Cruse v. Board of County Commissioners

1995 OK 143, 910 P.2d 998, 66 O.B.A.J. 4005, 1995 Okla. LEXIS 164, 1995 WL 747964

• Court: Supreme Court of Oklahoma
• Decided: December 19, 1995
• Docket: 81733
• Status: Published

Opinions

ALMA WILSON, Chief Justice:

The issue presented is whether a timely filed governmental tort claims action may be refiled pursuant to 12 O.S.1991, § 100. We hold that 12 O.S.1991, § 100 operates to allow the refiling of a timely-filed governmental tort claims action within one year from the date the governmental tort claims action failed other than on its merits. We further find that this case must be remanded for the district court to determine whether the action is barred by 51 O.S.1991, § 155(8).

On May 6, 1990, the appellant, Harry Cruse, drove his automobile into a washout on a county road in Atoka County, Oklahoma, resulting in personal and property injury. On May 15, 1990, the appellants (Cruse) mailed a notice of claim for damages arising out of the May 6th incident to the Board of County Commissioners of Atoka County (Board). The notice was received by the Atoka County Clerk on May 16, 1990. The Board did not act upon the claim and it was deemed denied on August 14,1990.

On January 10, 1991, Cruse timely filed a governmental tort claims action in the district court of Atoka County against the Board, alleging that the Board failed to adequately: 1) maintain the road, 2) manage the drainage around the road, 3) discover the washout area, and 4) warn drivers of the washout. In its answer, the Board denied the negligence allegations and alleged that any defect in the county road was due to weather conditions for which the Board is not liable pursuant to 51 O.S.1991, § 155(8). On February 18, 1992, the Board filed a motion for summary judgment asserting sovereign immunity pursuant to the exemption in § 155(8). On March 4,1992, prior to a ruling on summary judgment Cruse dismissed the action without prejudice to refiling.

On January 19, 1993, Cruse refiled the governmental tort claims action against the Board in the district court of Atoka County. The Board filed a motion to dismiss contending that 12 O.S.1991, § 100 does not apply to a governmental tort claims action to allow refiling of the action after the expiration of the 180-day time period specified in 51 O.S. 1991, § 157(B). The district court dismissed the action. The Court of Appeals affirmed the dismissal, relying upon 51 O.S.1991, §§ 157 and 170 and Johns v. Wynnewood School Board of Education, 656 P.2d 248 (Okla.1982). We previously granted certiora-ri.

Cruse contends that the right to maintain this action was preserved upon timely compliance with the provisions of 51 O.S.1991, §§ 156 and 157; that 51 O.S.1991, § 164 expressly subjects a timely-filed governmental tort claims actions to all Oklahoma civil procedure law; and, the Governmental Tort Claims Act does not expressly preclude application of 12 O.S.1991, § 100 to allow refiling. The Board contends that the trial court lacked subject matter jurisdiction because the refiled action was not filed within 180 days after the claim was deemed denied under § 157; that the Governmental Tort Claims Act creates the right to file an action and the 180-day time limitation is a condition upon that right; and, that failure to fulfill the condition extinguishes the right.¹

Title 12 O.S.1991, § 100 operates to allow the refiling of common law² and statutory actions.³ 12 O.S.1991, § 100, provides:

If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.

Prior to enactment of the Governmental Tort Claims Act,⁴ § 100 operated to allow the refiling of an action against a governmental entity outside the applicable time limitation. In Valley Vista Development Corporation, Inc. v. City of Broken Arrow,5 this Court determined that § 100 operated to allow the refiling of a contract action against a municipality. The original action had failed because the plaintiff did not present evidence relating to the city’s budget and debt limitations as required by statute to vest the court with authority to render a money judgment against the municipality. Valley Vista concluded that the failure of an action because the court lacked authority to render a judgment against a municipality constituted a failure otherwise than on the merits within the unambiguous provisions of § 100.⁶ In Herwig v. City of Guthrie,⁷ the Court held that § 100 operates to allow the refiling of a nuisance case against the municipality, where the timely-filed action was dismissed without prejudice and refiled after the initial statute of limitations had expired. In City of Tulsa v. Myrick,⁸ § 100 operated to allow the refiling of an action to recover damages suffered when the plaintiff fell into an excavation in one of the city streets.

