Present: All the Justices
MONA MELANSON
v. Record No. 000497 OPINION BY JUSTICE DONALD W. LEMONS
January 12, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT FOR THE CITY OF ALEXANDRIA
John E. Kloch, Judge
In this appeal, we consider whether mailing a notice of
claim by certified mail, return receipt requested, is the
exclusive method of filing a notice of claim against the
Commonwealth under the Virginia Tort Claims Act (“the Act”).
Code §§ 8.01-195.1 through –195.9. Holding that it is, we
affirm the trial court’s dismissal of the motion for judgment
by Mona Melanson (“Melanson”) against the Commonwealth.
I. Facts and Proceedings
On September 6, 1996, Melanson was injured as a result of
a falling traffic sign allegedly owned and maintained by the
Virginia Department of Transportation (“VDOT”). On September
4, 1997, Melanson mailed a letter by certified mail, return
receipt requested, to D.B. Smit (“Smit”), Acting Director of
the Division of Risk Management of the Commonwealth. The
letter described Melanson’s injuries and the event that caused
them, and requested compensation from the Commonwealth for
negligent maintenance of the highway sign. The return receipt
from the certified mailing indicated that the letter was
received on September 16, 1997, more than one year from the
date of her injuries. In addition to mailing the letter to
Smit, counsel for Melanson hand-delivered a copy of the letter
to the Division of Risk Management on September 5, 1997,
within one year from the date of her injuries.
Melanson filed a motion for judgment against the
Commonwealth in the Circuit Court for the City of Alexandria
under the provisions of the Act, alleging negligence by agents
and employees of the Commonwealth. The Commonwealth filed a
special plea of sovereign immunity, asserting that Melanson
had failed to satisfy the notice requirements of the Act. The
trial court granted the Commonwealth’s special plea and
dismissed Melanson’s motion for judgment, finding that she
“did not file a notice of her claim against the Commonwealth
with the Director of the Division of Risk Management or the
Attorney General by certified mail, return receipt requested,
within one year after her cause of action accrued to her.”
On appeal, Melanson contends that the trial court erred
in dismissing her motion for judgment. She asserts that
“filing” and “mailing” are separate concepts and that mailing
is not the only method of satisfying the filing requirement
under Code § 8.01-195.6. Melanson maintains that her notice
of claim was timely filed because it was hand-delivered to the
Division of Risk Management within the one year period
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mandated by Code § 8.01-195.6. The Commonwealth argues that
mailing is the only method of filing permitted under § 8.01-
195.6 and her mailing was not received within one year of the
accrual of her cause of action.
II. Analysis
In the absence of express statutory or constitutional
provisions waiving immunity, the Commonwealth and its agencies
are immune from liability for the tortious acts or omissions
of their agents and employees. An express but limited waiver
of the Commonwealth’s immunity from tort claims was provided
by the enactment of the Virginia Tort Claims Act in 1981. The
Act is in derogation of common law, and, therefore, its
limited waiver of immunity must be strictly construed.
Baumgardner v. Southwestern Va. Mental Health Inst., 247 Va.
486, 489, 442 S.E.2d 400, 402 (1994).
Code § 8.01-195.6, the Notice of Claim provision of the
Act, provides in relevant part:
Every claim cognizable against the
Commonwealth . . . shall be forever barred
unless the claimant or his agent, attorney or
representative has filed a written statement of
the nature of the claim, which includes the
time and place at which the injury is alleged
to have occurred and the agency or agencies
alleged to be liable. The statement shall be
filed with the Director of the Division of Risk
Management or the Attorney General within one
year after such cause of action accrued if the
claim is against the Commonwealth. . . . The
claimant or his agent, attorney or
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representative shall, in a claim cognizable
against the Commonwealth, mail the notice of
claim via the United States Postal Service by
certified mail, return receipt requested,
addressed to the Director of the Division of
Risk Management or the Attorney General in
Richmond. . . .
