Guadalupe Blanco River Authority v. Sandra Leigh Schneider , 392 S.W.3d 321 ( 2012 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-12-00298-CV
GUADALUPE BLANCO RIVER AUTHORITY,
Appellant
v.
Sandra Leigh SCHNEIDER,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 11-2210-CV
Honorable W.C. Kirkendall, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: December 28, 2012
AFFIRMED; REMANDED
In the underlying lawsuit, Sandra L. Schneider contends she sustained physical injuries as
a result of a motor vehicle accident in which her vehicle was hit by a vehicle driven by David
Kenda. The parties do not dispute that (1) Kenda’s vehicle collided with Schneider’s vehicle
because Kenda failed to yield the right of way, (2) Kenda was driving his vehicle while in the
course and scope of his employment with the Guadalupe Blanco River Authority (“GBRA”), and
(3) GBRA is a governmental entity. Schneider sued both GBRA and Kenda on claims of
negligence. Schneider later voluntarily dismissed Kenda as a defendant pursuant to an agreed
04-12-00298-CV
order with GBRA. GBRA filed a plea to the jurisdiction in which it asserted its governmental
immunity was not waived because Schneider did not provide it with proper notice of her tort
claim. Following the denial of the plea, GBRA filed this accelerated appeal. Because we
believe a fact issue exists on whether GBRA received actual notice, we affirm the trial court’s
order and remand for further proceedings.
DISCUSSION
“A governmental unit is entitled to receive notice of a claim against it under this chapter
not later than six months after the day that the incident giving rise to the claim occurred.” TEX.
CIV. PRAC. & REM. CODE ANN. § 101.101(a) (West 2011). “The notice must reasonably
describe: (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the
incident.” Id. These notice requirements “do not apply if the governmental unit has actual
notice . . . that the claimant has received some injury, or that the claimant’s property has been
damaged.” Id. § 101.101(c). The purpose of the notice requirement is to ensure prompt
reporting of claims in order to enable governmental units to gather information necessary to
guard against unfounded claims, settle claims, and prepare for trial. Cathey v. Booth, 900
S.W.2d 339, 341 (Tex 1995). The determination of whether a governmental unit received actual
notice is a question of fact but may be determined as a matter of law where the evidence is
insufficient to raise a fact issue. Univ. of Tex. S.W. Med. Ctr. at Dallas v. Estate of Arancibia,
324 S.W.3d 544, 549 (Tex. 2010). GBRA argues Schneider failed to provide the statutorily
required formal written notice and GBRA did not have actual notice of Schneider’s alleged
injuries. Schneider contends GBRA received formal statutory notice and had actual notice in the
form of a letter from her attorney and its own internal documents. We address only whether
GBRA had actual notice because we believe that is dispositive of the appeal.
-2-
04-12-00298-CV
The accident occurred on November 11, 2009. Five days later, on November 16, 2009,
Schneider’s attorney sent a letter to the Texas Water Conservation Association Risk
Management Fund (“the Fund”), in which counsel stated his law office had “been retained to
represent [Schneider] in the recovery of property damages and personal injuries sustained in a
motor vehicle accident on the above mentioned date.” In addition to the date of loss, the letter
identified the insured as GBRA, the driver as Kenda, and Schneider as the client/claimant. Two
days later, the Fund sent a letter to Schneider’s attorney advising him that GBRA was self-
insured; there was no insurance coverage available; and the Fund would handle all claims for
GBRA. In his affidavit, William West, Jr., GBRA’s General Manager and the individual
responsible for receipt of notice and investigation of claims against GBRA, acknowledged
receiving the letter. On appeal, Schneider asserts GBRA’s internal documents that were
generated during the investigation and claims-handling process provided GBRA with actual
notice. According to Schneider, all the information necessary to allow GBRA to gather
information, settle claims, and prepare for trial is contained within these documents because the
documents identify the parties, indicate an injury was sustained, and allege fault on Kenda’s part.
In Cathey¸ the Texas Supreme Court held “that actual notice to a governmental unit
requires knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s
alleged fault producing or contributing to the death, injury, or property damage; and (3) the
identity of the parties involved.” 900 S.W.2d at 341. The mere existence of records kept by the
governmental entity is not sufficient to raise a fact issue about actual notice. Id. at 342 (holding
hospital’s own records did not impute actual notice to hospital from the knowledge that a patient
received treatment at its facility or died after receiving treatment); Dinh v. Harris Cnty. Hosp.
