Brock v. Nyland

955 P.2d 1037, 98 Colo. J. C.A.R. 1725, 1998 Colo. LEXIS 316, 1998 WL 175861

• Court: Supreme Court of Colorado
• Decided: April 13, 1998
• Docket: 96SC582
• Status: Published

Opinions

Justice SCOTT

delivered the Opinion of the Court.

In this case, we must decide whether the filing of notice with the claims department of the Regional Transportation District (RTD) satisfies the statutory requirement that “notice shall be filed with the governing body of the public entity or the attorney representing the public entity” as set forth in section 24-10-109(3), 7 C.R.S. (1997). Relying on the plain language of the statute, we conclude that it does not.

Our order granting certiorari in Nyland v. Brock, 937 P.2d 806 (Colo.App.1996) set forth several issues and requires that we decide “[wjhether the court of appeals erred in holding that‘a claimant need only substantially comply with the section 24-10-109(3), 10A C.R.S. (1996 Supp.), requirement that notice be sent to the public entity’s governing body or legal counsel’ ” By our judgment today, we reject the court of appeals’ reliance upon a substantial compliance standard and reverse.¹ Instead, we hold that section 24-10-109(3) requires filing with “the governing board” or “the attorney” and by its plain language does not contemplate compliance otherwise.

I.

A.

The facts of this legal dispute are not in question. On March 23, 1993, while crossing the intersection of 11th Avenue and Peoria Street, respondent Travis Nyland, then of Norfolk, Nebraska, was struck and injured by a bus operated by petitioner RTD.² Shortly thereafter, Nyland retained the services of an attorney to seek personal injury payment (PIP) benefits and, in addition, to pursue this negligence action. On April 5, 1993, Nyland’s attorney sent a letter to Ar-monde Hainesworth of the claims department of RTD (claims department) providing notice that he represented Nyland for “both the liability and PIP issues” related to the accident. Further correspondence indicated that Nyland was seeking payment of medical expenses pursuant to the no-fault insurance provisions of the Colorado Accident Reparations Act, §§ 1CM-701 to -725, 3 C.R.S. (1997).

Through his attorney, Nyland sent a total of five letters to the RTD claims department from April through June 1993. Among other things, the letters provided the following , information; (1) that the attorney represented Nyland; (2) the address and telephone numbers for Nyland and his attorney; (3) a completed accident questionnaire with the time, place, and a description of the accident; (4) a description of Nyland’s injuries; and (5) the amount of Nyland’s claim for medical expenses and reimbursement for lost income. The letters described Nyland’s injuries in detail, included medical records, and supplied information to support his lost wages claim.

The RTD claims adjuster replied to the letters in the normal course of his assigned duties at RTD,³ which included requesting “documentation to support the extent of treatment for Mr. Nyland.” The various letters, including five from Nyland’s attorney, never mentioned litigation or court proceedings, anticipated or otherwise. Instead, the correspondence focused upon Nyland’s injuries, treatment, and the costs of the same, as well as lost wages. The claims adjuster did not forward the letters nor any information regarding Nyland’s claims to the RTD governing board or its attorney, instead treating the matter as he did other PIP and related claims.⁴

In any event, RTD paid Nyland’s medical expenses and PIP benefits, reimbursing him for certain medical costs related to his injuries. However, RTD did not pay Nyland’s claim for pain and suffering, lost wages, future medical expenses, and future income, all of which he seeks through this litigation.

B.

On December 15, 1993 (267 days after the injury), Nyland’s attorney filed a notice of claim with RTD’s attorney and its governing body. On December 30, 1994, Nyland filed this action against RTD in the Denver District Court (trial court). The complaint alleged permanent disability, physical pain and suffering, future medical treatment, past and future pain and anguish, loss of future income, permanent disfigurement, and permanent impairment of earning capacity. These injuries were not covered by the claims set forth in the letters Nyland sent to the RTD claims adjuster.

