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Nebraska Court of A ppeals A dvance Sheets
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KOMAR v. STATE
Cite as 24 Neb. App. 692
Stacey L. Komar, appellant,
v. State of Nebraska
et al., appellees.
___ N.W.2d ___
Filed May 9, 2017. No. A-16-127.
1. Statutes: Appeal and Error. Statutory interpretation is a matter of law,
in connection with which an appellate court has an obligation to reach
an independent conclusion irrespective of the determination made by the
court below.
2. Tort Claims Act. Tort claims brought against the State must be brought
in accordance with the provisions of the State Tort Claims Act, Neb.
Rev. Stat. § 81-8,209 et seq. (Reissue 2014).
3. Tort Claims Act: Limitations of Actions. A claimant who could have
withdrawn a claim from the State Claims Board prior to the expira-
tion of the 2-year statute of limitations should be given an additional
6 months from the time the claimant could have withdrawn the claim
from the State Claims Board, rather than an additional 6 months from
the time the claimant actually withdrew the claim, to file a complaint in
the district court.
4. Statutes: Judicial Construction: Legislature: Presumptions: Intent.
When judicial interpretation of a statute has not evoked a legislative
amendment, an appellate court presumes that the Legislature has acqui-
esced in the court’s interpretation.
5. Estoppel: Fraud: Limitations of Actions. The equitable doctrine of
estoppel in pais may be applied to prevent a fraudulent or inequitable
resort to a statute of limitations, and a defendant may, by his or her
representations, promises, or conduct, be so estopped where the other
elements of estoppel are present.
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
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Nebraska Court of A ppeals A dvance Sheets
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KOMAR v. STATE
Cite as 24 Neb. App. 692
Denise E. Frost, of Johnson & Mock, P.C., L.L.O., for
appellant.
Brien M. Welch and John A. McWilliams, of Cassem,
Tierney, Adams, Gotch & Douglas, for appellees.
Pirtle, Bishop, and A rterburn, Judges.
A rterburn, Judge.
INTRODUCTION
Stacey L. Komar filed a complaint in the district court pur-
suant to the provisions of the State Tort Claims Act, Neb. Rev.
Stat. § 81-8,209 et seq. (Reissue 2014), against the State of
Nebraska, the Board of Regents of the University of Nebraska,
and Nebraska Medicine (collectively the State). The district
court dismissed Komar’s complaint, finding that the allega-
tions contained in the complaint were time barred. Komar
appeals from the district court’s dismissal of her complaint.
Upon our review, we affirm the district court’s decision to dis-
miss Komar’s complaint because it was filed after the statute
of limitations had expired.
BACKGROUND
On July 15, 2015, Komar filed a complaint against the State.
In the complaint, she alleged that various employees of the
State had accessed her medical records without her permis-
sion and without a proper purpose, in violation of both federal
and state laws. Specifically, Komar alleged that a pediatri-
cian employed by the State had improperly viewed Komar’s
medical records on July 3, 2012. Komar alleged that she did
not learn of this incident until January 15, 2013. Komar also
alleged that a second employee of the State had improperly
viewed Komar’s medical records on multiple dates between
July 16, 2012, and January 9, 2013. Komar alleged that she did
not learn of these incidents until January 8, 2014.
In her complaint, Komar indicated that on June 27, 2014,
she filed an “administrative notice” of the matters discussed
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KOMAR v. STATE
Cite as 24 Neb. App. 692
in her complaint with the “State of Nebraska Division of
Risk Management State Claims Board” (the Board). Having
received no disposition of her claim from the Board or the risk
manager, Komar indicated that she withdrew her claim from
the Board on July 14, 2015, just 1 day prior to filing her com-
plaint in the district court.
In response to Komar’s complaint, the State filed a motion
to dismiss “pursuant to Nebraska Court Rule § 6-1112(b)(6)
for the reason that [Komar’s] Complaint fails to state a claim
upon which relief can be granted.”
The district court ultimately sustained the State’s motion
to dismiss Komar’s complaint. The court found that Komar’s
action was barred by the relevant statute of limitations. While
the court’s decision was based on the date that Komar dis-
covered the first improper access of her records, the court
noted, “The fact [Komar] later discovered that more employees
improperly accessed her information does not affect the stat-
ute of limitations in this action, as it is pled.” We note that,
in her brief on appeal, Komar does not specifically assign
error to the district court’s decision concerning the subsequent
improper accesses of her records. Moreover, during oral argu-
ment, Komar’s counsel declined the opportunity to argue that
the subsequent improper accesses of the records constituted
claims that could be severed from the claim concerning the
initial access.
