§ 13-919 — Claims; limitation of action

Nebraska § 13-919

• Jurisdiction: Nebraska
• Ch. 13: Cities, Counties, and Other Political Subdivisions

Text

(1) Every claim against a political subdivision permitted under the Political Subdivisions Tort Claims Act shall be forever barred unless within one year after such claim accrued the claim is made in writing to the governing body. Except as otherwise provided in this section, all suits permitted by the act shall be forever barred unless begun within two years after such claim accrued. The time to begin a suit shall be extended for a period of six months from the date of mailing of notice to the claimant by the governing body as to the final disposition of the claim or from the date of withdrawal of the claim from the governing body under section 13-906 if the time to begin suit would otherwise expire before the end of such period.
(2) If a claim is made or filed under any other law of this state and a determination is made by a political subdivision or court that the act provides the exclusive remedy for the claim, the time to make a claim and to begin suit under the act shall be extended for a period of six months from the date of the court order making such determination or the date of mailing of notice to the claimant of such determination by the political subdivision if the time to make the claim and to begin suit under the act would otherwise expire before the end of such period. The time to begin suit may be further extended as provided in subsection (1) of this section.
(3) If a claim is made or a suit is begun under the act and a determination is made by the political subdivision or by the court that the claim or suit is not permitted under the act for any other reason than lapse of time, the time to make a claim or to begin a suit under any other applicable law of this state shall be extended for a period of six months from the date of the court order making such determination or the date of mailing of notice to the claimant of such determination by the political subdivision if the time to make the claim or begin the suit under such other law would otherwise expire before the end of such period.
(4) If a claim is brought under the Nebraska Hospital-Medical Liability Act, the filing of a request for review under section 44-2840 shall extend the time to begin suit under the Political Subdivisions Tort Claims Act an additional ninety days following the issuance of the opinion by the medical review panel if the time to begin suit under the Political Subdivisions Tort Claims Act would otherwise expire before the end of such ninety-day period.
(5) This section and section 25-213 shall be the only statutes of limitations applicable to tort claims as defined in the act.

