Wednesday, July 28, 2010

Attorney General Drops Ball, Again, on Notice of Tort Claim Investigation

Awhile back, I published a plea to the Indiana General Assembly to take a look at revising or eliminating the notice of tort claim requirement, which is not at all working as the General Assembly intended. Let me give you some background on the law.

Any time you sue a government entity in the State of Indiana, you have to do written notification of an intent to sue outlining the facts of the possible lawsuit. The obvious legislative purpose behind the act is to tip government off in advance of possible litigation so that an investigation into the facts can be conducted and a possible settlement can be reached prior to the onset of expensive litigation.

The Notice of Tort Claim requirement has never worked as advertised. I have never known the Attorney General's Office to conduct an actual investigation. For example, in my whistleblowing case against the Indiana Department of Insurance, not a single witness was ever contacted by the Attorney General's Office regarding the claims I made. Instead at the end of the ninety day period, the AG's office responded as it always does - that an "investigation" had been conducted and the State of Indiana was found not to be liable.

In late April, I served the State of Indiana with a Notice of Tort claim for a possible inverse condemnation action I was considering filing for residents of a Greenwood subdivision. The State of Indiana had widened a state road in the area and had taken down a number of trees that acted as a buffer between the busy road and the homeowner's subdivision. As a result, the value of their homes dropped substantially.

Today when I returned home from my family vacation, I found waiting for me a response from the Attorney General's Office to the notice of tort claim:

To Whom It May Concern:

On the date of the incident, Linkel Company was performing roadway services at the accident location under Project Number IR-32984. Because Linkel Company has entered into [a] contract with the Indiana Department of Transportation, the State of Indiana holds no liability in this matter."

This Claim should be filed directly with Linkel Company as the
Indiana Department of Transportation is insured through them in this matter. I have contacted the contractor regarding this matter and forwarded a copy of your Notice of Tort Claim to them. In order for you to preserve your legal rights it is necessary for you to contact them directly.

Contact the contractor listed below for any information regarding this matter and note that in light of the above information we consider this matter closed.



Todd V. Vansickle
There are so many flaws in this letter, I don't know where to begin. Let's begin though with what "accident?"

Second, the Attorney General's Office suggests they bear no legal liability whenever they contract out a service. Since when? The State of Indiana can most certainly be successfully sued for the action of a contractor. It's unfortunate that the Attorney General's office is peddling that false legal conclusion to people who may not have the legal sophistication to know better and may walk away from a valid claim.

Third, since when does a contractor provide "insurance" to the State of Indiana? The term "insurance" has a definite legal meaning and most certainly Linkel is not an "insurer." Perhaps what Vansickle is saying is that Linkel has to indemnify (pay any claim against the State) the State of Indiana for damages done in the course of its contract work. Indemnification though is not insurance. Even if the Linkel has to indemnify the State of Indiana, the plaintiff would still have to sue the State of Indiana to get that indemnification.

Fourth, the letter completely overlooks the fact that Notice of Tort Claim is about a possible inverse condemnation action. Contrary to the false representation made in the letter, that inverse condemnation action would have to be filed against the State of Indiana which has condemnation authority, not the Linkel Company. It wasn't Linkel Company that came up with the plan to widen the road and take the trees. The State of Indiana did that.

If the law had worked as intended, the notice of tort claim we served would have triggered an actual investigation and the concerns of the homeowners could have been addressed...without litigation. It's obvious though the Attorney General's Office has no interest in conducting actual tort claim investigations and resolving matters before litigation is filed. I would again urge the General Assembly to reconsider the Notice of Tort Claim requirement as a prerequisite to litigation filed against government.

See also: Thursday, September 25, 2008, Recommendation to Indiana General Assembly - Drastically Modify or Repeal Notice of Tort Claim Requirement

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