Dist., 896 S.W.2d 248, 253 (Tex. App.—Houston [1st Dist.] 1995, writ dism’d w.o.j.) (same).
-3-
04-12-00298-CV
Nor is mere notice that an accident has occurred or investigating an accident sufficient to provide
actual notice.
In 2004, the Texas Supreme Court clarified the “knowledge of alleged fault” requirement
by stating its opinion in Cathey “did not mean that the governmental unit was required to know
that the claimant had actually made an allegation of fault.” Texas Dep’t of Criminal Justice v.
Simons, 140 S.W.3d 338, 347 (Tex. 2004). Instead,
[w]hat we intended in Cathey by the second requirement . . . was that a
governmental unit have knowledge that amounts to the same notice to which it is
entitled by section 101.101(a). That includes subjective awareness of its fault, as
ultimately alleged by the claimant, in producing or contributing to the claimed
injury . . . . It is not enough that a governmental unit should have investigated an
incident . . ., or that it did investigate, perhaps as part of routine safety procedures,
or that it should have known from the investigation it conducted that it might have
been at fault. If a governmental unit is not subjectively aware of its fault, it does
not have the same incentive to gather information that the statute is designed to
provide, even when it would not be unreasonable to believe that the governmental
unit was at fault.
Id. at 347-48. “Cathey cannot fairly be read to suggest that a governmental unit has actual notice
of a claim if it could or even should have learned of its possible fault by investigating the
incident.” Id. at 347. “Governmental units would not be given notice of most incidents and
would thus have some need to investigate them all, which, as we explained in Cathey, would
defeat the purpose of the notice provision.” Id. Accordingly, “a governmental unit cannot
acquire actual notice merely by conducting an investigation, or even by obtaining information
that would reasonably suggest its culpability.” Id. at 348.
As support for her argument that GBRA received actual notice, Schneider points to (1)
“Liability/Property Claim Cover Sheets,” one of which identifies Schneider as the “claimant”
and describes the “loss” as “District Veh FYRow and OP collided w/ vehicle. Atty
Involvement”; (2) “Accident Report Forms” apparently completed by Kenda in which he writes
-4-
04-12-00298-CV
he was ticketed for “not yielding” and he identifies the other driver as Schneider; (3) a “Property
Damage Appraisers Invoice” billed to J.I. Specialty Services for “auto physical damage”; and (4)
an “Injury/Illness Report Form” completed by Kenda. The two “Liability/Property Claim Cover
Sheets” contain the names and contact information of Kenda and Schneider, but do not mention
any injuries to Schneider or damage to her vehicle. The two “Accident Report Forms”
completed by Kenda states he was ticketed for “not yielding” and that he “was pulling out from
Nolte Park Road and was to[o] far in driving [unreadable] and the other car hit me.” The forms
contain contact information for both Kenda and Schneider and indicate the damage to her vehicle
was “minimal.” A column entitled “Injured Individuals” contains Schneider’s name but “Extent
of Injury” is blank. However, the bottom of one of the forms contains, in a different
handwriting, the following notation: “EMS Hosp. Dr Morrow – [unreadable] neck, back,
shoulder.”
The “Property Damage Appraisers Invoice” and forms related to the rental of a vehicle
indicate “auto physical damage” and “Type of Loss” as “Collision.” No information about the
nature of the collision or who caused it is contained within any of the forms related to the repair
of Schneider’s vehicle. The “Injury/Illness Report Form” relates only to any injury or illness on
Kenda’s part and does not state any information about Schneider. Kenda was not injured, and
the section of the form regarding how or why any injury/illness occurred states: “Employee
pulling out of entrance road and onto FM 466. GBRA vehicle struck and [sic] on-coming car
traveling on FM 466.” Finally, the GBRA “Investigation Report” states the “Problem” was a
“Truck Accident” and the “Cause” as “Did not see car.” The report also listed “Corrective
Actions” as “look more than once,” “use caution when entering roadway,” and “continue looking
when entering roadway.” Nothing related to Schneider is mentioned within the report.
