Heng-Nguyen v. Tigard-Tualatin School District 23J

365 P.3d 1173, 275 Or. App. 724, 2015 Ore. App. LEXIS 1613
CourtCourt of Appeals of Oregon
DecidedDecember 30, 2015
DocketC131214CV; A155842
StatusPublished
Cited by5 cases

This text of 365 P.3d 1173 (Heng-Nguyen v. Tigard-Tualatin School District 23J) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heng-Nguyen v. Tigard-Tualatin School District 23J, 365 P.3d 1173, 275 Or. App. 724, 2015 Ore. App. LEXIS 1613 (Or. Ct. App. 2015).

Opinion

ARMSTRONG, P. J.

Plaintiff brought a personal-injury action against defendant Tigard-Tualatin School District 23J, alleging that she was injured in a car accident that was caused by an employee of defendant who was acting in the course of employment. The trial court granted summary judgment for defendant and denied partial summary judgment for plaintiff after concluding that defendant had not received timely notice under the Oregon Tort Claims Act (OTCA) of plaintiffs claim. Plaintiff appeals, contending that defendant had received timely notice of plaintiffs claim and, hence, that the court erred in granting summary judgment to defendant and denying partial summary judgment to plaintiff. We agree with plaintiff and reverse.

The underlying facts are uncontested. Plaintiff was driving her car on February 28, 2011, and made a left turn. Defendant’s employee simultaneously attempted to make a left turn and hit plaintiffs car. Plaintiff spoke to Jensen, who represented defendant’s liability insurance trust, the week after the accident. During that week, Jensen received two estimates of the cost to repair plaintiffs car. Both estimates suggested the cost to repair the car exceeded the value of the car. Plaintiff and Jensen agreed that defendant’s liability insurance trust would pay plaintiff $6,030, slightly more than the car’s value, and, in exchange, plaintiff would release defendant from all claims that she had against it except for a potential personal-injury claim. Plaintiff received a check from defendant. The front of the check stated, “full and final resolution of property damage only.” The back of the check stated, “Endorsement of this check by Payee acknowledges a full and final release of all claims except personal injury claims against Tigard-Tualatin School District.” Plaintiff cashed the check.

Plaintiff contacted Jensen a second time in August 2011. She told Jensen that she had discovered an additional $129 in property damage from the accident for damage to a child’s car seat. Jensen offered to settle that claim for $70, which plaintiff accepted.

In March 2012 — over a year after the accident— plaintiff told Jensen that she had suffered physical injuries [726]*726in the accident. Plaintiff later filed an action against defendant that sought $135,000 in damages for personal injuries caused by the accident. In its answer, defendant alleged that plaintiffs claim was barred by the OTCA because plaintiff had not given defendant timely notice of her claim.

The OTCA provides that no action may be maintained on a tort claim against a public body unless the public body receives timely notice of claim. See ORS 30.275(1). The notice requirement may be satisfied in any of four ways: (1) the plaintiff gives the public body formal notice of claim; (2) the public body receives actual notice of claim; (3) the plaintiff commences an action on the claim; or (4) the public body pays all or part of the claim. See ORS 30.275(3).

Defendant moved for summary judgment in its favor on plaintiffs claim, contending that it had not received notice of plaintiffs claim within 180 days after the accident. See ORS 30.275(2) (with limited exceptions, notice of claim must be given within 180 days after loss or injury). Defendant attached three documents to its motion. First, defendant submitted an affidavit from Jensen stating that he “did not have reason to believe that [plaintiff] wanted to pursue a personal injury lawsuit” until plaintiff filed her complaint against defendant. Jensen’s affidavit further stated that “plaintiff alleged property damage to her vehicle” but she “never said she was physically injured, suffered emotional distress, or intended to sue the District” until more than a year after the accident. Second, defendant submitted Jensen’s notes from his original conversation with plaintiff, where he wrote that plaintiff “does not appear to want to chase an injury claim at this point.” Finally, defendant attached a “closing report” from defendant’s claim office and its claims representative, listing plaintiff as the claimant and stating that “we reimbursed the claimant in the amount of $6,030.” Plaintiff responded to defendant’s motion by moving for partial summary judgment in her favor on whether defendant had received timely notice under the OTCA, relying on the documents that defendant had submitted in support of its motion.

The parties disagreed over whether the telephone conversation that plaintiff had with Jensen within a week of [727]*727the accident had given defendant actual notice of plaintiffs claim, which, as noted, is one of the four ways to satisfy the OTCA notice requirement.1 ORS 30.275(6) defines “actual notice” of claim to be

“any communication by which * * * the public body acquires actual knowledge of the time, place and circumstances giving rise to the claim, where the communication is such that a reasonable person would conclude that a particular person intends to assert a claim against the public body.”

Plaintiff contended that her telephone call with Jensen satisfied those requirements.

Defendant disagreed. It contended that a reasonable person would have understood from plaintiffs call that plaintiff sought compensation for property damage to her car but not for personal injuries. Defendant reasoned, therefore, that, at most, it had received actual notice only of plaintiffs property claim. However, it also contended that a communication constitutes actual notice under ORS 30.275(6) only if the communication would lead a reasonable person to believe that the plaintiff intends to file an action against the defendant. Here, it noted, plaintiff asked only for money, which “is not the same thing as suing somebody.”

The trial court granted defendant’s motion and denied plaintiffs motion. The court subsequently entered a judgment dismissing plaintiffs claim, and plaintiff appeals. In appeals involving cross-motions for summary judgment, we review the record for each motion in the light most favorable to the party opposing it. Johnson v. State Board of Higher Education, 272 Or App 710, 712, 358 P3d 307 (2015).

We reject defendant’s argument that it did not receive actual notice under the OTCA of plaintiffs personal-injury claim because plaintiff asked only to be reimbursed for the property damage to her car. That argument is [728]*728foreclosed by Flug v. University of Oregon, 335 Or 540, 73 P3d 917 (2003).

The plaintiff in Flug suffered from severe depression. In April 1995, the plaintiff made comments to her coworkers that suggested that she might harm others, and the defendant placed the plaintiff on administrative leave. Roughly a month later, the defendant told the plaintiff that she could return to work only if she obtained a release from her doctor that said that she was able to work full time and to perform all the functions of her job. The plaintiff hired a lawyer who attempted to negotiate the plaintiffs return to work with the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
365 P.3d 1173, 275 Or. App. 724, 2015 Ore. App. LEXIS 1613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heng-nguyen-v-tigard-tualatin-school-district-23j-orctapp-2015.