Robbins v. City of Del City

1994 OK CIV APP 65, 875 P.2d 1170, 65 O.B.A.J. 1979, 1994 Okla. Civ. App. LEXIS 45, 1994 WL 243722

• Court: Court of Civil Appeals of Oklahoma
• Decided: April 26, 1994
• Docket: 81195
• Status: Published

Opinions

OPINION

HUNTER, Presiding Judge:

Appellants’ tort action against Appellee (City) arising from a claim under the Governmental Tort Claims Act (the Act), 51 O.S. Supp.1987 §§ 151 et seq., was dismissed as untimely by the trial court. Their motion for reconsideration was denied and this appeal followed.

Martha McDonald Holder (Holder) filed a tort claim with the City in March, 1990, alleging negligence arising from the death of her husband, who was shot to death in May, 1989. The City denied Holder’s claim in April, 1990. Holder timely filed suit against the City on September 27, 1990, but voluntarily dismissed her suit without prejudice in December, 1990. Holder refiled the lawsuit by amended petition on May 6, 1991. Appellants were substituted as parties upon Holder’s death in June, 1991. The City moved to dismiss primarily on the ground that the lawsuit was not commenced within 180 days after denial of the claim as required by 51 O.S.Supp.1989 § 157(B). Appellants argued that the savings clause of 12 O.S.1981 § 100 allowed them to refile this action by amended petition within one year of the dismissal. The trial court determined the recommencement of actions provision in Section 100 did not extend the time prescribed in Section 157(B) within which to sue a political subdivision, and dismissed the case. We affirm.

Division 1 of the Court of Appeals in Ceasar v. City of Tulsa, 861 P.2d 349 (Okl.App.1993) specifically held that Section 100 does not apply to claims under the Act. Appellants’ right to commence this action against the City existed only if instituted within 180 days after denial of the claim as required by the specifically authorized enactment of 51 O.S.Supp.1989 § 157(B). Section 100 is a remedial statute which operates generally to extend the statute of limitations in that it serves strictly to lengthen the period allowed for the commencement of an action or proceeding. Ceasar v. City of Tulsa, supra. In contrast, the special time limitations of the Act are conditions imposed upon the very right to bring the action and are not directed solely to the remedy. Matter of Estate of Speake, 743 P.2d 648 (Okl.1987); Johns v. Wynnewood School Board of Education, 656 P.2d 248 (Okl.1982). Dismissal of Appellants’ original action signified the ending of the lawsuit and no jurisdiction remained in the district court for Appellants to go forward with the original action. See General Motors Acceptance Corp. v. Carpenter, 576 P.2d 1166 (Okl.1978); In re Initiative Petition No. 112, State Question No. 167, 154 Okl. 257, 7 P.2d 868 (1932). The trial court was correct in refusing to apply the savings clause of Section 100 to extend the life of this action and properly dismissed the lawsuit. The dissent mistakenly concludes that the Act is totally inapplicable because Appellee allegedly waived its governmental immunity to the extent that it was covered by liability insurance. However, even Appellants recognize in their brief that “once an action is properly commenced against an insured municipality, then the insurer becomes liable to the aggrieved party to the extent of the coverage.” Here, the action was never “properly commenced”, so as to invoke the issue of liability coverage and any discussion of the issue is unnecessary in view of the district court’s lack of jurisdiction. Exemptions from liability under the Act are not exemptions from other provisions of the Act and persons with claims falling within those exemptions are not free to pursue them without compliance with the Act. Sanchez v. City of Sand Springs, 789 P.2d 240 (Okl.1990). Even when a political subdivision is potentially liable on an insured risk to the extent of its liability insurance coverage, it may still be otherwise exempt under the Act. Herweg v. Board of Education of Lawton Public Schools, 673 P.2d 154 (Okl.1983); Lamont Ind. School Dist # 1-95 of Grant County v. Swanson, 548 P.2d 215 (Okl.1976).

Moreover, the dissent’s claim that an unconstitutional classification is created by our finding that Section 100 is inapplicable to claims under the Act is also without merit as it has been determined that the Act does not violate due process or equal protection in its different consideration of private and public tortfeasors. See Childs v. State ex rel. Oklahoma State University, 848 P.2d 571, 577 (Okl.1993), cert. denied — U.S. -, 114 S.Ct. 92, 126 L.Ed.2d 60; Griggs v. State ex rel. Oklahoma Department of Transportation, 702 P.2d 1017, 1019 (Okl.1985); Neal v. Donahue, 611 P.2d 1125, 1129 (Okl.1980).

The trial court’s judgment is hereby AFFIRMED.

BAILEY, J., concurs. GARRETT, Y.C.J., dissents with separate opinion.