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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
KOMAR v. STATE
Cite as 299 Neb. 301
Stacey L. Komar, appellant, v.
State of Nebraska et al., appellees.
___ N.W.2d ___
Filed March 16, 2018. No. S-16-127.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Tort Claims Act: Limitations of Actions. Before suit can be filed
under the State Tort Claims Act, a claimant must submit the claim in
writing to the Risk Manager within 2 years after the claim accrued.
4. ____: ____. Generally speaking, a claimant cannot file suit under the
State Tort Claims Act until the Risk Manager or State Claims Board
makes a final disposition of the claim. However, if the board has not
made final disposition of a claim after 6 months, the claimant is permit-
ted to withdraw the claim and file suit.
5. ____: ____. The 2-year limitations period referenced in Neb. Rev. Stat.
§ 81-8,227(1) (Reissue 2014) governs not just the time for submitting
claims to the Risk Manager, but also the time for beginning suit under
the State Tort Claims Act.
6. Tort Claims Act: Limitations of Actions: Notice. Under Neb. Rev.
Stat. § 81-8,227(1) (Reissue 2014), the time to begin suit under the State
Tort Claims Act shall be extended for a period of 6 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 Neb. Rev. Stat. § 81-8,213 (Reissue
2014) if the time to begin suit would otherwise expire before the end of
such period.
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KOMAR v. STATE
Cite as 299 Neb. 301
7. ____: ____: ____. Claimants who allow the State Claims Board to reach
a decision must file suit on the claim within 2 years after the claim
accrued, or within 6 months after the board mails notice of final disposi-
tion, whichever occurs later. On the other hand, claimants who withdraw
their claim must file suit on the claim within 2 years after the claim
accrued, or within 6 months after the first date on which the claim could
have been withdrawn, whichever occurs later.
Petition for further review from the Court of Appeals,
Pirtle, Bishop, and A rterburn, Judges, on appeal thereto from
the District Court for Douglas County, W. Russell Bowie III,
Judge. Judgment of Court of Appeals affirmed.
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.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Stacy, J.
This case involves a dispute over the calculation of the
2-year statute of limitations under the State Tort Claims Act
(STCA).1 The district court for Douglas County dismissed
the action as time barred, and the Nebraska Court of Appeals
affirmed.2 On further review, we agree the claim is time barred
and affirm the dismissal.
BACKGROUND
According to the allegations of the complaint, on January
15, 2013, Stacey L. Komar learned that an employee of the
State of Nebraska had accessed her electronically stored medi-
cal records without her permission. Approximately 17 months
1
See Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014).
2
Komar v. State, 24 Neb. App. 692, 897 N.W.2d 310 (2017).
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KOMAR v. STATE
Cite as 299 Neb. 301
later, on June 27, 2014, Komar presented a tort claim to the Risk
Manager for the State Claims Board alleging the employee had
invaded her privacy by accessing her medical records without
permission. Under the STCA, Komar had to present her claim
to the Risk Manager as a prerequisite to bringing suit.3
Komar’s claim remained pending before the State Claims
Board for more than 1 year without final disposition. On July
14, 2015, she withdrew the claim. The next day, Komar filed
a complaint in the Buffalo County District Court, alleging
invasion of privacy and naming as defendants the State of
Nebraska, the Board of Regents of the University of Nebraska,
and Nebraska Medicine (collectively the State).
District Court Action
The State moved to dismiss Komar’s complaint, arguing
it was barred by the STCA statute of limitations set out in
§ 81-8,227(1). That statute provides:
[E]very tort claim permitted under the [STCA] 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 claim-
ant by the Risk Manager or State Claims Board as to the
final disposition of the claim or from the date of with-
drawal of the claim under section 81-8,213 if the time
to begin suit would otherwise expire before the end of
such period.
