Cursory investigation does not equate to awareness of fault and mailbox rule does not apply to TTCA notice provision says 13th Court of Appeals

Texas Department of State Health Services v. Laura Gonzalez, 13-14-00259-CV (Tex. App. – Corpus Christi, December 18, 2014)

This is a Texas Tort Claims Act (“TTCA”) motor vehicle accident case where the Thirteenth Court of Appeals reversed the denial of a plea to the jurisdiction and rendered judgment for Texas Department of State Health Services (“DSHS”).

Gonzalez was in a four car pile-up.  A car driven by Pena hit a concrete barrier in front of Gonzalez who hit her brakes to stop.  Three cars behind her, a car driven by Olivarez collided with the car driven by a DSHS employee, Ramos, who was pushed into a car driven by Morales, who then collided with Gonzalez. Gonzalez sued everyone involved. DSHS filed a plea to the jurisdiction asserting Gonzalez failed to provide notice of DSHS’ fault and the accident was not proximately caused by the use of a motor vehicle by DSHS employee Ramos. The accident report by police indicated no fault on the part of Ramos and no actual notice was provided that Ramos was at fault. The trial court denied the plea and DSHS appealed.

The court first noted that Gonzalez missed the six month notice deadline under Tex. Civ. Prac. & Rem. Code §101.101 by two days and that the “mailbox rule” does not apply to save her. The statute expressly states the entity must “receive” notice within six months, not that it be sent within that time.  Further the “mailbox rule” only applies to court filings and service of process.  Since the notice is not filed with the court, the rule does not apply. Section 101.101 does state that written notice within six months is not necessary if the entity had actual notice of its fault. However, merely investigating an accident does not provide actual notice of a subjective awareness of fault. The police report nor any information submitted to DSHS after the accident indicated Ramos was at fault in any respect.  Gonzalez presented no evidence to create a fact issue that DSHS had a subjective awareness of its possible fault for her injuries. Even the fact Ramos took photos of the accident shows only a “cursory investigation” of the accident, not an awareness of fault. As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel: Justice Rodriguez, Justice Benavides and Justice Perkes. Memorandum Opinion by Justice Rodriguez.  The attorneys listed for Gonzalez are Javier Villarreal and Daniel A. Torres.  The attorney listed for DSHS is Elsa Giron Nava.