RTD moved to dismiss the suit for failure to comply with the notice provisions of the Colorado Governmental Immunity Act (GIA), which state that written notice must be given within “one hundred eighty days after the date of the discovery of the injury,” § 24-10-109(1), 7 C.R.S. (1997), and that, “notice shall be filed with the governing body of the public entity or the attorney representing the public entity,” § 24-10-109(3).

The trial court denied the motion to dismiss, finding that “the plaintiff has substantially complied with the notice provision of C.R.S. § 24-10-109” because “[tlhe plaintiffs attorney sent five letters to the Claims Department of RTD within 180 days of the accident.” Pursuant to section 24-10-108, 7 C.R.S. (1997), RTD appealed the trial court’s order as “a final judgment ... subject to interlocutory appeal.”

The court of appeals affirmed. Relying upon Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo.1996), and Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo.1990), the court of appeals held that “a claimant need only substantially comply with the § 24-10-109(3) requirement that notice be sent to the public entity’s governing body or legal counsel.” Nyland v. Brock, 937 P.2d 806, 809 (Colo.App.1996). The court of appeals further held that “based upon the letters he sent to RTD’s claims adjuster,” Nyland had filed timely notice with the RTD governing body or its attorney. See id.

II.

Under the GIA, a person seeking recourse against a public entity, such as RTD, must notify that entity of any claims against it within 180 days of discovery of the injury. § 24-10-109. Subsection (1) of section 24-10-109 provides that any person asserting a claim under the GIA “shall file a written notice as provided in this section within one hundred eighty days after the date of the discovery of the injury.” Id. The place for filing the notice required by section 24-10-109 is set forth in subsection (3), which indicates that when a claim is against the state or an employee thereof, notice shall be filed with the attorney general. As relevant here, the statute further provides:

If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity.

§ 24-10-109(3).

The court of appeals concluded that a plaintiff only needs to achieve substantial compliance with the notice requirement of section 24-10-109(3) and, hence, may meet the notice requirement without filing notice with the governing body or attorney. We disagree, and hold that section 24-10-109(3) of the GIA, by its plain language, anticipates that a litigant against a public entity will file notice with one of two persons. Section 24-10-109(3) identifies the specific persons with whom the notice of claim must be filed. Thus, unless the claim is filed with one of those two persons, a plaintiff may not proceed to judgment against any public entity.

It is axiomatic that when interpreting a statute, we must give effect to the intent of the legislature. See Dawson v. Reider, 872 P.2d 212, 214 (Colo.1994). To discern that intent, we look to the language used by the General Assembly in the statute. If the words used are plain and unambiguous, our task is accomplished by giving effect to the commonly accepted meaning of the words used. See Regional Transp. Dist. v. Voss, 890 P.2d 663, 667 (Colo.1995).

The plain language of section 24-10-109(3) specifically and unambiguously requires that “the notice shall be filed with the governing body of the public entity or the attorney representing the public entity.” Id. (emphasis added). As the plain language is clear and unambiguous, we cannot interpret this provision to permit the filing of a notice of claim with any person or entity other than those set forth in the statute, i.e., “the governing body of the public entity or the attorney representing the public entity.” See Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo.1992). In essence, the nature or extent of compliance mandated by the statute inheres from the plain language of section 24-10-109(3).

