Our clients often refer cases to us involving claims against governmental entities. In Indiana it is permissible to sue a governmental entity in a subrogation matter, but the subrogated carrier must meet certain requirements prior to being legally allowed to file a lawsuit. This post is intended to give you information about how to comply with the statute that sets forth the requirements so that when you send the file to Keis George for suit we can proceed with the lawsuit immediately.
Is the insured liable for the accident
The first issue to look at when suing a governmental entity is whether the insured could be at all liable for the accident. Under the Indiana Tort Claims Act (Indiana Code 34-3-13), a governmental entity is only liable for an accident if their employee is deemed to be 100% at fault for the accident. If there is any percentage of negligence apportioned to the insured, the subrogated carrier will not recover at all.
Carrier must provide notice to the government
The second issue under the Tort Claims Act is that a subrogated carrier must provide notice of the claim to the government before the subrogated carrier can file suit and recover. Below are some important things to keep in mind regarding the notice:
- The notice must describe in a short and plain statement the facts on which the claim is based. This statement must include:
- The circumstances which brought about the loss;
- The extent of the loss;
- The time and place the loss occurred;
- The names of all persons involved if known;
- The amount of the damages sought;
- The residence of the person making the claim at the time of the loss and at the time of filing the notice.
- The notice must be filed with the attorney general or the state agency involved within two hundred seventy (270) days after the loss occurs. However, if the claim is against a “political subdivision” (e.g., community action agencies, contract public transportation agencies, volunteer fire departments), the notice must be filed within one hundred eighty (180) days. If the claim involves an employee of the state, you must give notice to the attorney general. If the claim involves an employee of a city or a county, you must give notice to the city or county.
- The notice must be in writing and must be delivered in person or by registered or certified mail.
The government will approve or deny the claim
After receiving the notice, the government will approve or deny the claim within ninety (90) days. If the claim is denied, the subrogated carrier can move forward with filing suit. If the subrogated carrier does not receive a response from the government within ninety (90) days, the subrogated carrier can move forward with filing suit as well.
If the notice does not comply with the requirements listed above, the suit will be dismissed for failure to comply with the statute. We have attached a form that will help you to comply with these notice requirements. As always, please do not hesitate to contact one of our Indiana subrogation attorneys if you have any questions about the Indiana Tort Claims Act.