The remedial nature and liberal application of § 100⁹ was part of our law when the Political Subdivision Tort Claims Act was enacted.¹⁰ Section 14 of the Political Subdivision Tort Claims Act, provided that the laws and statutes of the State of Oklahoma shall apply and govern all actions brought under the act to the extent that the laws are not inconsistent with the provisions of the act.¹¹ A plain reading of § 14, codified at § 164, is that § 100, would apply to a tort action against a political subdivision.¹² Application of § 100 to tort actions against a political subdivision is supported by the reasoning in Conway v. Ohio Casualty Insurance Company,13 finding that § 164 is authority for application of 12 O.S.1981, § 323.¹⁴

The Political Subdivision Tort Claims Act was amended and became the Governmental Tort Claims Act.¹⁵ Unchanged, 51 O.S.Supp. 1978, § 164, was left intact as a part of the Governmental Tort Claims Act. There were no provisions in the Political Subdivision Tort Claims Act, nor are there any in the Governmental Tort Claims Act, which expressly proscribe application of § 100 to a governmental tort claims action. Accordingly, § 100 is applicable to a governmental tort claims actions unless its application is inconsistent with our construction of the Governmental Tort Claims Act.

When this Court repudiated the common law doctrine of sovereign immunity as a bar to governmental tort claims effective as to claims or causes of action accruing after 12:01 a.m., October 1, 1985,¹⁶ the Legislature enacted the Governmental Tort Claims Act.¹⁷ The Governmental Tort Claims Act adopted the common law doctrine of sovereign immunity and then partially waived the immunity, providing: first, “The State of Oklahoma does hereby adopt the doctrine of sovereign immunityO”¹⁸ and then, “The state, only to the extent and in the manner provided in this act, waives its immunity and that of its political subdivisions.”¹⁹ The doctrine of sovereign immunity embodied the “concept that the courts were a part of government and could not be used to enforce claims against the government without the express permission of the government."²⁰ The Governmental Tort Claims Act expressly withholds consent to judicial enforcement of tort claims against the government, state or local, and then expressly consents to judicial enforcement of tort claims “to the extent and in the manner provided.”²¹

The extent to which a tort claim may be judicially enforced against the government is prescribed in various sections such as § 154 limiting the amount of governmental liability and removing the government from joint liability. The manner in which a party may overcome sovereign immunity and maintain an action against the government is narrowly structured²² by the procedural prerequisites in §§ 156 and 157. The pertinent provisions of 51 O.S.1991, § 156 provide:

A. Any person having a claim against the state or a political subdivision within the scope of this act shall present a claim to the state or political subdivision for any appropriate relief including the award of money damages.

B. Claims against the state or a political subdivision are to be presented within ninety (90) days of the date the loss occurs. In the event a claim is presented following ninety (90) days after the loss occurs, but within one (1) year after the loss occurs, any judgment in a lawsuit arising from the act which is the subject of the claim shall be reduced by ten percent (10%). A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.

C. A claim against the state shall be in writing ...

D. A claim against a political subdivision shall be in writing ...

E. ... The time for giving written notice of claim pursuant to the provisions of this section does not include the time during which the person injured is unable due to incapacitation from the injury to give notice, not exceeding ninety (90) days of incapacity.

51 O.S.1991, § 157 provides:

A. A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the interested parties have reached a settlement before the expiration of that period. A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. The claimant and the state or political subdivision may continue attempts to settle a claim, however, settlement negotiations do not extend the date of denial.

B. No action for any cause arising under this Act, Section 151 et seq. of this title, shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section. Neither the claimant nor the state or political subdivision may extend the time to commence an action by continuing to attempt settlement of the claim.

Whether § 100 applies to save Cruse’s refiled action rests on our analysis of §§ 156 and 157, specifically the 180-day time limitation on commencement of an action.²³ Facially these statutes delineate time-limited prerequisites to judicial enforcement of a tort claim against the government.²⁴ The procedure spans a two-year time frame. Beginning with the date of loss, the two-year time consists of intervals for incapacitation (ninety days), filing of notice of claim (one year), denial of claim (ninety days), and filing of an action (one hundred and eighty days). Upon compliance with the time-limited procedural steps in §§ 156 and 157, the state’s consent to be sued is manifest, the sovereign immunity bar is removed, and a judicial remedy for enforcement of the tort claim against the state or political subdivision may be maintained.