The legislative purpose in passing section 24-10-109(3) was to recognize and insure that the “governing body” or its “attorney” be directly involved, advised, and notified of potential litigation. Consistent with this intention, the legislature used mandatory language: “the notice shall be filed with the public entity’s governing body or attorney,” as opposed to less restrictive language. The use of the term “shall” with such specifically identified persons militates against a construction that would recognize substantial compliance, a result that does not comport with the plain language. See East Lakewood Sanitation Dist. v. District Court, 842 P.2d 233, 235 (Colo.1992) (“Where the word ‘shall’ is used in a statute, it is presumed to be mandatory.”) (quoting Sargent Sch. Dist. v. Western Servs., Inc., 751 P.2d 56, 60 (Colo.1988)). While we are mindful that the term “shall” also appears in section 24-10-109(2), which we held permitted substantial compliance, see Woodsmall, 800 P.2d at 69, it is the use of the term “shall” with the specific identified persons of the section that controls our construction of subsection (3). Like the language in section 24-10-109(1), section 24-10-109(3) is definite and certain, whereas the language in section 24-10-109(2) is not. For example, in section 24-10-109(1), the filing “shall” occur “within one hundred eighty days.” The definite nature of the period makes it unquestionable that a claimant can make a factual decision to comply, and a court can then determine whether a filing is within that time period. Similarly, whether notice is filed with the “governing board” or “attorney” can likewise be readily accomplished by a litigant and the fact of such act or the failure to comply can be ascertained. To the contrary, however, section 24-10-109(2) and its requirement that “notice shall” be “[a] concise statement of the factual basis of the claim” or “[a] concise statement of the nature and the extent of the injury claimed” may not be so easily met nor are its contours precise.

In Woodsmall, 800 P.2d at 69, we concluded that compliance need only be “to the extent the claimant is reasonably able to do so.” Id. We emphasize though, that in Woodsmall, we construed section 24-10-109(2) of the GIA, which concerns the contents of the notice, holding that a claimant must substantially comply with that subsection. Our holding in Woodsmall did not address section 24-10-109(3). Consistent with that holding, we disapprove of any reading of Woodsmall that applies a substantial compliance standard to section 24-10-109(3).

The court of appeals’ interpretation of the statute in the instant case undermines the legislative intent as evinced by the plain language of the statute. Its application of a blanket standard of substantial compliance makes the statutory term “shall be filed with the governing body ... or the attorney” ineffective.

Under the facts of this ease, while sympathy may lie with the injured plaintiff, reason does not. This case may seemingly be disposed of by applying the “substantial compliance” standard. However, even applying that standard here, where there is no record of intent or colorable effort to notify the governing board or RTD’s attorney, a court should not find compliance on this record.

In any event, if we were to adopt such a substantial compliance standard, tomorrow’s plaintiffs, proceeding under facts where notice was filed with a different department, or attempted through an employee other than RTD’s attorney, will require a deft judicial pilot to navigate the shoals of such a subjective standard. Even with .such a pilot, a substantial compliance standard makes each claimant’s ride unpredictable and will lead, we are certain, to sometimes inexplicable results under the case-by-case resolution attendant with such a standard. Therefore, because the language so clearly sets forth the specific persons with whom a claimant is to file his notice, we conclude such- a case-by-case journey is not only ill-advised but simply a course we should not pursue. Following the plain command of the statute, which only permits filing in this case with one of two persons, provides relative certainty for all concerned, including our trial courts.

If we were to interpret section 24-10-109(3) broader than its plain language to permit substantial compliance so that the filing of notice with a claims adjuster in the RTD claims department has the same effect as a filing with the governing body or attorney, we are at a loss as to how thereafter we can'cabin its reach. In our view, substantial compliance cannot be applied in a manner consistent with the plain language of the statute. Without the ability to limit the persons upon whom notice may be filed, we cannot conceive of any meaningful basis to require filing in future cases only with the governing board, attorney, or the RTD claims department, and not with some other RTD departments. In fact, the result argued by Nyland, if taken to its logical conclusion, would permit the filing of notice with the personnel department or individual RTD employees such as a bus driver or other persons who do not have the duties or authority of RTD’s governing board or its legal counsel.⁵

In short, section 24-10-109(3) is clear and straightforward in its identification of the persons upon whom notice shall be filed. We are unwilling to alter or expand this policy choice made by the General Assembly beyond the designated persons with whom notice may be filed by reading into the statute language that patently is not there.

C.