Legislative History

Source: Laws 1969, c. 138, § 16, p. 633; Laws 1974, LB 949, § 1; Laws 1984, LB 692, § 1; R.S.Supp.,1986, § 23-2416; Laws 1991, LB 15, § 8. Cross References: Nebraska Hospital-Medical Liability Act, see section 44-2855. Annotations: 1. Statute of limitations 2. Cause of action 3. Notice 4. Miscellaneous 1. Statute of limitations A claimant under the Political Subdivisions Tort Claims Act must bring a claim before the governing board of a political subdivision prior to filing suit, and suits must be filed within 2 years of the date the claim accrued. There are only two exceptions to extend this 2-year limitation by 6 months: (1) where the governmental subdivision takes some action on the claim before the 2 years have expired but at a time when less than 6 months remain for filing suit and (2) if the claimant withdraws the claim within the 2-year period but at a time when less than 6 months to file suit remain. Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717 (2019). An amended tort claim was time barred where the initial tort claim was timely filed but was not filed with the individual statutorily designated to receive tort claims and the amended tort claim was filed with the proper individual but was not filed within 1 year after the claim accrued. Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 857 N.W.2d 789 (2015). The evident purpose of the 6-month extension of the filing deadline set forth in subsection (2) of this section is to provide claimants who filed timely claims, but filed those claims with the wrong tribunal or pursuant to the wrong statute, enough time to present their claims to the proper political subdivision. This requires, however, that those claimants still act promptly in order to satisfy the public purpose reflected in the notice requirements. A claim "made or filed under any other law of this state," within the meaning of subsection (2) of this section, must still be filed within the 1-year time limit imposed by the appropriate notice provision of either subsection (1) of this section or subsection (1) of section 13-920. Keller v. Tavarone, 265 Neb. 236, 655 N.W.2d 899 (2003). Pursuant to subsection (1) of this section, the filing of a workers' compensation claim does not toll the limitation period set forth in this subsection. For purposes of subsection (1) of this section, a cause of action accrues, thereby starting the period of limitations, when a potential plaintiff discovers, or in the exercise of reasonable diligence should discover, the political subdivision's negligence. Polinski v. Omaha Pub. Power Dist., 251 Neb. 14, 554 N.W.2d 636 (1996). Under subsection (1) of this section, the filing or presentment provision bars a plaintiff's action and precludes a remedy only if the claim is not filed or presented within the statutorily specified time. Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990). Subject to the exception described in section 25-213, the statute of limitations on filing a claim or suit for a political subdivision's tortious conduct is exclusively prescribed by this section. Chicago Lumber Co. v. School Dist. No. 71, 227 Neb. 355, 417 N.W.2d 757 (1988). In order for the extended period of limitations section of the Political Subdivisions Tort Claims Act to apply, one of two positive acts must occur: the governmental subdivision must act on the claim, or the claimant must withdraw the claim. Absent the occurrence of either one of those affirmative steps, the statute of limitations runs at the end of two years from and after the time the claim accrued, and the action is barred. Ragland v. Norris P.P. Dist., 208 Neb. 492, 304 N.W.2d 55 (1981). Subsection (3) of this section of the Political Subdivisions Tort Claims Act, permitting 6-month extensions brought "under any other applicable law of the state" against a political subdivision after it is determined that a claim is not permitted under the act, does not extend the time for filing a claim under the act against a different or additional political subdivision after one political subdivision denies the claim. Mace-Main v. City of Omaha, 17 Neb. App. 857, 773 N.W.2d 152 (2009). The discovery rule is applicable to the statute of limitations provisions applicable to prefiling notice requirements under the Political Subdivisions Tort Claims Act. Mace-Main v. City of Omaha, 17 Neb. App. 857, 773 N.W.2d 152 (2009). 2. Cause of action For the purposes of subsection (1) of this section, a cause of action accrues, and the period of limitations begins to run, when a potential plaintiff discovers, or in the exercise of reasonable diligence should discover, the political subdivision's negligent act or omission. Hutmacher v. City of Mead, 230 Neb. 78, 430 N.W.2d 276 (1988). A cause of action accrues and the statute of limitations begins to run when the aggrieved party has the right to institute and maintain suit, even though such plaintiff may be ignorant of the existence of the cause of action. Ward v. City of Alliance, 227 Neb. 306, 417 N.W.2d 327 (1988). For purposes of subsection (1) of this section, a cause of action accrues, thereby starting the period of limitations, when a potential plaintiff discovers, or in the exercise of reasonable diligence should discover, the political subdivision's negligence. Weyers v. Community Memorial Hosp., 30 Neb. App. 520, 971 N.W.2d 155 (2022); Gard v. City of Omaha, 18 Neb. App. 504, 786 N.W.2d 688 (2010). For purposes of the Political Subdivisions Tort Claims Act, the relevant question is when the cause of action accrued, not when the last injury occurred. Gard v. City of Omaha, 18 Neb. App. 504, 786 N.W.2d 688 (2010). 3. Notice The primary purpose of notice provisions in connection with actions against political subdivisions is to afford municipal authorities prompt notice of the accident and injury in order that an investigation may be made while the occurrence is still fresh and the municipal authorities are in a position to intelligently consider the claim and to allow it if deemed just or, in the alternative, to adequately protect and defend the public interest. Keller v. Tavarone, 265 Neb. 236, 655 N.W.2d 899 (2003). The notice of claim requirements of the Nebraska Political Subdivisions Tort Claims Act is a condition precedent to the institution of suit against a political subdivision. The failure to allege in the petition that the condition precedent had been met is a fatal defect. Utsumi v. City of Grand Island, 221 Neb. 783, 381 N.W.2d 102 (1986). 4. Miscellaneous The operation of the Nebraska Hospital-Medical Liability Act, section 44-2840, does not excuse a plaintiff from compliance with the requirement under the Political Subdivisions Tort Claims Act that the claim be presented to the political subdivision prior to filing suit. Keller v. Tavarone, 262 Neb. 2, 628 N.W.2d 222 (2001). Political Subdivisions Tort Claims Act including one-year notice of claim requirements and two-year limitation for bringing action held constitutional. Campbell v. City of Lincoln, 195 Neb. 703, 240 N.W.2d 339 (1976). The operation of the Nebraska Hospital-Medical Liability Act does not excuse compliance with the requirement under the Political Subdivisions Tort Claims Act that a claim be presented to the political subdivision prior to filing suit. Weyers v. Community Memorial Hosp., 30 Neb. App. 520, 971 N.W.2d 155 (2022). While not a jurisdictional prerequisite, the filing or presentment of a claim to the appropriate political subdivision is a condition precedent to commencement of a suit under the Political Subdivisions Tort Claims Act. Weyers v. Community Memorial Hosp., 30 Neb. App. 520, 971 N.W.2d 155 (2022). Because compliance with statutory time limits such as that set forth in this section can be determined with precision, the doctrine of substantial compliance generally has no application. Gard v. City of Omaha, 18 Neb. App. 504, 786 N.W.2d 688 (2010). A negligence lawsuit brought against an employee of a political subdivision is not a "tort claim" against a "political subdivision" and is not controlled by the 2-year provision of subsection (1) of this section as applied via subsection (5). Gatewood v. Powell, 1 Neb. App. 749, 511 N.W.2d 159 (1993). Claim for indemnification and contribution from political subdivision of state does not have to be filed pursuant to the Nebraska Political Subdivisions Tort Claims Act, and its one-year statute of limitations does not apply. Waldinger Co. v. P & Z Co., Inc., 414 F.Supp. 59 (D. Neb. 1976).