Hathaway v. State ex rel. Medical Research & Technical Authority

2002 OK 53, 49 P.3d 740, 73 O.B.A.J. 1853, 2002 Okla. LEXIS 70, 2002 WL 1359712

• Court: Supreme Court of Oklahoma
• Decided: June 18, 2002
• Docket: No. 96,272
• Status: Published

Opinions

BOUDREAU, Justice.

¶ 1 This is an appeal from an order granting summary judgment in favor of the State in a governmental tort claims action. The issue presented is whether the trial court correctly granted summary judgment because Eric W. Hathaway, appellant, after filing his governmental tort claims action prematurely, failed to refile his petition within 180 days after his claim was denied. For the reason set out below, we reverse the trial court’s summary judgment.

I. Background

¶ 2 On February 13, 1999, Presbyterian Hospital in Oklahoma City, Oklahoma, discharged Hathaway from an in-patient stay. When he left the hospital, Hathaway took the Gideon Bible from his hospital room. Two security guards employed by Medical Research and Technology Authority, a state authority (State), detained Hathaway outside of the hospital and caused him to be arrested and taken to jail and also caused petty larceny charges to be filed against him. Hathaway remained in the Oklahoma County jail for about a month until the petty larceny charge was dismissed because Presbyterian Hospital did not own the Gideon Bible.

13 On January 11, 2000, Hathaway gave timely notice to the State of a tort claim stemming from the occurrence outside the hospital. On February 11, 2000, Hathaway filed an action against the State, the security guards and Presbyterian Hospital seeking damages for false arrest and imprisonment, malicious prosecution and intentional infliction of emotional distress. The State answered, responding affirmatively that: 1) the State was not negligent and therefore not liable; 2) the claim is barred or reduced by the Governmental Tort Claims Act; and, 3) the State is immune from lability under the Governmental Tort Claims Act.¹

€ 4 On February 21, 2001, the State moved for summary judgment asserting that Hathaway failed to comply with the Governmental Tort Claims Act. The State argued that it was entitled to judgment because Hathaway, after filing his action prematurely, failed to file a petition or amended petition within 180 days after his claim was denied. The trial court entered a summary judgment finding that Hathaway failed to file a petition or amended petition within the 180-day limitation period.

15 Hathaway appealed, asserting that his premature action ripened into a timely action after the denial of the claim because the State had been served with summons and filed an answer. The Court of Civil Appeals affirmed the summary judgment finding that 51 0.8.8upp.2000, § 157 clearly expresses an intent that an action may not be initiated against a governmental entity unless notice of the claim has been timely presented and the claim has been denied. It concluded that Hathaway's action was a nullity and accordingly did not ripen into a timely action. We previously granted certiorari.

II. Standard of Review

16 A summary judgment disposes solely of issues of law and therefore, it is reviewable by a de movo standard.² In a de movo review, we have plenary, independent and non-deferential authority to determine whether the trial court erred in its application of the law and whether there is any genuine issue of material fact.³

IH. A governmental tort claims action initiated after timely notice of the claim but before the claim has been denied is premature.

T7 In enacting The Governmental Tort Claims Act (GTCA), 51 0.8.2001, §§ 151, et seq.,⁴ the Oklahoma Legislature extended "governmental accountability to all torts for which a private person or entity would be liable subject only to the act's specific 'limitations and exceptions.⁵ In waiving sovereign immunity, the Legislature restricted the waiver "only to the extent and in the manner prescribed in the act".⁶ The GTCA prescribes the manner in which any person asserting a claim against the state or a political subdivision must proceed.

18 The GTCA requires a claimant to present written notice of a claim within one year from the date the loss occurs or the claim is forever barred.⁷ Onee notice of the claim is timely presented, the GTCA provides the governmental entity with a 90-day period to consider the claim and either approve or deny it. The governmental entity may deny the claim by properly disallowing it or by failing to approve it in its entirety within the 90-day periods.⁸ The 90-day provision is clearly designed to require the governmental entity to act with reasonable dispatch on the claim thus preventing it from needlessly delaying the filing of an action by a claimant in the district court.⁹

19 However, the GTCA prohibits a claimant from initiating a tort action until the 90-day period expires unless the governmental entity acts upon the claim in a manner that denies the claim before the 90-day period expires. The first sentence in 51 O.S8. 2001, § 157(A) reads: "A person may not initiate suit against the state or a political subdivision unless the claim has been denied in whole or in part." This prohibition serves the interest of the governmental entity by allowing it a specific period to consider and act upon the claim before the expense of a suit is imposed upon it. If a claimant presents a timely claim but commences an action before the 90 day period for determining the claim has expired, the action is premature.