Nyland, as did the court of appeals, relies, in part, upon Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo.1996). In Lopez, we concluded: “that the critical language of subsection (1), that ‘compliance with the provisions of this section shall be a jurisdictional prerequisite,’ must be interpreted to mean ‘the provisions of this [subjsection,’ i.e., subsection (1), rather than the entirety of section 24-10-109.” Id. at 1194 (emphasis added). Such reliance, however, is misplaced.

Lopez involved the question of whether violation of a prohibition on filing an action within 90 days after the notice of claim is filed, which prohibition is found in section 24-10-109(6) of the notice of claim statute, would “forever bar” the claim, pursuant to the “jurisdictional prerequisite” provision in section 24-10-109(1). We stated that forever barring claims because of premature filing, although supported by the plain language of the statute, would be “an absurd result and one that we should avoid.” Id. at 1192. After extensive review of the legislative history relating to the adoption of section 24-10-109(6) (and related amendments to section 24-10-109(5)), we concluded that the General Assembly did not intend compliance with the section 24-10-109(6) bar on premature filing of actions to be a “jurisdictional prerequisite,” where failure to comply would forever bar the action. We stated that the language in section 24-10-109(1) making “compliance with the provisions of this section” a jurisdictional prerequisite “must be the result of drafting error” and that “the word ‘section’ should read ‘subsection.’ ” Id. at 1194.

After reviewing the legislative history of the 1986 amendments to section 24-10-109, which culminated in the addition of the jurisdictional prerequisite language to subsection 24-10-109(1), we explained that most of the other provisions found in section 24-10-109 “merely spell[ed] out the details of the required notice,” including the proper party a plaintiff must notify. Lopez, 916 P.2d at 1193. We specifically noted that these other provisions were not “ ‘jurisdictional’ requirements in the usual sense of the word.” Id. Thus, we concluded that only the 180-day notice provision was meant to be a jurisdictional prerequisite rather than be accorded the status of a statutory notice requirement, failure to abide by which can give rise to an affirmative defense.

Legally, the distinction between a jurisdictional requirement and an affirmative defense is significant, albeit failure to abide by either a jurisdictional prerequisite or a statutory notice requirement can result in a bar to recovery. Specifically, a plaintiffs failure to meet the 180-day notice requirement of section 24^10-109(1) can be raised as a jurisdictional defect at any time by the defendant and can be raised sua sponte by the court because the court must determine that it has subject matter jurisdiction over a case before it exercises judicial power. See C.R.C.P. 12(h)(3); Triebelhom v. Turzanski 149 Colo. 558, 561, 370 P.2d 757, 759 (1962) (“[T]he defense of lack of jurisdiction over the subject matter can be raised at any time, even for the first time in this Court, and [ ] a trial court which in fact lacks jurisdiction over the subject matter cannot acquire jurisdiction over the subject matter even though the parties expressly or impliedly consent thereto.”). In contrast, we conclude that the failure to comply with section 24-10-109(3), which sets forth a statutory notice requirement, gives rise to an affirmative defense that must be timely raised by the defendant. See C.R.C.P. 8(e) & 12(h). Failure to comply with section 24-10-109(3), therefore, can be raised by motion under C.R.C.P. 12 or by an answer to a complaint under C.R.C.P. 12(b), otherwise it is waived. See C.R.C.P. 12(b) (“No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or with any other motion permitted under rule 12 or rule 98.”); see also C.R.C.P. 8(c) & 12(h).

Nevertheless, the fact that a statutory notice requirement is not a jurisdictional prerequisite should have no bearing on whether the notice requirement mandates substantial compliance. Here, however, as discussed above, the plain language of section 24-10-109(3) mandates more than substantial compliance by its terms. Accordingly, in light of our reasoning outlined above, we disapprove of any reading of our decision in Lopez, which involved the 180-day jurisdictional prerequisite under our GIA, to reach subsection (3).