The language in § 156 clearly expresses intent that the one-year limitation for filing the written notice of claim operates as an absolute bar to the claim.²⁵ Similar language in the Political Subdivision Tort Claims Act has been determined, on its face, to absolutely bar a claim. In Johns v. Wynnewood School Board of Education,²⁶ written notice of the claim was presented to the school nearly two years after the minor plaintiff was injured. Relying upon the language in § 156 that a claim shall be forever barred unless notice thereof is presented within one hundred and twenty days after the loss occurs and the language excluding a period of ninety days during which the party is incapacitated as a result of the injury, Johns held that the provisions of 12 O.S.1981, § 96 do not apply to extend the time to give notice of claim on behalf of a minor under the Political Subdivision Tort Claims Act.²⁷ In the instant case, the district court and the Court of Appeals substituted the 180-day time period for commencement of action for the 120-day time period for giving notice of claim in the 1978 version of § 156 and thus determined that Johns is controlling authority. The language in § 157, however, differs significantly from the language in § 156, hence we do not find Johns to be dispositive.

In the absence of a clear expression that failure to comply with a statutory requirement forever bars the tort claim as in Johns, the time limitations prescribed by §§ 156 and 157 have been construed so as to accomplish the statutory purpose. Trent v. Board of County Commissioners of Johnston County, ²⁸ concluded that the 90-day period for a political subdivision to deny a claim prevents needless delay for the benefit of the injured claimant and held that actual notice of the denial of a claim to claimant’s attorney triggers the running of the 180-day time for commencement of suit. In Whitley v. Oologah Independent School District No. I-4 of Rogers County,29 the 90-day period for the school district to deny the claim was deemed tolled by settlement negotiations and therefore the 180-day period for commencing an action was not triggered.³⁰

Upon consideration of the various versions of the statutes and our attendant decisional law, the purpose of the 180 days to commence an action within the two-year time period delineated in §§ 156 and 157 is apparent. It preserves to the government the two-year time limitation on tort actions against private persons. Section 156 provides that an action shall not be maintained unless commenced within one hundred eighty (180) days after valid notice has been given (1 year plus 90 days for incapacity) and denial of the claim (90 days). The general statute of limitations on torts provides that an action can only be brought within two years “after the cause of action shall have accrued and not afterwardsQ” The two-year statute of limitations on tort actions against private persons is mirrored by the two-year time period prescribed in §§ 156 and 157, imposing the same time limitation upon the commencement of public torts as is imposed upon the commencement of private torts.³¹

The general statute of limitations on torts operates to bar the remedy rather than to extinguish the substantive cause.³² The Board contends that the 180-day time limit attaches to the right to bring a governmental tort claims action and becomes an element of the claim; and, failure to meet the time 180-day time limit extinguishes the claim.³³ By the terms of § 156(B), the 180-day time limit regulates the time to bring a governmental tort claims action to which the Legislature has given its consent. That is, failure to meet the 180-day time limit operates to bar judicial enforcement of a claim against the government.³⁴ This construction achieves the purpose of the two-year time frame in §§ 156 and 157. Upon compliance with the time-limited filing of written notice of claim and denial of claim in §§ 156 and 157, the state’s consent to be sued is manifest and the court may exercise judicial power to remedy the alleged tortious wrong by the government. The 180-day limitation on commencement of an action in § 157 operates to bar judicial enforcement to which the Legislature waived sovereign immunity.

The Legislature could have forbidden the application of 12 O.S.1991, § 100 to the refiling of a timely-filed governmental tort claims act, but it did not. Reading the Governmental Tort Claims Act in its entirety,³⁵ we conclude that where valid notice has been given and the governmental tort claims action has been timely filed under § 157, the court’s power is invoked and, at that point, pursuant to the broad terms of 51 O.S.991, § 164, the governmental tort claims action is controlled by the laws of this state, including 12 O.S. 1991, § 100.

Section 100 permits the refiling of a governmental tort claims action only where the court’s power has been invoked by the original action. The pleadings in the original action raise a serious question as to the court’s power to enforce Cruse’s claim— whether this action is exempted from the waiver of sovereign immunity bar by 51 O.S. 1991, § 155(8).³⁶ Because resolution of this question may require factual findings, it must be determined by the court of first instance. Accordingly, this cause is remanded for further proceedings consistent with this opinion.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS.

KAUGER, V.C.J., and HODGES, SUMMERS and WATT, JJ., concur. LAVENDER, SIMMS, HARGRAVE and OPALA, JJ., dissent.

