ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE:
ROBERT J. KOPKA DAVID PAUL ALLEN
LAWRENCE M. HANSEN Hammond, Indiana
GREGORY M. BOKOTA
Landau, Omahana & Kopka
LCEOC, INC., and GREATER HAMMOND ) COMMUNITY SERVICES, INC., ) ) Appellants-Defendants, ) ) vs. ) No. 45A03-9710-CV-356 ) PATRICIA S. GREER, ADMINISTRATRIX OF ) THE ESTATE OF FREDDIE GREER, DECEASED, ) ) Appellee-Plaintiff. )
Defendants-Appellants Lake County Economic Opportunity Council ("LCEOC"),
Greater Hammond Community Services, Inc. ("GHCS") and Bruce Lewis appeal from the
denial of their motion for summary judgment following the complaint filed by Patricia Greer,
Administratrix of the Estate of Freddie Greer, Deceased ("Greer").
We affirm and remand for further proceedings.
services. LCEOC formed GHCS as the community service corporation to implement its
policies in the cities of Hammond, Whiting, Munster, Highland and Northern Dyer.See footnote 1
On May 3, 1994, Greer used the transportation services provided through GHCS. Bruce Lewis, the driver employed by GHCS, transported Greer to his doctor's appointment without incident. On the return trip however, Lewis lost his balance and dropped Greer while he was strapped into his wheelchair. In April of 1996, the Estate filed a wrongful death action and an alternative survival action against the Defendants. The Defendants denied all material allegations in their answer and raised several affirmative defenses including failure to comply with the notice requirements of the ITCA.
In February of 1997, the Defendants filed their motion for summary judgment alleging that LCEOC and GHCS were governmental entities under the ITCA, and Greer's cause of action was therefore barred for failure to comply with the notice requirements under the ITCA. The Estate filed its response challenging both organizations' immunity status. Following a hearing, the trial court denied summary judgment finding that genuine issues of material fact existed as to whether LCEOC and GHCS were entitled to the protection of the ITCA. This interlocutory appeal followed.See footnote 2 2
(2) Has the authority under state or federal law to receive money and support the community action programs described in sections 3 and 4 of this chapter.
In support of its status as a community action agency, LCEOC designated a letter
from former Governor Evan Bayh recognizing the organization as the "Community Action
Agency" for Jasper, Lake, Newton and Porter counties.See footnote 4
designated the deposition testimony of Clifton Johnson, LCEOC's Vice-President of
Administration. Johnson testified that LCEOC was a community action agency pursuant to
statute. LCEOC also designated a pamphlet entitled "LCEOC, Inc. 1965 to 1990:
Celebrating 25 Years of Excellence." (R. 497). The first paragraph of this LCEOC literature
explains the organization's formation as follows:
LCEOC was established as a Community Action Agency by the Lake County Board of Commissioners in February, 1965. Community Action Agencies were created to implement the Economic Opportunity Act of 1964. Community Action Agencies, or "CAP's" as they were called, were the flagship of President Lyndon Johnson's Great Society programs.
. . . " 42 U.S.C. 2790(a). A community action program "includes or is designed to include
. . . a range of services and activities having a measurable and potentially major impact on
causes of poverty in the community . . . " Id.
LCEOC's Corporate History indicates that LCEOC is a private, not-for-profit corporation chartered by the State of Indiana in February of 1965. Indeed, LCEOC owes its beginnings to the Lake County Board of Commissioners. Article II of LCEOC's By-Laws detail the purposes and objectives of the corporation as follows:
To stimulate a better focusing of all available Federal, State, local and private resources in such localities as in the opinion of the Board shall effectuate the purposes of the Corporation upon the goal of enabling low-income and disadvantaged families and individuals . . . to attain the skills, knowledge, and motivations and secure the opportunity needed for them to become fully self- sufficient . . .
(R. 191). We note that this language mirrors the language of Title II of the Economic Opportunity Act of 1964. LCEOC is also able to receive and administer private and public funds. In fact, the record indicates that LCEOC receives the majority of its funding from public sources pursuant to community action legislation.
In addition to the Governor's letter designating LCEOC as a community action agency, it is undisputed that LCEOC complies with the Title 12 legislation governing community action agencies in Indiana. For example, Indiana Code 12-14-23-6 provides that community action agencies shall establish a board consisting of not less than 15 and not more than 51 members. The composition of the board shall consist of one-third elected public officials, one-third chosen by democratic selection procedures to assure that the poor in the
area are represented, and the remaining members to consist of members of business, industry,
labor, welfare, education or other major community groups. A perusal of LCEOC's
Corporate By-Laws shows that the agency is structured pursuant to the statutes governing
community action agencies. LCEOC's programs are administered through a volunteer
community action board consisting of between 15 and 51 members, and one-third of the
board are elected public officials and one-third are democratically selected.
Based on the undisputed evidence, we find that LCEOC meets the criteria for a community action agency under Ind. Code 12-14-23-2 and therefore it is a political subdivision within the meaning of Ind. Code 34-4-16.5-20. Ind. Code 12-14-23-2 does not prescribe the method of designation required and we find that the Governor's letter clearly and unambiguously designates LCEOC as a community action agency. Thus, LCEOC is entitled to notice of tort claim pursuant to Ind. Code 34-4-16.5-7.
sufficient, however, provided the purpose of the requirement is satisfied. Id. In order to
constitute substantial compliance the notice must not only inform the governmental entity
of the facts and circumstances of the alleged injury but must also advise of the injured party's
intent to assert a tort claim. Id.
