stating that, “where the tort claimant provides the local government, through the unit or division with the responsibility for investigating tort claims against that local government, or the company with whom the local government or unit has contracted for that function, the information required by § 5-304 [ (b) ](3) to be supplied, who thus acquires actual knowledge within the statutory period, the tort claimant has substantially complied with the notice provisions of the LGTCA.”
How later courts described this case
- stating that, “where the tort claimant provides the local government, through the unit or division with the responsibility for investigating tort claims against that local government, or the company with whom the local government or unit has contracted for that function, the information required by § 5-304 [ (b) ](3) to be supplied, who thus acquires actual knowledge within the statutory period, the tort claimant has substantially complied with the notice provisions of the LGTCA.”
- concluding that plaintiffs timely notice to town’s insurer, rather then the town, constituted substantial compliance with statutory notice requirement, because notice was provided in sufficient time to enable the town to conduct a “timely investigation”; “the evidence [was] still fresh”; and the insurer was notified “that Plaintiff expected some type of compensation from its insured, the Town of Easton, for his personal injuries and property damage”
- holding that claimant, who wished to pursue automobile negligence claim against the Town of Easton, substantially complied with notice requirements of CJ section 5-304 by giving timely notice of the claim to the town’s insurer
- observing that it was “important to us in Moore, in accepting the claimants’ substantial compliance arguments, that the intertwined information technology systems of the two existed, that Trigon had authority to settle unilaterally claims up to $2500 per claim, and that Trigon conducted extensive fact-finding and other negotiations with the claimants, on behalf of the County”
Written by the judges who cited it.
The opinion
CATHELL, Judge,
dissenting.
I respectfully dissent.
That which I foresaw in Moore and Mendelson has occurred in the case sub judice. With the decision in the case at bar all a plaintiffs attorney has to do is send out form letters to potential insurers of local governments, and if one is sent to a local government’s insurer, then that plaintiff, according to the majority, has complied with the provisions of the Local Government Tort Claims Act. A plaintiff can notify an insurance company, negotiate with an insurance company, have the claim settled and paid by the insurance company, without the local government ever having any direct knowledge that a claim has been made, and only getting indirect knowledge when its premiums are raised as a result of its claim’s history. A history of which it may have little knowledge.
The majority again gives short shrift to the settled law (before this Court unsettled it), that the notice provisions of the Local Government Tort Claims Act are conditions precedent to the maintenance of most tort actions against local governments. When the Legislature abrogated certain aspects of governmental immunity for local governments, it did so in respect to torts, only if, as a condition precedent, a specific notice of the existence of the pending claim was given to specified entities. Insurance companies were nowhere indicated as proper recipients of the required notice.
The movement by this Court to judicially repeal a Legislative action, i.e., the notice requirement of the Local Govern *310 ment Tort Claims Act, without declaring the statute itself to be unconstitutional is, in my view, inappropriate. It began not with this case, but with several cases over the last decade. In my dissent in Heron v. Strader, 361 Md. 258, 273 , 761 A.2d 56, 64 (2000), I fully expressed my concern that the Court has strayed from applying the policy of the Legislature to applying a policy of its own choosing. With the present case, the majority of the Court goes further in repealing this Legislative policy than even I thought possible. After having studied the way in which the Court has dealt with the issue in the past fifteen or so years, I had, until Moore and Mendelson, thought that this Court could not possibly go so far as to hold that notice to an insurance company could satisfy the statutory provisions. However, in those two recent cases, I noted that if the majority could do what it did there, it could do what it has done here. I had hoped by pointing out where the Court’s policy was going, to deter it. Instead, as the majority notes in the present case, my warning was but a prediction — to my chagrin, an accurate one.
I suggest that when a claimant’s attorney, who obviously has never read the notice provisions of the statute, can contact an insurer directly without making any notice on any governmental official, 1 the statute is dead.
The majority, in my view, is substituting what it considers to be a better public policy for the public policy announced by the Legislature when it created the notice provisions as conditions precedents to the maintenance of suits. The Legislature very carefully crafted the provisions that must be met in order that the immunity of a local government would be waived. The majority, as I see it, effectively repeals that portion of the *311 statute. When notice to an insurance company is construed to satisfy the notice provisions, little remains.
I discussed extensively my thoughts on the creation of the Local Government Tort Claims Acts, and the intent of the Legislature in enacting the statutes, in Heron, supra. I refer the reader to that dissent for a consideration of that discussion. It makes no sense to repeat that discussion again. I am sure it will receive the same consideration it has previously received.
I think it is important to note, however, another matter that should be of some concern. We are firm in guarding against Legislative encroachment into judicial branch authority. We guard our independence, jealously and vigorously. We should be no less vigorous in guarding the independence of the other branches of government. We do have the awesome power to treat others differently, but we should not do so. We should defer to the Legislature’s power as the primary creator of public policy, just as we require that branch to defer to the proper authority of this Court.
Simply stated, with Heron, Moore and Mendelson, and now Faulk, in addition to their predecessor cases, the Court has been, and is, in my opinion, legislating. It is substituting its concepts of the proper public policy for that of the Legislative branch. I believe that it is wrong to do so. As a result, if local governments want the protections they have always thought were provided by the notice provisions at issue, they had better go to the Legislature. There is no longer help, or even a sympathetic ear for them in this branch of government. For, alas, as to this issue, my struggle to reason with my otherwise almost always reasonable colleagues is at an end. I may be stubborn, but I know when I no longer have any chance of having my point of view on this issue accepted by three other members of the Court. If I were to continue the fight, I would be unreasonable. (I am as capable of being unreasonable as anyone, I suppose.) As I stated in a somewhat recent case, the name of which escapes me, quoting from *312 the late Chief Joseph of the Nez Perce tribe, “I will fight no more forever” this battle.
. The majority opines that the driver of the governmental entity’s vehicle had reported the accident to his supervisor, and the supervisor had reported it to a safety officer. That really has nothing to do with the statute. The notice provisions of the statute are concerned with the notification of "claims” to officials in local government possessing certain levels of authority. If an employee’s reporting of an accident is enough, in and of itself, to constitute notice to municipal authorities that claims are going to be made, the Act’s provisions requiring notice from claimants are relatively meaningless.