1 . Few states have addressed the issue of whether a governmental tort claims action may be refiled pursuant to a statute similar to 12 O.S.1991, § 100. Ohio and Wisconsin have answered in the affirmative. Reese v. Ohio State University Hospitals, 6 Ohio St.3d 162, 451 N.E.2d 1196 (1983); and, Colby v. Columbia County, 192 Wis.2d 397, 531 N.W.2d 404 (1995). Tennessee has answered in the negative. Eason v. Memphis Light, Gas & Water Division of the City of Memphis, 866 S.W.2d 952 (Tenn.App.1993).

2 . Pinson v. Robertson, 197 Okla. 419, 172 P.2d 625 (1946).

3 . Amsden v. Johnson, 74 Okla. 295, 158 P. 1148 (1916), an action to enforce a mechanic’s lien; and, Rock Island Mining Co. v. Allen, 106 Okla. 188, 233 P. 1060 (1924), a wrongful death action.

4 . §§ 151, et seq. of Title 51 of the Oklahoma Statutes.

5 . 766 P.2d 344 (Okla.1988).

6 . See, Ross v. Kelsey Hayes, Inc., 825 P.2d 1273, 1277 (Okla.1991), which concluded that "The language of § 100 is unambiguous in stating the actions to which it applies — ‘any action commenced within due time.’ ”

7 . 182 Okla. 599, 78 P.2d 793 (1938).

8 . 184 Okla. 229, 86 P.2d 623 (1939).

9 . In Valley Vista Development Corporation, Inc. v. City of Broken Arrow, 766 P.2d at 349 (Okla.1988), we said whether referred to as a savings provision, renewal statute, or recommencement provision, the purpose of 12 O.S.1981, § 100 is to avoid the harsh results flowing from the general rule that where an action failed and the statute of limitations had expired during the interim, any subsequent action was untimely; therefore it is a remedial statute and it provisions are to be liberally applied.

10 . 1978 Okla.Sess.Laws, ch. 203.

11 . 1978 Okla.Sess.Laws, ch. 203, § 14, now codified at 51 O.S.991, § 164, reads:

The laws and statutes of the State of Oklahoma and the Rules of Civil Procedure, as promulgated and adopted by the Supreme Court of Oklahoma insofar as applicable and to the extent that such rules are not inconsistent with the provisions of this act, shall apply to and govern all actions brought under the provisions of this act.

12 . The words of a statute will be given a plain and ordinary meaning, unless contrary to the purpose and intent of the statute when considered as a whole. Keck v. Oklahoma Tax Commission, 188 Okla. 257, 108 P.2d 162 (1941).

13 . 669 P.2d 766, 768 (Okla.1983).

14 . 12 O.S.1981, § 323, prohibits the joinder of liability insurers as a party to a tort action.

15 . 1984 Okla.Sess.Laws, ch. 226.

16 . Vanderpool v. State of Oklahoma, 672 P.2d 1153 (Okla.1983).

17 . 1984 Okla.Sess.Laws, ch. 226, effective October 1, 1985.

18 . 1984 Okla.Sess.Laws, ch. 226, § 3, codified at 51 O.S.1991, § 152.1(A).

19 . 1984 Okla.Sess.Laws, ch. 226, § 3, codified at 51 O.S.1991, § 152.1(B).

20 . Vanderpool v. State, 672 P.2d at 1154.

21 . Although the Legislature consented to the filing of certain tort actions against Oklahoma’s political subdivisions in the Political Subdivision Tort Claims Act, that act did not codify the common law doctrine of sovereign immunity.

22 . Jarvis v. City of Stillwater, 732 P.2d 470, 473 (Okla.1987).

23 . The cardinal rule of statutory construction is to ascertain and give effect to legislative intent. Humphrey v. Denney, 757 P.2d 833 (Okla.1988).

24 . Gurley v. Memorial Hospital of Guymon, 770 P.2d 573, 576 (Okla.1989), recognized the notice of claim as a condition precedent to suit against a political subdivision or a jurisdictional prerequisite to judicial intervention and held that the purchase of liability insurance by a political subdivision can not dispense with the notice of claim requirement.

