TITLE 10 OFFICE OF ATTORNEY GENERAL FOR THE STATE
Notice of First Public Comment Period
LSA Document #23-720
The Office of Attorney General for the State is soliciting public comment on adding
10 IAC 3-2-2 to prescribe a revised claim form to be used to file a notice of tort claim, and to repeal
10 IAC 3-2-1. The Office of Attorney General for the State seeks comment on the affected citations listed and any other provisions of Title 10 that may be affected by this rulemaking.
OVERVIEW
Basic Purpose and Background
This rulemaking is required under
IC 34-13-3-6 which provides for the adoption of a tort claim form to be issued by the Office of Attorney General (OAG). The OAG is issuing a revised tort claim form to reflect recent statutory changes affecting the tort claim form. The rulemaking will affect governmental entities that are required to produce the tort claim form for use and reliance by the public.
For purposes of
IC 4-22-2-28.1, small businesses affected by this rulemaking may contact the Small Business Regulatory Coordinator:
James Harry, Deputy Attorney General, Advisory Division
Office of the Indiana Attorney General
Indiana Government Center South, Fifth Floor
302 West Washington Street
Indianapolis, IN 46204
(317) 614-0139
james.harry@atg.in.gov
Matthew Jaworowski
Small Business Ombudsman
Indiana Economic Development Corporation
One North Capitol, Suite 700
Indianapolis, IN 46204
(317) 650-0126
majaworowski@iedc.in.gov
Resources available to regulated entities through the small business ombudsman include the ombudsman's duties stated in
IC 5-28-17-6, specifically
IC 5-28-17-6(9), investigating and attempting to resolve any matter regarding compliance by a small business with a law, rule, or policy administered by a state agency, either as a party to a proceeding or as a mediator.
REQUEST FOR PUBLIC COMMENTS
The Office of Attorney General for the State is soliciting public comments on the proposed rule. Comments may be submitted in one of the following ways:
(1) By mail or common carrier to the following address:
LSA Document #23-720
James Harry, Deputy Attorney General, Advisory Division
Office of the Indiana Attorney General
Indiana Government Center South, Fifth Floor
302 West Washington Street
Indianapolis, IN 46204
(317) 614-0139
james.harry@atg.in.gov
(2) By electronic mail to james.harry@atg.in.gov. To confirm timely delivery of submitted comments, please request a document receipt when sending the electronic mail. PLEASE NOTE: Electronic mail comments will not be considered part of the official written comment period unless they are sent to the address indicated in this notice.
(3) Attend scheduled public hearing.
All comments must be postmarked or time stamped not later than November 24, 2023.
The rule, Regulatory Analysis and the data, studies, or analyses referenced in the Regulatory Analysis, and materials incorporated by reference (if applicable) are on file at the office of the Indiana Attorney General, 302 West Washington Street, Indianapolis, Indiana and are available for public inspection. Copies of the rule and Regulatory Analysis and the data, studies, or analyses referenced in the Regulatory Analysis are available at the office of the Indiana Attorney General.
If the OAG does not receive substantive comments during the public comment period or public hearing, the rule may be adopted with text that is the same as or does not substantially differ from the text of the proposed rule published in this notice.
10 IAC 3-2-2 Tort claims against the state; revised form
Authority:
IC 34-13-3-6
Sec. 2. (a) A claim for personal injury or property damage against the state of Indiana must be:
(1) filed on the form prescribed in subsection (c); or
(2) in writing as prescribed under IC 34-13-3 and this rule.
(b) Subsection (c) applies to a cause of action that accrues during a period of a state disaster emergency declared under IC 10-14-3-12 to respond to COVID-19, if the state of disaster emergency was declared after February 29, 2020, and before April 1, 2022. A governmental entity or an employee acting within the scope of the employee's employment is not liable for an act or omission arising from COVID-19 unless the act or omission constitutes gross negligence, willful or wanton misconduct, or intentional misrepresentation. If a claim described in subsection (c) is:
(1) a claim for injury or death resulting from medical malpractice; and
(2) not barred by the immunity provided under this subsection;
the claimant is required to comply with all the provisions of IC 34-18.