ASSIGNMENTS OF ERROR
On appeal, Komar asserts that the district court erred in (1)
wrongly computing the last date for filing the action and (2)
failing to find that even if she filed her complaint too late, the
State was estopped from asserting the time bar.
STANDARD OF REVIEW
[1] The issues presented by this appeal are controlled by
statute. Statutory interpretation is a matter of law, in connec-
tion with which an appellate court has an obligation to reach
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KOMAR v. STATE
Cite as 24 Neb. App. 692
an independent conclusion irrespective of the determination
made by the court below. Hullinger v. Board of Regents, 249
Neb. 868, 546 N.W.2d 779 (1996), overruled on other grounds,
Collins v. State, 264 Neb. 267, 646 N.W.2d 618 (2002).
ANALYSIS
[2] Tort claims brought against the State must be brought in
accordance with the provisions of the State Tort Claims Act,
§ 81-8,209 et seq. See Hullinger v. Board of Regents, supra.
Statute of Limitations Under
State Tort Claims Act
Komar’s first assignment of error, that the district court
wrongly computed the last date by which her complaint must
have been filed in the district court, is controlled by §§ 81-8,213
and 81-8,227(1). Section 81-8,213 provides:
No suit shall be permitted under the State Tort Claims
Act unless the Risk Manager or State Claims Board has
made final disposition of the claim, except that if the
Risk Manager or board does not make final disposition
of a claim within six months after the claim is made in
writing and filed with the Risk Manager in the manner
prescribed by the board, the claimant may, by notice in
writing, withdraw the claim from consideration of the
Risk Manager or board and begin suit under such act.
Section 81-8,227(1) provides, in relevant part:
[E]very tort claim permitted under the State Tort Claims
Act shall be forever barred unless within two years after
such claim accrued the claim is made in writing to the
Risk Manager in the manner provided by such act. The
time to begin suit under such act shall be extended for a
period of six months from the date of mailing of notice to
the claimant by the Risk Manager or State Claims Board
as to the final disposition of the claim or from the date
of withdrawal of the claim under section 81-8,213 if the
time to begin suit would otherwise expire before the end
of such period.
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KOMAR v. STATE
Cite as 24 Neb. App. 692
In her complaint, Komar indicates that she filed her claim
with the Board, not the risk manager. In Coleman v. Chadron
State College, 237 Neb. 491, 498, 466 N.W.2d 526, 531
(1991), overruled on other grounds, Collins v. State, supra, the
Nebraska Supreme Court held that the 2-year statute of limita-
tions discussed in § 81-8,227(1) applies to both the time for
filing a claim with the Board and the filing of “lawsuits” in the
district court.
In this case, the district court found that Komar’s cause of
action accrued on January 15, 2013, when she discovered that
a pediatrician employed by the State had improperly accessed
her medical records. Komar does not assign as error the district
court’s determination of the date her cause of action accrued.
Accordingly, in our analysis of the timeliness of Komar’s dis-
trict court complaint, we will use January 15, 2013, as the date
her cause of action accrued. Because Komar’s cause of action
accrued on January 15, 2013, the 2-year statute of limitations
to file the action expired on January 15, 2015, unless the time
for filing Komar’s claim was extended in some way.
In her complaint, Komar alleged that she filed her claim
with the Board on June 27, 2014, a little more than 17 months
after her claim accrued, but still within the 2-year statute of
limitations. Pursuant to the language of § 81-8,213, Komar
could have withdrawn her claim from the Board and filed
her complaint in the district court as early as December 28,
2014. On December 28, there remained approximately 19
days before the expiration of the 2-year statute of limitations
for Komar’s claim. If Komar had withdrawn her claim during
these 19 days, she would have had an additional 6 months
from the date of her withdrawal to file her complaint in the
district court, pursuant to the language of § 81-8,227(1).
However, Komar did not withdraw her claim from the Board
until July 14, 2015, almost 6 months after the 2-year statute
of limitations had expired.
The district court, relying on the Supreme Court’s hold-
ing in Hullinger v. Board of Regents, 249 Neb. 868, 546
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N.W.2d 779 (1996), overruled on other grounds, Collins v.
State, 264 Neb. 267, 646 N.W.2d 618 (2002), found that the
2-year statute of limitations for filing Komar’s complaint was
extended by 6 months from the date she could have withdrawn
her claim from the Board. In Hullinger v. Board of Regents,
the Nebraska Supreme Court analyzed the interplay between
§§ 81-8,213 and 81-8,227(1), and interpreted them together
to provide:
“[A] claimant who files a tort claim with the Risk Manager
of the State Claims Board 18 months or more after his or
her claim has accrued, but within the 2-year statute of
limitations, has 6 months from the first day on which the
claim may be withdrawn from the claims board in which
to begin suit.”
