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Madison Consolidated Schools v. Thurston

Court of Appeals of Indiana

October 23, 2019

Madison Consolidated Schools, Appellant-Defendant,
v.
Trisha Thurston, Appellee-Plaintiff.

          Appeal from the Floyd Circuit Court The Honorable John Terrence Cody, Judge Trial Court Cause No. 22C01-1804-CT-527

          Attorney for Appellant Kenneth A. Ewing Carmel, Indiana

          Attorney for Appellee Robert L. Barlow, II Madison, Indiana

          RILEY, JUDGE.

         STATEMENT OF THE CASE

         [¶1] Appellant-Defendant, Madison Consolidated Schools (Madison), appeals the trial court's denial of its motion for summary judgment in favor of Appellee-Plaintiff, Trisha D. Thurston (Thurston), concluding that Madison is estopped from asserting that Thurston failed to comply with the notice requirements of the Indiana Tort Claims Act (ITCA).

         [¶2] We affirm.

         ISSUE

         [¶3] Madison presents two issues for our review, which we consolidate and restate as the following single issue: Whether genuine issues of material fact exist with respect to Thurston's estoppel argument which preclude the grant of summary judgment to Madison.

         FACTS AND PROCEDURAL HISTORY

         [¶4] On September 5, 2014, sixteen-year-old Thurston was a passenger in a school bus operated by Madison when the school bus struck a guardrail and collided with another vehicle on Interstate 64 in Floyd County, Indiana. As a result of the collision, Thurston suffered severe physical injuries and incurred physical and mental pain.

         [¶5] Subsequent to the accident, Jacqueline Thurston (Jacqueline), Thurston's mother, was contacted by Madison's insurer, Liberty Mutual Insurance Company (Liberty Mutual). In the months following this initial contact, Jacqueline had multiple communications with representatives of Liberty Mutual. Liberty Mutual's representatives recommended "waiting until [Thurston's] treatment had been completed before discussing a settlement of her claim." (Appellant's App. Vol. II, p. 28). They instructed Jacqueline "repeatedly that her claim needed to be resolved by April 17, 2018 [but] at no time did any of [Liberty Mutual's] representatives advise [her] that a Tort Claim Notice needed to be filed [] by October 14, 2016." (Appellant's App. Vol. II, p. 28). Instead, Jacqueline was told that Thurston's claim had "to be settled or put into litigation by 4-17-2018 or she will be barred from recovery. Since she was a minor at the time of the bus accident, she ha[d] 2 years plus her 18th birthday to resolve her claim." (Appellant's App. Vol. II, p. 28). By email dated April 11, 2018, a representative of Liberty Mutual advised Jacqueline

We are not going to have all the medical in by the statute. We've received quite a bit but not everything. [Thurston] is getting ready to have her 20th birthday. You are going to need to retain counsel to [protect] the statute of limitations. Obviously this doesn't mean we are not willing to get in the remaining medical and still attempt to resolve this short of further litigation but you have ...

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