-5-
04-12-00298-CV
On appeal, GBRA asserts none of these documents demonstrates any knowledge by
GBRA of any specific injury Schneider claimed as a result of the accident or GBRA’s fault. We
disagree. In City of Wichita Falls v. Jenkins, the appellate court held that a letter that merely
stated appellees sustained “personal injuries and other damages” in the accident was sufficient
formal notice under section 101.101(a)). 307 S.W.3d 854, 860-61 (Tex. App.—Fort Worth
2010, pet. denied). However, the court also held that even if the letter was not sufficient
statutory notice, the evidence supported the conclusion that the City had actual notice of
appellees’ claims because the police officer’s crash report listed the driver’s driver’s license
number and address, and noted property damage to vehicles of at least $1,000; and the police
report provided a detailed description of the incident and contained the names of each occupant
of the driver’s vehicle. Id. at 861. “Thus, on the date of the accident, a City representative had
notice that a City-owned vehicle was at fault in an accident that caused at least $1,000 of vehicle
damage and also knew the identities of all the persons involved in the accident.” Id. “This, too,
meets the purpose of the notice requirement of the statute to put the City on notice to investigate,
settle, and prepare for trial.” Id. “That the occupants did not appear to be injured and drove
away from the accident, although possibly relevant for trial purposes (subject to an evidentiary
determination by the trial judge), does not negate the City’s notice that an on-duty officer driving
a City-owned vehicle rear-ended the car in front of him, causing visible property damage.” Id.
Here, the November 16, 2009 letter and the various records include information about (1)
the time, date, place, and circumstances of the accident, (2) that Kenda’s failure to yield was a
contributing factor in the accident, (3) the identity of the parties, (4) that Schneider’s vehicle was
damaged, and (5) that Schneider possibly suffered physical injuries. We conclude the letter and
the records are sufficient to raise a fact issue on whether GBRA had actual knowledge to enable
-6-
04-12-00298-CV
it to gather information necessary to guard against unfounded claims, settle claims, and prepare
for trial.
GBRA also asserts that, the information in the documents aside, there is no evidence a
GBRA employee with a duty to investigate had subjective awareness that the fault of a GBRA
employee was a producing or contributing cause of injury or property damage. GBRA relies on
the affidavit of William E. West, Jr., in which West stated GBRA was not subjectively aware of
any claims or its alleged liability for Schneider’s alleged injuries until January 26, 2011, when
Schneider’s attorney sent a second, more detailed letter. West claimed Kenda had no duty to
investigate, gather facts, or report any claims or accidents to GBRA.
If an agent or representative receives notice of the incident and had a duty to gather facts
and report, actual notice can be imputed to the governmental entity. Univ. of Tex. Health Sci.
Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 339 (Tex. App.—San Antonio 2010, no pet.).
But, actual notice is not limited to a particular official or employee of a government entity, such
as a director of risk management. Id. “As a practical matter, a governmental entity cannot put
on metaphorical blinders and designate only one person in its entire organization through whom
actual notice may be imputed when the facts support that there are other representatives who
have a duty to gather facts and investigate on behalf of the governmental entity.” Id. at 339-40.
As mentioned above, the Texas Water Conservation Association Risk Management Fund
handles claims for GBRA, which “is a Self-Insured Governmental Entity.” The November 18,
2009, letter from the Fund to Schneider’s attorney is signed by Velvet C. Dixon. Ms. Dixon’s
name is on the Property Damage Appraisers Invoice and Report, where she is identified as the
“adjuster.” The Accident Report Forms are the forms used by the Fund and identify Jeannine
Herrmann as the contact person. Ms. Herrmann’s name is also on the Liability/Property Claim
-7-
04-12-00298-CV
Cover Sheets. The Accident Report Forms, which instruct drivers to keep the form in the glove
box and use in case of an accident, contain the following instruction: “Submit the completed
form to the individual in your center who is responsible for monitoring and reporting accidents to
the Fund.” We conclude these forms raise a fact issue on whether the Fund is an agent of GBRA
and whether the Fund’s notice of the accident and duty to gather facts and report impute actual
notice to GBRA.
CONCLUSION
We conclude there is sufficient evidence to raise a fact issue regarding actual notice;
therefore, the trial court did not err in denying GBRA’s plea to the jurisdiction. 1 Accordingly,
we affirm the trial court’s order denying GBRA’s plea to the jurisdiction and remand for further
proceedings.
Sandee Bryan Marion, Justice
1
Because the issue of actual notice is dispositive, we do not reach the issue of formal written notice. See TEX. R.
APP. P. 47.1; see also Stevens, 330 S.W.3d at 341 (holding same).
-8-