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Hutchinson v. Wiggington

United States District Court, Southern District of Indiana, New Albany Division

February 12, 2014

BERTHA HUTCHINSON, Plaintiff,
v.
SPARK WIGGINGTON and NEW ALBANY-FLOYD COUNTY CONSOLIDATED SCHOOL CORPORATION, Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 23)

SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana

This personal injury case is in federal court on the basis of diversity jurisdiction. It is now before us on Defendants’ Motion for Summary Judgment.

FACTS

On November 4, 2010, Plaintiff, a pedestrian, was struck by a school bus driven by Spark Wiggington in the course and scope of his employment with the New Albany-Floyd Consolidated School Corporation (the “School Corporation”). The very next day, the School Corporation’s liability insurer, Indiana Insurance, opened a file and promptly began investigating the incident. Just six days after the occurrence, on November 10, 2010, Indiana Insurance interviewed its insured driver, Wiggington, by telephone about what had happened.

On November 15, 2010, two Kentucky lawyers wrote a letter to Indiana Insurance advising that they were representing Plaintiff in connection with the accident. That letter, in its entirety, read:

Please be advised that our office represents Bertha Hutchinson for serious injuries she sustained when struck by Mr. Wigginton’s vehicle.
Please advise if there are med-pay benefits available.
Also, please send us copies of any photographs, property damage or otherwise, statements, or other documentation you may have regarding this claim.
Please acknowledge receipt of this correspondence in writing. Thank you.

[Letter at Dkt No. 25-2.]

Nine months later, on August 19, 2011, Indiana Insurance received a “demand package” from Plaintiff’s Kentucky lawyers outlining the amount of Plaintiff’s medical bills and lost wages. Five days thereafter, on August 24, 2011, Indiana Insurance advised Plaintiff’s Kentucky lawyers that the School Corporation was denying liability for the accident.

On October 3, 2012, Plaintiff, by and through an Indiana lawyer licensed to practice in this Court, filed her Complaint in this action. When Defendants filed their Answer, they asserted as an affirmative defense that Plaintiff’s claims were barred because Plaintiff had failed to provide them with the written tort claim notice required by Ind. Code § 34-13-3-8. Defendants have now moved for summary judgment on that basis.

STANDARD OF REVIEW

Summary judgment is appropriate when the record shows that there is “no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party supports its motion for summary judgment with affidavits or other materials, the burden shifts to the non-moving party to show that an issue of material fact exists. Kas ...


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