for wrongdoing by the private company in rendering those services. Wanna bet? It seems morally wrong to give people false information about their claims, especially while not disclosing the conflict with being a supposedly objective investigator of the facts and an advocate on the same case.

The only area where the Notice of Tort Claim requirement spurs an actual, serious investigation is, in my experience, with local government. Generally that's not true with bigger counties and cities that get sued all the time, but with towns and small cities, public officials do take notice when someone threatens to sue. Investigations actually get conducted and settlements prior to litigation sometimes are reached.

The Indiana General Assembly needs to take a closer look at the notice of tort claim requirement. Repeal, especially for state suits, may be the best option. At the very least, farm out the investigation of the claim to some entity besides the Attorney General's Office which has an inherent self-interest in not producing investigatory materials or conclusions that could be then used against the AG's attorneys defending those state agencies in litigation.

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