Massa, J.
After he was injured in an automobile accident, John Schoettmer cooperated with the other driver’s insurer in hopes of settling his claim. Nearly a year later, when settlement proved elusive, he hired a lawyer and filed suit. Only then did he learn that the other driver was employed by a political subdivision subject to the Indiana Tort Claims Act. Schoettmer cited several reasons to excuse his failure to comply with the notice requirements of that Act, including waiver, substantial compliance, agency, and estoppel. We find the first three unavailing, but conclude he should be permitted to present proof of estoppel to the trial court, and we reverse and remand on that basis.
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IV. Genuine Issues of Material Fact Remain as to Whether South Central Should Be Estopped from Asserting Its ITCA Notice Defense.
Finally, the Schoettmers argue equitable estoppel should apply to bar South Central from raising its ITCA notice defense because the Schoettmers were unaware South Central was a government entity covered by the ITCA. The trial court found this argument failed as a matter of law. We believe that conclusion is premature.
“The party claiming equitable estoppel must show its ‘(1) lack of knowledge and of the means of knowledge as to the facts in question, (2) reliance upon the conduct of the party estopped, and (3) action based thereon of such a character as to change his position prejudicially.’” Story Bed & Breakfast, LLP v. Brown Cnty. Area Plan Comm’n, 819 N.E.2d 55, 67 (Ind. 2004) (quoting City of Crown Point v. Lake Cnty., 510 N.E.2d 684, 687 (Ind. 1987)). Equitable estoppel will not apply against the State unless there is “clear evidence that its agents made representations upon which the party asserting estoppel relied.” Id. The burden to produce that evidence rests upon the party claiming estoppel. Id.
Here, the Schoettmers have presented evidence that they did not know South Central was a statutorily designated community action program and thus a political subdivision subject to the ITCA until South Central asserted its ITCA notice defense in its amended complaint. John Schoettmer executed an affidavit stating neither the Cincinnati Insurance agent nor the defendants ever gave him any reason to believe South Central was covered by the ITCA and his claim might be time-barred unless he complied with its notice requirements. Neither the written correspondence Schoettmer received from Cincinnati Insurance nor the telephone conversations he had with its agent contain any mention of the ITCA or the 180-day time limit.
There is also evidence that Schoettmer relied on the agent’s conduct and representations. Schoettmer’s affidavit states that on at least two occasions, the agent told him it would be in his best interest to wait until all his medical treatments were complete before settling his claim. The agent’s notes from her February 2, 2009, telephone conversation with Schoettmer corroborate the affidavit; she noted she told Schoettmer “it would be in his best interest to wait until he is released from treatment” to settle his claim. Appellants’ App. at 78.
Finally, there is evidence that Schoettmer failed to act because of his reliance on the Cincinnati Insurance agent’s representations. He worked with the agent; he provided a recorded statement on January 12, 2009 and signed a release providing her access to his medical records and bills on April 22, 2009. Nevertheless, he did not receive a settlement offer until August 20, 2009—nearly three months after the 180-day ITCA time limit had expired. Thus, we are inclined to agree with Judge Crone that “the designated evidence reveals that genuine issues of material fact remain, and the Schoettmers should be allowed to present proof of estoppel to the trial court.” Schoettmer, 971 N.E.2d at 127 (Crone, J., dissenting) (citing Delaware Cnty. v. Powell, 272 Ind. 82, 85, 393 N.E.2d 190, 192 (1979)).
Conclusion
We therefore reverse the trial court’s grant of summary judgment in the defendants’ favor as to the adequacy of the Schoettmers’ tort claim notice and remand this case for further proceedings consistent with our opinion.
Dickson, C.J., Rucker, David, and Rush, JJ., concur.