(c) The claim form is as follows:
| | | |
 | | | |
| NOTICE OF TORT CLAIM FOR | OFFICE OF ATTORNEY GENERAL |
| PROPERTY DAMAGE AND/OR PERSONAL INJURY | ATTN: Tort Claim Investigations |
| State Form 54668 (R / 7-17) | Government Center South, 5th floor |
| Special Investigations Division | 302 W. Washington Street |
| | Indianapolis, IN 46204 |
| | Telephone: (317) 232-6350 |
| | | | |
| INSTRUCTIONS: | Anyone who has a claim for personal injury or property damage against the State of Indiana must either use this form to file a claim or make the claim in writing as prescribed in IC 34-13-3. Immunities are listed on the back of this form. |
| | 1. | If applicable, include copies of accident/incident report, vehicle registration, paid receipts for repair or two (2) estimates for repair, medical reports, photographs, and any additional documentation in reference to this matter. |
| | 2. | Each person who had a loss should file a separate form. |
| | 3. | Sign and date this form. |
| | 4. | State statute requires the claim be delivered in person or be sent via Certified or Registered mail to the address in the upper right corner above. |
| | 5. | Do not delay making your claim. Indiana law gives you two hundred seventy (270) days after the loss to make a claim, and it must comply with IC 34-13-3. |
| | 6. | Keep a copy of your claim form, receipts, bills, and certified/registered mail receipt. |
| | 7. | If your claim is properly filed, the Office of the Attorney General will investigate it and will notify you in writing within ninety (90) days of receipt if your claim is approved. A claim is denied if not approved within ninety (90) days. |
| | 8. | The filing of this claim is part of a legal process. If you have any questions about the right way to file a claim, please contact an attorney of your choice. The state's attorneys are not authorized by law to assist you with filing this claim. For your information, a list of actions, or conditions, resulting in non-liability pursuant to IC 34-13-3 are shown on the back of this form. |
| | | Please be advised that this form is not intended for use for claims against political subdivisions, which have some different requirements, including only one hundred eighty (180) days after the loss to make a claim. |
| | | | | | | | | |
| | | | | | | | | | |
| CLAIMANT INFORMATION |
| Name | Home Telephone | Work Telephone | Cellular Telephone |
| | | | |
| | | | |
| Address at Time of Loss (number and street, city, state, and ZIP code) | E-mail Address |
| _______________________________________ | |
| | Driver License Number | Issuing State |
| Current Address (if different from above) | | |
| _______________________________________ | Vehicle License Plate Number (if involved) | Issuing State |
| | | |
| LOSS INFORMATION |
| Date of Loss | Time of Loss | Dollar Amount of Loss | State Agency Involved | State Vehicle Commission (if known) |
| | ❑ AM | | | |
| | ❑ PM | | | |
| Exact Location of Loss (include town, street and nearest crossroad) | Loss County |
| __________________________________________________________________ | |
| | |
| Names/Addresses of All Persons Involved (if known) |
| _______________________________________________________________________________ |
| |
| Alleged Negligence |
| _______________________________________________________________________________ |
| |
| Explanation of what happened (use additional sheets if necessary.) |
| _______________________________________________________________________________ |
| _______________________________________________________________________________ |
| _______________________________________________________________________________ |
| _______________________________________________________________________________ |
| |
| Please read: I swear and affirm under the penalties for perjury that the foregoing information is true and correct to the best of my knowledge and belief. |
| |
| Claimant's Signature | | Date (m/d/yy) |
| |
| Immunity of governmental entity or employee |
A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from the following:
(1) The natural condition of unimproved property.
(2) The condition of a reservoir, dam, canal, conduit, drain, or similar structure when used by a person for a purpose that is not foreseeable.
(3) The temporary condition of a public thoroughfare or extreme sport area that results from weather.
(4) The condition of an unpaved road, trail, or footpath, the purpose of which is to provide access to a recreation or scenic area.
(5) The design, construction, control, operation, or normal condition of an extreme sport area, if all entrances to the extreme sport area are marked with:
(A) a set of rules governing the use of the extreme sport area;
(B) a warning concerning the hazards and dangers associated with the use of the extreme sport area; and
(C) a statement that the extreme sport area may be used only by persons operating extreme sport equipment.