This court has held that the 2-year limitations period refer-
enced in § 81-8,227(1) governs not just the time for submit-
ting claims to the Risk Manager, but also the time for begin-
ning suit.4
3
See §§ 81-8,212 and 81-8,213.
4
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).
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KOMAR v. STATE
Cite as 299 Neb. 301
In analyzing the timeliness of Komar’s complaint, the dis-
trict court found her claim accrued on January 15, 2013—the
date she learned of the alleged invasion of privacy. It reasoned
that under § 81-8,227(1), Komar had until January 15, 2015, to
file her complaint, unless the 6-month extension applied. No
party has disputed either the accrual date or this preliminary
calculation of the applicable limitations period.
Komar claimed she was entitled to the 6-month exten-
sion under § 81-8,227(1) and argued the extension began
to run on the date she actually withdrew her claim, so her
complaint filed the next day would be timely. The State
argued that under this court’s holdings in Coleman v. Chadron
State College5 and Hullinger v. Board of Regents,6 the
6-month extension began to run on the first day Komar could
have withdrawn her claim, not on the date she actually with-
drew it.
In both Coleman and Hullinger, this court held:
“[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.”7
The district court found the first day Komar could have with-
drawn her claim to begin suit was December 28, 2014, and,
applying the rationale from Coleman and Hullinger, calculated
that the last date on which Komar could timely have filed
suit was June 28, 2015. Because she did not file suit until
July 15, the district court dismissed her action as time barred.
Komar appealed.
5
Coleman v. Chadron State College, 237 Neb. 491, 466 N.W.2d 526 (1991),
overruled on other grounds, Collins, supra note 4.
6
Hullinger, supra note 4.
7
Id. at 871-72, 546 N.W.2d at 783 (emphasis supplied) (quoting Coleman,
supra note 5).
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KOMAR v. STATE
Cite as 299 Neb. 301
Court of A ppeals
The Court of Appeals affirmed.8 Like the district court, it
reasoned Komar’s claim accrued on January 15, 2013, and
she had 2 years thereafter to bring suit unless the 6-month fil-
ing extension of § 81-8,227(1) applied. In addressing whether
Komar was entitled to the filing extension, the Court of
Appeals reasoned:
Komar . . . filed her claim with the [Risk Manager] on
June 27, 2014, a little more than 17 months after her
claim accrued, but still within the 2-year statute of limi-
tations. Pursuant to the language of § 81-8,213, Komar
could have withdrawn her claim from the [State Claims]
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, pur-
suant 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 limita-
tions had expired.9
Like the district court, the Court of Appeals calculated June
28, 2015, was the last date on which Komar could timely have
filed suit. Because she did not file suit until July 15, the Court
of Appeals concluded Komar’s action was time barred and
affirmed the district court’s dismissal.
Komar petitioned for further review, urging this court to
overrule our holdings in Coleman and Hullinger and interpret
§ 81-8,227(1) to authorize a 6-month filing extension that
runs from the date a claim is actually withdrawn, rather than
the first date on which the claim could have been withdrawn
8
Komar, supra note 2.
9
Id. at 696, 897 N.W.2d at 313-14.
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KOMAR v. STATE
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under § 81-8,213. We granted further review to address the
proper application and computation of the 6-month filing
extension under this factual scenario.
ASSIGNMENT OF ERROR
On further review, Komar assigns several errors which we
consolidate into one: The Court of Appeals erred in concluding
her complaint was time barred under § 81-8,227(1).
STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.10
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.11
ANALYSIS
Statutory Background
[3,4] Tort claims against the State are governed by the
STCA. Before suit can be filed under the STCA, a claimant
must submit the claim in writing to the Risk Manager within
2 years after the claim accrued.12 Generally speaking, a claim-
ant cannot file suit under the STCA until the Risk Manager or
State Claims Board makes a final disposition of the claim.13
However, if no final disposition of a claim has been made after
6 months, the claimant is permitted to withdraw the claim and
file suit under the STCA.14
10
Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551
(2018).