Our review of the record reveals several letters from the Estate to LCEOC detailing the accident and requesting contact from LCEOC's liability insurer. The first of these letters was dated only two weeks after Greer's accident. In the second letter, the Estate specifically stated that the letter was being written as a follow-up to "the notice given on May 17, 1994 of the personal injury claim . . . of May 3, 1994." (R. 134). Hence, the Estate's correspondence not only described the details of the accident but also advised LCEOC of the Estate's intent to assert a tort claim. We believe that the Estate's correspondence with LCEOC substantially complied with the ITCA's notice requirements.
("CIB") as a governmental entity entitled to the protections of the ITCA. Specifically, in
World Productions we were deciding whether the CIB was a governmental entity and
therefore exempt from punitive damages under the ITCA. In making this determination, we
looked to the definition of "governmental entity" in the Act itself, and we were also guided
by the test employed in the Seventh Circuit opinion Brock v. Chicago Zoological Society,
820 F.2d 909 (1987). The Brock court employed a two-part inquiry to decide whether the
Chicago Zoological Society, which operates the Brookfield Zoo, was a governmental entity.
Under the Brock test, "any entity that is '(1) created directly by the State, so as to constitute
a department or administrative arm of the government, or (2) administered by individuals
who are controlled by public officials and responsible to such officials or the general public'
will be deemed to be a state or political subdivision . . . ." 514 N.E.2d at 637 (citing Brock,
820 F.2d at 910). We found this test particularly instructive because the entities specifically
enumerated as "political subdivisions under the ITCA are similarly either (1) created by the
State as instrumentalities for performing government functions, or (2) administered by
individuals who are controlled by public officials and responsible to such officials or the
Employing the Brock test, we found that the CIB was accountable to public officials in that: Board members were appointed by the city and county; Board members could be removed for cause by statute; Board funds were handled as public funds; the Board's annual budget had to be approved by the city-county council; and the Board was subject to audit
by the State Board of Accounts. Hence, we found sufficient public control so as to label the
CIB as a governmental entity entitled to immunity from punitive damages.See footnote 5
Id. at 637.
Looking to the above cases for guidance, we must determine whether GHCS is in the business of providing services that are essentially governmental in nature. LCEOC's Corporate By-Laws indicate that there are ten community service corporations ("CSC's") under the jurisdiction of LCEOC. LCEOC distributes to these ten corporations, GHCS being one of them, grants it receives from federal, state and local sources. Affiliated CSC's corporate structures are required to mirror that of LCEOC. Hence, GHCS's programs are administered through a volunteer community action board that is comprised of one-third elected public officials; all funding and auditing of GHCS is done pursuant to LCEOC's corporate guidelines; GHCS's payroll is administered through LCEOC; and LCEOC files a consolidated audit for itself and all of its CSC's with the State Board of Accounts.See footnote 6 6
In addition, LCEOC provides its CSC's with operational guidelines regarding personnel policies, purchasing procedures, accounting procedures, data collection and reporting procedures, audit procedures, board and advisory council structure and evaluation procedures. As part of its overseeing function, LCEOC's Board of Directors conducts an annual review of its CSC Board composition to maintain compliance. In the event of non-
compliance, the LCEOC Board has the authority to withhold funds unless the appropriate
corrective measures are taken. LCEOC and GHCS entered into a "Service Provider"
Contract wherein GHCS specifically consented to LCEOC's regulatory measures. GHCS
receives approximately 70% of its annual funding from LCEOC through the community
action legislation. In short,
GHCS operates pursuant to the directives of LCEOC. It receives
its funding from LCEOC and is accountable to LCEOC.
LCEOC's community services include early childhood development services, elderly services and transportation services. In its mission statement, LCEOC describes its transportation service as "one of Northwest Indiana's major public transportation providers." (R. 221). In addition to providing that community action agencies shall be treated as political subdivisions, Ind. Code 34-4-16.5-20(a) also provides that the following shall be treated as such:
(2) An individual or corporation rendering public transportation services under a contract with a commuter transportation district created under IC 8-5-15.
Hence, the legislature has deemed certain public transportation providers entitled to political subdivision treatment.
Because GHCS is a provider of services governmental in nature, and because it is administered by LCEOC, which is subject to public control and audit, we find that GHCS is a governmental entity entitled to the protections of the Act. GHCS is a division of LCEOC and the Estate's substantial compliance with the notice requirements in its letters to LCEOC
is sufficient to overcome summary judgment on GHCS's claim of lack of notice. Hence, this
cause is remanded for further proceedings consistent with this opinion.
In accordance with Public Law 100, Acts of 1982 (IC 12-1-21-1) your organization is
recognized as the Community Action Agency of your area.
Lake County Economic Opportunity Council
Serving Jasper, Lake, Newton and Porter counties.
Thank you for your efforts towards eliminating poverty and its causes in your area.
The letter is dated June 12, 1990, is on the Governor's letterhead and is signed by former Governor Bayh.
Converted by Andrew Scriven