Woodard v. City of Lincoln

578 N.W.2d 892, 7 Neb. Ct. App. 11
CourtNebraska Court of Appeals
DecidedMay 12, 1998
DocketA-97-241
StatusPublished
Cited by3 cases

This text of 578 N.W.2d 892 (Woodard v. City of Lincoln) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Woodard v. City of Lincoln, 578 N.W.2d 892, 7 Neb. Ct. App. 11 (Neb. Ct. App. 1998).

Opinions

Sievers, Judge.

Philip H. Woodard and Bessie Woodard appeal an order of the district court for Lancaster County granting the motion for [13]*13summary judgment of the City of Lincoln (City) and Virgil L. Wells. The Woodards brought suit against the City and Wells under the Political Subdivisions Tort Claims Act (Act), Neb. Rev. Stat. § 13-901 et seq. (Reissue 1991 & Cum. Supp. 1992), but the district court determined the action was not timely under the Act’s statute of limitations and dismissed. The Woodards contend that the actions of the City’s claims specialist estop the City and Wells from using the statute of limitations defense.

FACTUAL BACKGROUND

On May 28, 1992, while riding his bicycle in Lincoln, Nebraska, near the intersection of Capitol Parkway and D Street, Philip was struck and injured by a City “Handi-Bus” driven by Wells. Philip was riding his bicycle in the crosswalk of that intersection at the time he was struck, and he sustained a fractured right hip.

On June 11,1992, the Woodards met with Kent Imig, a claims specialist for the City. At this meeting, Imig tape-recorded an interview with Philip regarding the circumstances of the accident. In affidavits which are in the record, the Woodards contend that at this meeting Imig encouraged them not to hire an attorney but to negotiate with the City directly. On July 7, the Woodards and Imig signed a “Letter of Understanding” which provided that the City was “willing” to voluntarily reimburse Philip for lost wages and some medical expenses on a “periodic basis.” The letter also contained the following language: “This will also acknowledge that in the event that either party retains legal counsel for the purpose of representation for the May 28, 1992 accident, that written notice will immediately be given to the other party, and that all voluntary payments will be discontinued at that time.”

Pursuant to this letter of understanding, the City reimbursed Philip for various medical expenses and lost wages. The City has paid Philip $13,544.77, mostly for lost wages. The last voluntary payment was made on April 28, 1993, which included lost wages through April 15, when Philip returned to work. On May 12, Philip filed a written notice of claim with the City by a certified letter to James Faimon in the city attorney’s office.

The City made several written settlement offers to the Woodards during 1994 and 1995, none of which were accepted. [14]*14These offers are attached to the Woodards’ reply as exhibits and reflect the following offers: an offer for $100,000, dated December 22, 1994, with the City obtaining credit for payments already made; a structured settlement, dated March 15, 1995, with an immediate cash payment of $50,000 and $500 payable monthly for life, guaranteed for 10 years; a structured settlement, dated April 19, 1995, with an immediate cash payment of $29,000, $1,000 payable monthly for 12 years, and $20,000 payable in 12 years as a future capital payment; and a structured settlement, dated August 7, 1995, with an immediate cash payment of $75,000, $500 payable monthly for 12 years, and $20,000 payable in 12 years as a future capital payment. The Woodards did not obtain legal counsel until negotiations broke down in November 1995. The Woodards filed a petition against the City and Wells in the district court for Lancaster County on March 22, 1996. Philip asked for damages for past and future medical care and lost wages. Bessie asked for damages for loss of consortium. In their answer, the City and Wells raised the affirmative defense that the case was barred by the 2-year statute of limitations, as well as that Bessie failed to submit a written claim to the City within 1 year after the claim accrued, as required by the Act.

In its ruling on the motion for summary judgment, the trial court rejected the Woodards’ argument that Bessie substantially complied with the notice requirements of the Act by signing the letter of understanding. The court found that Bessie’s claim was barred, reasoning that

the substantial compliance doctrine has only been extended to cover cases in which the claimant filed a written claim with the appropriate designee but the claim’s content was lacking in some respect. See e.g., Chicago Lumber Co. v. School Dist. No. 71, 227 Neb. 355, 417 N.W.2d 757 (1988).
In this case, Bessie Woodard never filed a formal written notice with the city; therefore, the substantial compliance doctrine is inapplicable.

The trial court also rejected the Woodards’ argument that the City and Wells should be equitably estopped from asserting the statute of limitations defense because of the letter of under[15]*15standing and because the City continued to negotiate with the Woodards well into 1995. The trial court stated:

In Bohl v. Buffalo Cty., 251 Neb. 492, 498[, 557 N.W.2d 668, 673 (1997),] the Nebraska Supreme Court rejected this argument stating: “This court has never applied, and will not apply in this case, the doctrine of equitable estoppel to excuse a plaintiff’s failure to comply with the Political Subdivision[s] Tort Claims Act.”
There are several disturbing elements present in this case, not the least of which is the direct admonition of the City that all voluntary payments will cease if the plaintiffs obtain the services of an attorney. In my opinion, this is improper, particularly when made by an experienced claims adjustor to an injured party. However, whether these actions of the City warrant the application of the doctrine of equitable estoppel involve[s] broad areas of public policy and the integrity of the judicial process that are more properly addressed by the Nebraska Supreme Court. Based on the law as it now exists, I must find the doctrine of equitable estoppel to be inapplicable here.

Thus, the trial court sustained the City and Wells’ motion for summary judgment and dismissed the Woodards’ petition for failure to comply with the Act.

ASSIGNMENTS OF ERROR

The Woodards appeal to this court and, restated, argue that the trial court should have applied the doctrine of equitable estoppel as a bar to the City and Wells’ statute of limitations defense. The Woodards also argue that the trial court erred in finding that Bessie’s signature on the letter of understanding did not satisfy the written notice of claim requirement in the Act.

STANDARD OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. A reviewing court views the evidence in a light [16]*16most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from submitted evidence. Bohl v. Buffalo Cty., 251 Neb. 492, 557 N.W.2d 668 (1997).

ANALYSIS

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Related

Woodard v. City of Lincoln
588 N.W.2d 831 (Nebraska Supreme Court, 1999)
Woodard v. City of Lincoln
578 N.W.2d 892 (Nebraska Court of Appeals, 1998)

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578 N.W.2d 892, 7 Neb. Ct. App. 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woodard-v-city-of-lincoln-nebctapp-1998.