11
Id.
12
§ 81-8,227(1).
13
§ 81-8,213.
14
Id.
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[5,6] The 2-year limitations period referenced in
§ 81-8,227(1) governs not just the time for submitting claims
to the Risk Manager, but also the time for beginning suit under
the STCA.15 Under certain circumstances, the STCA provides
a 6-month extension for beginning suit:
The time to begin suit under [the STCA] 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.16
Overview of Case Precedent
This court has had several opportunities to interpret and
apply the 6-month filing extension of § 81-8,227(1). We have
addressed its application when the State Claims Board makes
a final disposition17 and when a claimant withdraws the claim
to begin suit, as Komar did here.18
This court first interpreted § 81-8,227 in Coleman v. Chadron
State College.19 In that case, the tort claim was submitted to
the State Claims Board 22 months after the cause of action
accrued. Ten months later, the board had not made final dis-
position, so the claimant withdrew the claim and, a few weeks
later, filed suit in district court. The district court dismissed the
action as time barred, and the claimant appealed.
15
Hullinger, supra note 4.
16
§ 81-8,227(1).
17
See, Collins, supra note 4, disapproved on other grounds, Geddes v.
York County, 273 Neb. 271, 729 N.W.2d 661 (2007); Sharkey v. Board
of Regents, 260 Neb. 166, 615 N.W.2d 889 (2000), abrogated on other
grounds, A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784
N.W.2d 907 (2010).
18
See, Hullinger, supra note 4; Coleman, supra note 5.
19
Coleman, supra note 5.
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KOMAR v. STATE
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We observed that under § 81-8,227(1), the 2-year limita-
tions period “shall be extended for a period of six months
from . . . the date of withdrawal of the claim under section
81-8,213 if the [2-year period] to begin suit would other-
wise expire before the end of such period.” We provided an
example of how the 6-month extension would work in a typi-
cal case:
If, for example, one filed his or her claim in the 17th
month after the claim accrued and withdrew the claim in
the 23rd month after it accrued, § 81-8,227 provides that
he or she is given an additional 6 months in which to file
suit, as the 2-year period of limitation would otherwise
expire during the ensuing 6 months.20
In Coleman, the defendant argued the claimant was not enti-
tled to the 6-month extension, because by the time the claimant
withdrew his claim to file suit, the 2-year limitations period
already had expired. This court recognized the “dilemma”
confronted by those who submitted claims to the State Claims
Board 18 months or more after their claim accrued, but within
the 2-year limitations period.21 We described these claim-
ants as “fourth quarter” claimants,22 and we observed that the
interplay between §§ 81-8,213 and 81-8,277(1) presented a
predicament for such claimants:
The source of [the claimant’s] predicament is
§ 81-8,213. As stated, that section mandates that before
suit may be filed in court, a claim may not be withdrawn
from the State Claims Board for at least 6 months. In
order to comply with § 81-8,213, [the claimant], who
filed his claim with the board in the 22d month after his
claim accrued, was prevented from filing his lawsuit in
the district court before the 24-month statute of limita-
tions ran. In essence, one statute prevents filing of a
20
Id. at 499, 466 N.W.2d at 532.
21
Id. at 500, 466 N.W.2d at 532.
22
Id. at 501, 466 N.W.2d at 533.
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claim in court and another requires filing of that same
claim in court. This appears to be a classic example
of the “right hand not knowing what the left hand
is doing.”23
We applied the statutory rule of construction that a court will,
if possible, avoid construing a statute in a way that leads to
absurd, unjust, or unconscionable results,24 and we held:
A statutory scheme which precludes one from with-
drawing a claim from the State Claims Board and thereby
prevents that person from filing suit before the statute of
limitations runs leads to absurd, unjust, or unconscion
able results. We, therefore, hold that 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. This interpretation ensures that effect is
given to the legislative intent embodied in §§ 81-8,213
and 81-8,227 and that both are applied in a consistent
and commonsense fashion. Furthermore, fourth-quarter
claimants are given the same opportunity as those who
file earlier to withdraw their claim and file suit within 6
months thereafter.25
Because the claimant in Coleman filed his lawsuit within 6
months after the first day on which he could have withdrawn
his claim, we found the 6-month extension applied to render
his lawsuit timely.