IV. A premature governmental tort claims action is subject to dismissal.

110 A governmental entity may, by motion to dismiss, raise the issue of a premature filing as a plea in abatement. However, because a plea in abatement does not affect the merits of the action, dismissal is ordinarily without prejudice.¹⁰ After dismissal, the claimant may refile the action ¹¹ after the 90-day period expires and before the 180-day limitation expires.¹²

{11 Hathaway argues his premature action ripened into a timely action when the 90-day period for determining the claim expired. In essence, he contends that after the 90-day period, his action was no longer subject to abatement by dismissal motion. We reject this contention. Like other statutes, the provision allowing a governmental entity a 90-day period to consider and act upon a claim should be applied to give effect to the legislative intent.¹³ The Legislature clearly intended that a governmental entity should have ninety days to consider a claim before the expense of an action is imposed upon it. If we accepted Hathaway's argument that premature actions should ripen into timely actions, we would, in effect, encourage premature governmental tort claims actions and completely frustrate the intent of the 90-day waiting period. Accordingly, a governmental tort claims action filed within the 90-day . period provided in 51 0.S8.2001, § 157(A) is subject to dismissal both before and after the 90-day period expires.¹⁴

V. This opinion settles a novel point of procedure and should be given prospective effect.

112 Although the result reached by the trial court, and affirmed by the Court of Civil Appeals, is consistent with the legislative intent of § 157(A), we decline to affirm the summary judgment. The terse language in the first sentence of § 157(A) does not adequately inform the practitioner who prematurely files a governmental tort claims action that the action is subject to dismissal even after the 90-day waiting period has expired. This novel point of procedure was not previously an established legal principle nor is there extant case law from which the legal principle could have been divined.

T13 Because we pronounce a point of procedural law that stood unresolved at the filing of this governmental tort claims action, this opinion should be given prospective ef-feet.¹⁵ Accordingly, this opinion shall operate prospectively and apply only to those governmental tort claims actions filed after the date of the mandate in this case.

VI. Conclusion

114 A governmental tort claims action may not be initiated against a governmental entity unless a notice of claim has been timely presented and the claim has been denied. When a claimant initiates a governmental tort claims action before the claim has been denied, the action is premature and it is subject to dismissal both before and after the 90-day waiting period in § 157(A) has expired. After dismissal, the claimant may refile the action after the 90-day period expires and before the 180-day limitation in § 157(B) expires.

1 15 When as here, the dispositive rule of law on the point in controversy was far from settled, fundamental fairness requires that today's pronouncement be accorded purely prospective effect. It will apply only to those governmental tort claims actions filed after the date of the mandate in this case.

1 16 On certiorari granted upon appellant's petition, the Court of Civil Appeals' opinion is vacated, the trial court's judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with today's pronouncement.

WATT, V.C.J., and HODGES, LAVENDER, SUMMERS, and WINCHESTER, JJ., concur. KAUGER, J., (by separate writing and joining OPALA, J.) concurs in part and dissents in part. HARGRAVE, C.J. and OPALA, J. (by separate writing) dissent.

1 . The State did not seek dismissal of the action in its answer filed July 10, 2000.

2 . Manley v. Brown, 1999 OK 79, 989 P.2d 448, 455; Neil Acquisition, LLC v. Wingrod Investment Corp., 1996 OK 125, ¶ 5, 932 P.2d 1100.

3 . Kluver v. Weatherford Hospital Authority, 1993 OK 85, 859 P.2d 1081, 1084. |

4 . This opinion references the most recent version of The Governmental Tort Claims Act unless an earlier version is applicable.