249 Neb. at 871-72, 546 N.W.2d at 783. Based on the deci-
sion in Hullinger v. Board of Regents, supra, the district court
found that Komar had until 6 months from the first day on
which her claim could have been withdrawn from the Board,
or until June 28, 2015, to file her complaint with the district
court. Komar did not file her complaint until July 15, 2015.
The district court concluded that Komar’s complaint was
time barred.
We note that the Supreme Court has modified its decision
in Hullinger v. Board of Regents, supra, to some extent. In
Collins v. State, supra, disapproved on other grounds, Geddes
v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007), the
Supreme Court found that when a claimant allows the Board
to actually reach a decision on a claim, the claimant has 6
months to file suit after notice of the denial of the claim is
mailed by the Board. The Collins court specifically held, “The
reasoning of Coleman and Hullinger does not apply to claims
that are decided by the claims board.” 264 Neb. at 272, 646
N.W.2d at 621. This limited modification to the court’s deci-
sion in Hullinger v. Board of Regents, supra, does not apply in
this case because Komar chose to withdraw her claim from the
Board prior to the Board’s actually deciding her claim.
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KOMAR v. STATE
Cite as 24 Neb. App. 692
Accordingly, we conclude that the Supreme Court’s rea-
soning in Hullinger v. Board of Regents, supra, governs the
decision in this case. However, we note that this case pre
sents a slightly different factual scenario than that presented
by Hullinger v. Board of Regents, supra. In that case, the
Supreme Court was presented with a claimant who had filed a
claim with the Board more than 18 months after his claim had
accrued, but within the 2-year statute of limitations. Because
the claim had been filed more than 18 months after the claim
had accrued, the claim could not have been withdrawn from
the Board before the 2-year statute of limitations had expired.
In this case, Komar filed her claim with the Board prior to
18 months after the claim had accrued. As such, she could
have withdrawn her claim prior to the expiration of the 2-year
statute of limitations. As we discussed above, Komar had
approximately 19 days prior to the expiration of the statute of
limitations to withdraw her claim, and if she had done so, she
would have had an additional 6 months from the date of that
withdrawal to file a complaint in the district court. However,
Komar did not withdraw her complaint prior to the expiration
of the statute of limitations. As such, we are presented with
the question of when Komar had to file her complaint in the
district court, given that she could have withdrawn her claim
from the Board prior to the 2-year statute of limitations, but
chose not to.
We conclude that, despite the minor difference in the factual
circumstances of our case, the rationale of the Supreme Court’s
decision in Hullinger v. Board of Regents, 249 Neb. 868, 546
N.W.2d 779 (1996), overruled on other grounds, Collins v.
State, 264 Neb. 267, 646 N.W.2d 618 (2002), still applies.
Accordingly, the time for Komar to file her complaint with
the district court was extended by 6 months from the time she
could have withdrawn her claim from the Board.
In Hullinger v. Board of Regents, the Supreme Court rea-
soned that in order to interpret §§ 81-8,213 and 81-8,227(1) “‘in
a consistent and commonsense fashion,’” a “‘fourth-quarter
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KOMAR v. STATE
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claimant[]’” must be provided with an additional 6 months
from the date he or she could have withdrawn a claim from
the Board to file a complaint in the district court. 249 Neb. at
872, 546 N.W.2d at 783, quoting Coleman v. Chadron State
College, 237 Neb. 491, 466 N.W.2d 526 (1991), overruled on
other grounds, Collins v. State, supra. The court noted that the
6-month extension should begin accruing from the first day on
which the claim may be withdrawn, rather than from the day
it was actually withdrawn, because a claimant should not be
permitted to
file a claim with the claims board just before 2 years
after the accrual of the cause of action, wait however
long until just before final disposition of the claim by
the claims board to withdraw the claim, and then receive
an additional 6 months in which to file suit in the dis-
trict court.
Hullinger v. Board of Regents, 249 Neb. at 873, 546 N.W.2d
at 783.
We read the Supreme Court’s rationale in Hullinger v. Board
of Regents, supra, to suggest that a claimant should not be per-
mitted to delay the action indefinitely by his or her own actions
or inactions. In fact, in Collins v. State, 264 Neb. at 272, 646
N.W.2d at 621, the Supreme Court specifically indicated that a
claimant should not be permitted to “allow a claim to remain
undecided by the board for as long as possible as a way for
the claimant to delay the filing of an action in district court.”
However, the court also indicated that “[w]hen a claimant
allows the claims board to reach a decision, any delay in the
process is beyond the control of the claimant.” Id.
[3] Given the Supreme Court’s decision in Hullinger v.