Five years later, in Hullinger v. Board of Regents,26 we
applied the same rule to a different factual scenario. The
23
Id. at 499, 466 N.W.2d at 532.
24
See, Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014); In re Boundaries
of McCook P.P. Dist., 217 Neb. 11, 347 N.W.2d 554 (1984).
25
Coleman, supra note 5, 237 Neb. at 501, 466 N.W.2d at 533.
26
Hullinger, supra note 4.
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claimant in Hullinger submitted his claim to the State Claims
Board just 2 days before the end of the 2-year limitations
period. He let the claim pend for more than a year before he
withdrew it, and 51⁄2 months later, he filed suit in district court.
We reiterated the rule, announced in Coleman, that fourth-
quarter claimants have 6 months from the date the claim
first could have been withdrawn from the board in which to
begin suit.
But unlike the claimant in Coleman, we found that by the
time the claimant in Hullinger withdrew his claim and filed
suit, the 6-month extension period had already expired. The
claimant in Hullinger urged an interpretation of § 81-8,227(1)
that would allow claimants to withdraw a claim at any point
after the 6-month repose period and still receive an additional
6 months after withdrawal to begin suit. We rejected that inter-
pretation as inconsistent with Coleman and contrary to the
purposes of a statute of limitations. We noted such a construc-
tion would effectively allow claimants to extend the 2-year
limitations period for as long as they wanted and then receive
an additional 6 months to file suit once they finally withdrew
the claim. We observed that “[t]he mischief which a statute
of limitations is intended to remedy is general inconvenience
resulting from delay in assertion of a legal right which it is
practicable to assert.”27
In Sharkey v. Board of Regents,28 we again considered the
applicability of the 6-month extension under § 81-8,822(1). In
that case, the claimants’ cause of action accrued on October
6, 1993. The claimants submitted their first claim to the State
Claims Board on February 15, 1994, and received notice of the
board’s denial roughly 4 months later on June 13, 1994. They
submitted a second claim on January 24, 1995, and that claim
was denied on June 2, 1995. Thereafter, the claimants filed suit
on their claims in district court on September 20, 1995.
27
Id. at 873, 546 N.W.2d at 784.
28
Sharkey, supra note 17.
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Although suit had been filed within 2 years of the date the
claim accrued, the district court dismissed the suit as untimely,
reasoning the claimants had not begun suit within 6 months
after receiving notice that their first claim had been denied. We
noted that the rule announced in Coleman was an extension
of time in which to bring suit, not a limitation as the district
court concluded. Because the claimants in Sharkey had filed
suit within 2 years of the accrual of their claim, we held their
suit was timely, and the 6-month extension under § 81-8,227(1)
was inapplicable.
And finally, in Collins v. State,29 we had the opportunity to
consider how the 6-month extension under § 81-8,227(1) is
calculated when a claimant elects not to withdraw the claim
after 6 months and instead waits for the State Claims Board
to make a final disposition. The claimant in Collins submit-
ted her claim to the board 6 days before the 2-year limitations
period expired. More than 7 months later, the board rejected
the claim. The claimant in Collins filed suit on the claim just
over 5 months later. The district court applied the reason-
ing of Coleman and Hullinger, and found the suit was time
barred because it had been filed more than 6 months after
the first date on which the claim could have been withdrawn.
On appeal, we explained that our holdings in Coleman and
Hullinger do not apply when a claimant allows the board to
reach a decision:
Under the plain language of § 81-8,227, a claimant
has 6 months to file suit after notice of the denial of the
claim is mailed by the claims board. The reasoning of
Coleman and Hullinger does not apply to claims that are
decided by the claims board. Accordingly, we hold that
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 2 years as provided
by § 81-8,227(1), has 6 months to file suit from the date
29
Collins, supra note 4.