Consistent with Lopez, we reiterate that a claimant must comply with section 24-10-109(1), and thereby give notice within 180 days. Not inconsistent with Lopez, we hold that notice must be “filed with” the persons specified in section 24-10-109(3).

Having so held, however, our inquiry continues. Here, Nyland did not deliver or file notice with the RTD board until.nine months after the accident, well in excess of the 180-day jurisdictional requirement of section 24-10-109(1). Because, however, Nyland’s five letters sent to the claims department were filed within the 180-day period, we must next decide whether those letters sent to the RTD claims department satisfy the statutory requirement that notice be “filed with the governing body ... or [its] attorney.”

III.

Nyland argues that he did comply with section 24-10-109(3) because he effectively filed his claim through the five letters sent to the RTD claims department. We differ. Because we are unable to read “claims department” into the plain language mandate that filing “shall” be with the “governing board” or “attorney representing RTD,” we disagree for the reasons set forth above. In addition, we conclude that the court of appeals, erred when it “decline[d] to follow” Bauman v. Colorado Department of Health, 857 P.2d 499 (Colo.App.1993) and Aetna Casualty & Surety Co. v. Denver School District No. 1, 787 P.2d 206 (Colo.App.1989). See Nyland, 937 P.2d at 809.

In Bauman, which involved section 24H0-109(3), Judge Jones, writing for a unanimous panel of the court of appeals, held that mailing a notice of claim to “the Department of Health, and not to the Attorney General as required by § 24-10-109(3),” did not constitute substantial compliance with section 24-10-109(3). There, Bauman mailed notice of her age discrimination claim to the Department of Health, and not to the Attorney General. Although in Bauman, the court of appeals reached the correct result by applying the “substantial compliance” standard to section 24-10-109(3), we disapprove of any application of such a standard to that section of our GIA. Nonetheless, the court of appeals reached the correct result when it found that Bauman’s erroneous filing did not comply with subsection (3). Here, by filing his notice with the RTD claims ’ department, rather than with RTD’s governing body or attorney, Nyland has not met the requirement of section 24-10-109(3).

Aetna Casualty and Surety Co., also concerning section 24-10-109(3), is illustrative as well. In that case, Aetna filed its notice with the “Risk Manager” of the Denver Public Schools. The trial court dismissed for lack of jurisdiction and the court of appeals affirmed. Judge Criswell correctly opined that Aetna’s filing with the Risk Manager did not comply with section 24-10-109(3)’s requirement that notice be filed with the public entity’s governing body or attorney. Noting that the Risk Manager also never forwarded the notice either to the members of the school board or to its counsel, the court held that Aetna had failed to establish jurisdiction. As we later made clear in Lopez and reiterate today, section 24-10-109(3) is not jurisdictional in nature. Thus, while we agree with much of the opinion in Aetna Casualty and Surety Co., we disapprove of the court of appeals’ holding to the extent that it suggests that compliance with section 24-10-109(3) is jurisdictional.⁶ Nonetheless, we do agree with that portion of Judge Criswell’s opinion holding that section 24-10-109(3) “clearly mandates that the notiee be filed either with the entity’s governing body or with its attorney.” Id. at 207.

We also agree, as explained in Aetna, that the statute does not prohibit the governing body of a public entity from appointing one or more agents to receive the statutory notice on its behalf. However, in that case, dismissal was required because Aetna had failed to offer any evidence that the Risk Manager was the School Board’s agent to receive the notice called for by section 24-10-109(3). In the present case, similarly, the claims department did not forward Nyland’s notice to either the RTD governing board or the attorney representing the RTD, until more than 180 days after discovery of the injury, well after suit was filed.