5 . Anderson v. Eichner, 1994 OK 136, ¶ 9, 890 P.2d 1329, 1336; and 51 O.S.1991, § 153(A).

6 . 51 0.$.2001,§ 152.1(B).

7 . 51 0.$.2001, § 156(B) 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.

8 . 51 O.S.2001, § 157(A) reads, in part:

... 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 state or political subdivision has denied the claim or reached a settlement with the claimant before the expiration of that period.

9 . Trent v. Board of County Commissioners of Johnston County, 1988 OK 15, 755 P.2d 615, 619. Even though the 90-day period inures to the benefit of the claimant, it has been characterized as a negative statute of limitation that affects the claimant's statutory remedy but not the substantive right to recover. Id. at 620, dissenting opinion by Opala, J. According to the plain terms of 51 0.$.2001, § 157, the 90-day period may be extended by written agreement between the claimant and the governmental entity and our case law teaches that the 90-day period may be extended by tolling, waiver or estoppel. Carswell v. Oklahoma State Univ., 1999 OK 102, ¶ 13, 995 P.2d 1118, 1122; Vaughan v. City of Broken Arrow, 1999 OK 47, ¶ 7, 981 P.2d 316, 320; Cortright v. City of Oklahoma City, 1997 OK 158, ¶ 9, 951 P.2d 93, 96; and Whitley v. Oologah Independent School Dist., No. I-4, 1987 OK 67, ¶ 6, 741 P.2d 455.

10 . Dean v. Wes Watkins Area Vocational-Technical School Dist., No. 25, 1989 OK 141, ¶ 9, 782 P.2d 116, 119. See also, State for use of Board of County Commissioners of Pontotoc County ex rel. Braly v. Ford, 1941 OK 270, § 25-27, 189 OK 299, 116 P.2d 988, 992, quoting 1 C.J.S., Abatement and Revival, 29, § 2, that " 'Even under the strict rules of the common law, the abatement of an action is not fatal to the cause of action; the customary procedure used to bring about an abatement was not designed to operate upon any substantial rights or liabilities as between the parties.""

11 . Dismissal of a premature action abates the action, but the right remains with the plaintiff to institute a new action when the cause accrues. State for use of Board of County Commissioners of Pontotoc County ex rel. Braly v. Ford, supra., note 10.

12 . 51 0.$.2001, § 157(B) reads in part:

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....

13 . The plain language of § 157(A) of the GTCA reflects the legislative intent that a claimant must allow the governmental entity ninety days to act upon a timely notice of claim before bringing a governmental tort claims action and no further construction is required or permitted. Duncan v. City of Nichols Hills, 1996 OK 16, 115, 913 P.2d 1303, 1307.

14 . The concurring in part and dissenting in part opinion essentially concludes that the State waived the affirmative defense of statute of limitations by failing to raise it in its filed answer. Hathaway presented but one argument in this appeal. He contended that his premature suit against the State ripened when his timely filed tort claim was deemed denied by operation of law and that it was unnecessary for him to refile or amend his petition. Hathaway did not contend that the State waived the affirmative defense of statute of limitations in his response to the summary judgment, in his petition in error or in his petition for certiorari.

In Reddell v. Johnson, 1997 OK 86, ¶¶ 6-7, 942 P.2d 200, 202, we said,

An appellate court is generally confined to the issues raised by the parties and presented by the proof, pleadings, petition in error and briefs....

... (CJourts are not free to play the role of advocate, and raise claims or defenses that should be left to the parties.... [The] court cannot raise the defense of waiver when it was not raised by the party who could have done so....

The individualized question of whether a litigant has, during the course of litigation, waived its procedural right to assert an affirmative defense is not an issue which relates to the public interest and may be raised for the first time on appeal.

15 . McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶¶ 11-12, 979 P.2d 252, 256-257; Isbell v. State ex rel. The Retirement and Pension Board of the Department of Public Safety, 1979 OK 156, ¶ 11, 603 P.2d 758, 760; Poafpybitty v. Skelly Oil Company, 1964 OK 162, ¶¶ 18-19, 394 P.2d 515, 519-520.