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the board gives written notice to the claimant as to the
final disposition of the claim. . . . Because [the claimant]
filed suit within 6 months after the claims board denied
her claim, her suit was not time barred.30
[7] These cases illustrate the following general rules for cal-
culating the statute of limitations under the STCA. Claimants
who allow the State Claims Board to reach a decision must
file suit on the claim within 2 years after the claim accrued, or
within 6 months after the board mails notice of final disposi-
tion, whichever occurs later.31 On the other hand, claimants
who withdraw their claim must file suit on the claim within 2
years after the claim accrued, or within 6 months after the first
date on which the claim could have been withdrawn, whichever
occurs later.32
Komar’s Action Is Time Barred
Applying these principles to the present case, we agree
with the district court and the Court of Appeals that Komar’s
suit is time barred. Komar’s claim accrued on January 15,
2013. She filed her claim with the Risk Manager for the State
Claims Board on June 27, 2014, a little more than 17 months
after it accrued and well within the 2-year statute of limita-
tions. Section 81-8,213 prevented Komar from withdrawing
her claim for a period of 6 months.
Nebraska has a statutory rule for computing time,33 and we
have held this rule governs time calculations of the 6-month
time period under the STCA.34 As such, the 6-month period
is computed by excluding the day the claim was filed, and
including the last day of the period unless it falls on a
30
Id. at 272, 646 N.W.2d at 621.
31
Id.; Sharkey, supra note 17.
32
See, Hullinger, supra note 4; Coleman, supra note 5.
33
See Neb. Rev. Stat. § 25-2221 (Reissue 2016).
34
See Geddes, supra note 17.
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Saturday, Sunday, or a day on which the courts of record may
legally be closed, in which event the period shall run until
the end of the next day on which the courts of record will be
open.35 Using this computation, the district court and Court of
Appeals found the first day on which Komar could have with-
drawn her claim was December 28, 2014. However, because
that date fell on a Sunday, the first date on which Komar
could have withdrawn her claim was actually December
29, 2014.
If Komar had withdrawn her claim on December 29, 2014,
she would have been entitled to the 6-month filing extension
under the plain language of § 81-8,227(1), because the 2-year
statute of limitations would otherwise have expired during the
ensuing 6-month period. Indeed, the typical factual scenario
Justice Fahrnbruch described in Coleman in 1991 is precisely
how the 6-month extension would have functioned in the pres-
ent case if Komar had withdrawn her claim on the first date
allowed by § 81-8,213.
But Komar did not withdraw her claim until much later,
on July 14, 2015, and did not file suit until July 15. By that
time, the 2-year statute of limitations had expired, as had the
6-month extension under § 81-8,227. The district court and
Court of Appeals correctly found this action was time barred.
Komar urges this court to overrule our holdings in Coleman
and Hullinger, and instead interpret § 81-8,227(1) to autho-
rize a 6-month filing extension that runs from the date a claim
is actually withdrawn, rather than the first date on which the
claim could have been withdrawn under § 81-8,213. For the
same reasons we rejected this interpretation in Hullinger,
we reject it here. Such a construction would allow claim-
ants to extend the 2-year limitations period for as long as
they wanted and then receive an additional 6 months to file
suit once they finally withdrew the claim. In addition, the
35
Id.
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expansive interpretation urged by Komar runs contrary to the
settled rule that statutes purporting to waive the State’s pro-
tection of sovereign immunity are strictly construed in favor
of the sovereign.36
CONCLUSION
For the foregoing reasons, we affirm the decision of the
Court of Appeals.
A ffirmed.
K elch, J., not participating in the decision.
Wright, J., not participating.
36
See Amend, supra note 10.