In addition, Nyland did not argue before us that the claims department was the agent for the RTD governing board or attorney to receive notice of a claim pursuant to section 24-10-109(3). Moreover, there is no factual demonstration that the RTD Board or its attorney had actual notice of the claims within the 180-day period for notification under section 24-10-109(1). We also note that Ny-land was not acting upon representations by RTD that his filing with the claims department met the notice requirements of the GIA. The absence of such claims, therefore, negates any waiver or estoppel argument. Finally, Nyland was not acting pro se and his attorney had ample opportunity during the interaction with the claims department to ascertain whether or not the claim had been forwarded to the Board or its attorney. We find no evidence in the record to support such claims here.

Because we reject Nyland’s argument that substantial compliance meets the mandate of section 24-10-109(3), we need not and do not reach the other issues raised on certiorari as to the burden of proof or the nature of substantial compliance.⁷

IV.

In sum, we hold that a plaintiff must file notice with the “governing body” of RTD or its “attorney” to comply with the place of notice requirements of section 24-10-109(3). We also hold, therefore, that where a plaintiff does not comply with section 24-10-109(3) of the GIA, the state or a public entity may assert an affirmative defense that, when properly raised pursuant to C.R.C.P. 12(b) or otherwise, may bar recovery. Moreover, we conclude that filing a claim for PIP benefits in the RTD claims department does not comply with the requirement that notice “shall be filed with the governing board” or the agency “attorney.”

Accordingly, we reverse the judgment of the court of appeals and remand this case to the court of appeals with directions that it return the case to the Denver District Court for further proceedings consistent with this opinion.

KOURLIS, J., concurs and specially concurs, and MULLARKEY, J., joins in the concurrence and special concurrence. MARTINEZ, J., dissents, and VOLLACK, C.J. and BENDER, J. join in the dissent.

1 .We granted certiorari on the following issues:

(1)Whether the court of appeals erred in holding that "a claimant need only substantially comply with the section 24-10-109(3), 10A C.R.S. (1996 Supp.), requirement that notice be sent to the public entity's governing body or legal counsel”; ■

(a) Whether the court of appeals erred in citing Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo. 1996), for the proposition that a claimant need only substantially comply with the statutory requirement that notice be sent to the public entity’s governing body or attorney;

(b) Whether the court of appeals erred in expressly declining to follow Aetna Casualty & Surety Co. v. Denver School District No. 1, 787 P.2d 206 (Colo.App. 1989);

(c) Whether the court of appeals erred in failing to recognize that in East Lakewood Sanitation District v. District Court, 842 P.2d 233 (Colo. 1992), the supreme court held that ”[t]he presence of the word 'shall' ... dictates" mandatory, strict compliance with the terms of the statute;

(2) Whether the court of appeals erred in placing on petitioners Brock and Regional Transportation District the burden to disprove substantial compliance;

(3) Whether the court of appeals erred in finding that respondent Nyland had substantially complied with the notice requirements of section 24-10-109(3), 10A C.R.S. (1988).

2 . An individual petitioner before us is Vernalee Brock, an RTD employee and the operator of the bus. For purposes of brevity, references to RTD shall include Brock.

3 . The claims adjuster was not then, nor was he ever, authorized to receive notices for the RTD governing board or its attorney.

4 . In fact, the claims adjuster ultimately forwarded information regarding the accident to the RTD governing board, but this, occurred well after the 180-day notice period under section 24-10-109(1) had expired and after the complaint was filed.

5 . Under the GIA, a governing body has authority to waive the immunity provisions of that act and allow itself to be sued, and/or to settle a claim as to which it might have a defense in law or in fact. The board’s attorney has a confidential and professional relationship to the board by which actual notice would occur.

6 . Both Bauman and Aetna predate our decision in Lopez. Thus, to the extent that those two cases characterize the notice requirement of section 24-10-109(3) as a jurisdictional prerequisite, they were overruled by Lopez. We also note that, as a consequence, we disapprove of that portion of Aetna which concludes, based on its mistaken belief that compliance with section 24-10-109(3) is jurisdictional, that "the doctrines of waiver and estoppel cannot be applied to validate a notice that does not comply with the statute.” Aetna, 787 P.2d at 207.

7 . See supra, note 1.