25 . In 1992, § 156(B) was amended. 1992 Okla. Sess.Laws, ch. 285, § 4. The Legislature deleted the provision requiring ten percent reduction in the amount of judgment where notice of claim was filed after ninety days after the loss occurred but within one year from the date of loss. Section 156(B) now reads:

B. Claims against the state or a political subdivision are to be presented within one (1) year of the date the loss occurs. A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs. See, Mansell v. City of Lawton, 901 P.2d 826 (Okla.1995).

26 . 656 P.2d 248, 249-250 (Okla.1982).

27 . Johns concerned 51 O.S.Supp.1978, § 156(B), which read:

B. A claim against a political subdivision or employee shall be forever barred unless notice thereof is filed with the clerk of the governing body of the political subdivision within one hundred twenty (120) days after the loss occurs.

28 . 755 P.2d 615 (Okla.1988).

29 . 741 P.2d 455 (Okla.1987).

30 . In Whitley, the injury occurred on June 18, 1982; the superintendent of the school district was notified of the claim on July 13, 1982; settlement negotiations with the insurer proceeded, when suit was filed on July 7, 1983. Subsequently, the Legislature amended § 157 expressly providing that settlement negotiations do not extend the time for commencement of an action. 1988 Okla.Sess.Laws, ch. 241, § 5. Most recently, the Legislature has authorized the parties to extend the 90-day time for denial of the claim by written agreement. 1995 Okla.Sess.Laws, ch. 121, § 1, effective November 1, 1995. See, footnote 31, infra.

31 .Legislative intent to impose the same time restraints upon tort actions against the government as the general statute of limitations is apparent in the most recent amendment to § 157. 1995 Okla.Sess.Laws, ch. 121, § 1, effective November 1, 1995, reads:

A. A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. A claim is deemed denied is the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the state or political subdivision has denied the claim or reached a settlement with the claimant before the expiration of that period. If the state or a political subdivision approves or denies the claim in ninety (90) days or less, the state or political subdivision shall give notice within five (5) days of such action to the claimant at the address listed in the claim. If the state or political subdivision fails to give the notice required by this subsection, the period for commencement of an action in subsection B of this section shall not begin until the expiration of the ninety-day period for approval. The claimant and the state or political subdivision may continue attempts to settle a claim, however, settlement negotiations do not extend the date of denial unless agreed to in writing by the claimant and the state or political subdivision.

B. No action for any cause arising under this act. Section 151 et seq. of this title, shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section. The claimant and the state or political subdivision may agree in writing to extend the time to commence an action for the purpose of continuing to attempt settlement of the claim except no such extension shall be for longer than two (2) years from the date of the loss.

(Emphasis added.)

Our comparison of the two-year time frame in §§ 156 and 157 with the general two-year time limitation on tort actions has aided in determining the nature of the involved 180-day limitation, but it does not obviate the time limitations imposed upon the notice of claim and denial of claim requirements in §§ 156 and 157.

32 . Estate of Speake, 743 P.2d 648, 652 (Okla.1987), explains that an ordinary statute of limitation regulates the time for bringing the action and that it bars the remedy not the substantive cause or claim, unless the prescribed time is so specifically attached to the substantive claim that it must be construed as an element of the claim.

33 . Estate of Speake, 743 P.2d at 652.

34 . The dissent reads the Governmental Tort Claims Act as creating a substantive "right of action" and a substantive time limit on the newly-created right of action. Our extant decisional law defines “right of action" as pertaining to the remedy, rather than pertaining to the substantive law and distinctly separates the remedial “right of action" from the substantive "cause of action.” Landry v. Acme Flour Mills Co., 202 Okla. 170, 211 P.2d 512, 515 (1949). Accord, State ex rel, Southwestern Bell Telephone Company v. Brown, 519 P.2d 491, footnote 1 at 497 (Okla.1974), wherein this Court recognized that "right of action” and "cause of action" are often interchanged and then explained that "right of action” pertains to the remedy and relief through judicial proceedings for satisfaction of a “cause of action.” See also, Rock Island Mining Co. v. Allen, 106 Okla. 188, 233 P. 1060 (1924), wherein the Court determined that § 100 applies to a wrongful death action that was originally filed within the two-year limitation in the statute creating the wrongful death cause of action.

35 . The provisions of a statute should be construed in light of the entire legislative act TRW/Reda Pump v. Brewington, 829 P.2d 15, 20 (Okla.1992).

36 . Jurisdictional inquiries may be made by the courts at any stage of the proceedings. Cate v. Archon Oil Co., 695 P.2d 1352 (Okla.1985).