Board of Regents, supra, we conclude that a claimant, who
could have withdrawn a claim from the Board prior to the
expiration of the 2-year statute of limitations, should be given
an additional 6 months from the time the claimant could have
withdrawn the claim from the Board, rather than an additional
6 months from the time the claimant actually withdrew the
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KOMAR v. STATE
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claim, to file a complaint in the district court. However, also
given the rationale of Hullinger v. Board of Regents, supra, and
Collins v. State, supra, Komar could not delay the expiration of
the statute of limitations by choosing to delay the withdrawal
of her claim from the Board. The delay in this case is attribut-
able to Komar’s decision to delay the withdrawal of her claim.
Therefore, the rationale of Hullinger v. Board of Regents,
supra, is applicable.
Komar had until June 28, 2015, to file her complaint with
the district court. She did not file her complaint until July
15. Accordingly, Komar’s complaint was time barred and
we affirm the decision of the district court dismissing her
complaint.
[4] We acknowledge the apparent harshness of this result.
However, as the Supreme Court explained in Geddes v. York
County, 273 Neb. 271, 729 N.W.2d 661 (2007), it is our duty
to strictly construe the provisions of the State Tort Claims
Act in favor of the State and against the waiver of sovereign
immunity. In addition, we note that since the Supreme Court’s
decision in Hullinger v. Board of Regents, 249 Neb. 868, 546
N.W.2d 779 (1996), overruled on other grounds, Collins v.
State, 264 Neb. 267, 646 N.W.2d 618 (2002), the Legislature
has amended the State Tort Claims Act, but has not seen fit
to make any modifications which would address the decision
in that case. When judicial interpretation of a statute has not
evoked a legislative amendment, an appellate court presumes
that the Legislature has acquiesced in the court’s interpretation.
See Nebuda v. Dodge Cty. Sch. Dist. 0062, 290 Neb. 740, 861
N.W.2d 742 (2015).
Estoppel
Komar’s second assignment of error is that the district court
erred in failing to find that even if her complaint was filed
after the statute of limitations had expired, the State is estopped
from asserting the time bar as a defense. Upon our review, we
conclude that Komar’s assertion lacks merit.
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[5] The equitable doctrine of estoppel in pais may be
applied to prevent a fraudulent or inequitable resort to a statute
of limitations, and a defendant may, by his or her representa-
tions, promises, or conduct, be so estopped where the other
elements of estoppel are present. See Hullinger v. Board of
Regents, supra.
The elements of equitable estoppel are, as to the party
estopped: (1) conduct which amounts to a false representation
or concealment of material facts, or at least which is calculated
to convey the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently attempts
to assert; (2) the intention, or at least the expectation, that such
conduct shall be acted upon by, or influence, the other party
or other persons; and (3) knowledge, actual or constructive, of
the real facts. As to the other party, the elements are: (1) lack
of knowledge and of the means of knowledge of the truth as to
the facts in question; (2) reliance, in good faith, upon the con-
duct or statements of the party to be estopped; and (3) action
or inaction based thereon of such a character as to change the
position or status of the party claiming the estoppel, to his
injury, detriment, or prejudice. Id.
Komar argues in her brief on appeal that the State should
be estopped from asserting the statute of limitations as a
defense because of the Board’s delay in hearing her case.
Although she filed her claim with the Board in June 2014, by
June 2015, the Board still had not set a hearing for her claim.
As such, Komar indicates that she withdrew her claim from
the Board in order that her complaint could be filed in the
district court.
We first note that it is not clear from our record whether
Komar argued before the district court that the State should
be estopped from asserting the statute of limitations defense.
It is clear that the district court, in its February 2016 order,
does not discuss or rule on the issue of estoppel. Generally, an
appellate court will not consider for the first time on appeal
issues not properly raised in the pleadings nor litigated at trial.
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Leseberg v. Meints, 224 Neb. 533, 399 N.W.2d 784 (1987).
However, we conclude that in this case, even if we were to
rule on the merits of Komar’s estoppel argument, her argument
would fail. Komar chose to withdraw her claim from the Board
on July 14, 2015. There is nothing to suggest that the Board
took any action to influence Komar’s decision to withdraw the
claim or to make her believe that it would not raise the statute
of limitations as a defense. Komar could have chosen to wait
for the Board to rule on her claim. Had she chosen to do so,
then she would have had an additional 6 months from the date
of that ruling to file her complaint in the district court. In that
instance, any delay in the proceedings would have been attrib-
uted to the Board, rather than to Komar. See Collins v. State,
264 Neb. 267, 646 N.W.2d 618 (2002).
CONCLUSION
We affirm the decision of the district court. Komar’s com-
plaint was not timely filed in the district court, and as a result,
her cause of action is time barred.
A ffirmed.