In any action contesting the filing of the
notice of claim, the burden of proof shall be
on the claimant to establish mailing and
receipt of the notice in conformity with this
section. The signed return receipt indicating
delivery to the Director of the Division of
Risk Management, [or] the Attorney General
. . . when admitted into evidence, shall be
prima facie evidence of filing of the notice
under this section. The date on which the
return receipt is signed by the Director, [or]
the Attorney General . . . shall be prima facie
evidence of the date of filing for purposes of
compliance with this section.
Because Melanson hand-delivered her notice of claim within the
one year period required by the statute but receipt of her
notice by “certified mail, return receipt requested” was
beyond the one year period, we must decide if the mailing
requirement is the exclusive method for giving notice of claim
under the Act.
In Halberstam v. Commonwealth, 251 Va. 248, 467 S.E.2d
783 (1996), we considered whether a plaintiff complied with
the notice requirements of the Act. The plaintiff was injured
when she fell in a parking lot at George Mason University, a
state-supported institution. She forwarded several letters,
describing her accident and the extent of her injuries, to the
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Director of the Division of Risk Management. Upon motion of
the Commonwealth, the trial court dismissed the plaintiff’s
motion for judgment because her notice of claim did not
sufficiently identify the place where her injuries occurred.
We stated, in Halberstam, that “strict compliance with
all [the Act’s] provisions is required.” Id. at 251, 467
S.E.2d at 784. We also stated that under the Act, “notice
must be sent through the United States Postal Service by
certified mail, return receipt requested, addressed to the
Director of the Division of Risk Management or the Attorney
General.” 251 Va. at 251, 467 S.E.2d at 785. Melanson
contends that nothing in the Act or our opinion in Halberstam
excludes filing by hand delivery as long as certified mailing
is accomplished as well. We disagree.
In Halberstam, the plaintiff argued that if her notice of
claim, a letter dated March 14, 1994, lacked the specificity
required by the Act, then, any deficiencies were cured by her
prior collateral correspondence. Rejecting her contention, we
held that “[o]nly the March 14 letter . . . was sent to an
official designated in the statute and in the manner
prescribed by the statute, certified mail with a return
receipt requested. Thus, in this case, that letter alone must
contain the statutorily required information.” Id. at 252,
467 S.E.2d at 785. In Halberstam, we confined our
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consideration of proper filing of a notice of claim to that
which was mailed by certified mail, return receipt requested.
No other form of communication or delivery was considered to
be “in the manner prescribed by the statute.” Id.
As we have previously noted:
The primary objective of statutory construction
is to ascertain and give effect to legislative
intent. The plain, obvious, and rational
meaning of a statute is to be preferred over
any curious, narrow, or strained construction.
A statute is not to be construed by singling
out a particular phrase; every part is presumed
to have some effect and is not to be
disregarded unless absolutely necessary.
Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609
(1998) (citations omitted). Acceptance of Melanson’s
contention that filing is not dependent upon mailing would
render the mailing requirement superfluous. If the concepts
of filing and mailing are separate as she urges, there would
be no stated time within which the mailing would have to be
received.
Additionally, the Act anticipates controversy over timely
notice and provides: “In any action contesting the filing of
the notice of claim, the burden of proof shall be on the
claimant to establish mailing and receipt of the notice in
conformity with this section.” The juxtaposition of
controversy over “filing” with proof requiring “mailing” amply
demonstrates the legislature’s intention that mailing “in
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conformity with [the Act]” is the exclusive method of filing a
notice of claim under the Act.
Finally, Melanson argues that the Commonwealth had actual
knowledge of the claim within the one year period provided by
the Act and such knowledge is sufficient to satisfy the notice
requirement. We have previously stated that “actual notice
does not obviate [the] duty to strictly comply with the Act’s
notice provisions.” Halberstam, 251 Va. at 252, 467 S.E.2d at
785.
III. Conclusion
The Commonwealth’s limited waiver of immunity for tort
claims must be strictly construed. “For this Court to place
any limitation on the clear and comprehensive language of the
statute, or to create an exception where none exists under the
guise of statutory construction, would be to defeat the
purpose of the enactment and to engage in judicial
legislation.” Town of Crewe v. Marler, 228 Va. 109, 114, 319
S.E.2d 748, 750 (1984). Accordingly, we will affirm the
judgment of the trial court.
Affirmed.
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