This subdivision shall not be construed to relieve a governmental entity from liability for the continuing duty to maintain extreme sports areas in a reasonably safe condition.
(6) The initiation of a judicial or an administrative proceeding.
(7) The performance of a discretionary function; however, the provision of medical or optical care as provided in IC 34-6-2-38 shall be considered as a ministerial act.
(8) The adoption and enforcement of or failure to adopt or enforce:
(A) a law (including rules and regulations); or
(B) in the case of a public school or charter school, a policy;
unless the act of enforcement constitutes false arrest or false imprisonment.
(9) An act or omission performed in good faith and without malice under the apparent authority of a statute which is invalid if the employee would not have been liable had the statute been valid.
(10) The act or omission of anyone other than the governmental entity or the governmental entity's employee.
(11) The issuance, denial, suspension, or revocation of, or failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization, where the authority is discretionary under the law.
(12) Failure to make an inspection, or making an inadequate or negligent inspection, of any property, other than the property of a governmental entity, to determine whether the property complied with or violates any law or contains a hazard to health or safety.
(13) Entry upon any property where the entry is expressly or impliedly authorized by law.
(14) Misrepresentation if unintentional.
(15) Theft by another person of money in the employee's official custody, unless the loss was sustained because of the employee's own negligent or wrongful act or omission.
(16) Injury to the property of a person under the jurisdiction and control of the department of correction if the person has not exhausted the administrative remedies and procedures provided by IC 34-13-3-7.
(17) Injury to the person or property of a person under supervision of a governmental entity and who is:
(A) on probation;
(B) assigned to an alcohol and drug services program under IC 12-23, a minimum security release program under IC 11-10-8, a pretrial conditional release program under IC 35-33-8, or a community corrections program under IC 11-12; or
(C) subject to a court order requiring the person to be escorted by a county police officer while on or in a government building (as defined in IC 36-9-13-3) owned by a county building authority under IC 36-9-13, unless the injury is the result of an act or omission amounting to:
(i) gross negligence;
(ii) willful or wanton misconduct; or
(iii) intentional misconduct.
(18) Design of a highway (as defined in IC 9-13-2-73), toll road project (as defined in IC 8-15-2-4(4)), tollway (as defined in IC 8-15-3-7), or project (as defined in IC 8-15.7-2-14) if the claimed loss occurs at least twenty (20) years after the public highway, toll road project, tollway, or project was designed or substantially redesigned; except that this subdivision shall not be construed to relieve a responsible governmental entity from the continuing duty to provide and maintain public highways in a reasonably safe condition.
(19) Development, adoption, implementation, operation, maintenance, or use of an enhanced emergency communication system.
(20) Injury to a student or a student's property by an employee of a school corporation if the employee is acting reasonably under a:
(21) An act or omission performed in good faith under the apparent authority of a court order described in IC 35-46-1-15.1 or IC 35-46-1-15.3 that is invalid, including an arrest or imprisonment related to the enforcement of the court order, if the governmental entity or employee would not have been liable had the court order been valid.
(22) An act taken to investigate or remediate hazardous substances, petroleum, or other pollutants associated with a brownfield (as defined in IC 13-11-2-19.3) unless:
(A) the loss is a result of reckless conduct; or
(B) the governmental entity was responsible for the initial placement of the hazardous substances, petroleum, or other pollutants on the brownfield.
(23) The operation of an off-road vehicle (as defined in IC 14-8-2-185) by a nongovernmental employee, or by a governmental employee not acting within the scope of the employment of the employee, on a public highway in a county road system outside the corporate limits of a city or town, unless the loss is the result of an act or omission amounting to:
(A) gross negligence;
(B) willful or wanton misconduct; or
(C) intentional misconduct.
This subdivision shall not be construed to relieve a governmental entity from liability for the continuing duty to maintain highways in a reasonably safe condition for the operation of motor vehicles licensed by the bureau of motor vehicles for operation on public highways.
(24) Any act or omission rendered in connection with a request, investigation, assessment, or opinion provided under IC 36-9-28.7.
(Office of Attorney General for the State; 10 IAC 3-2-2)
Posted: 10/25/2023 by Legislative Services Agency
DIN: 20231025-IR-010230720FNA
Composed: May 18,2024 7:39:55AM EDT
A
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