dissenting.
I respectfully dissent.
As Judge Julius Bissell once observed,
The algebraic representation of the unknown quantity, %’ probably well expresses the value and usefulness of a dissenting opinion in judicial proceedings. The universality of the custom, coupled with the importance of the present inquiry, has led to the labor, and the possible incumbrance of the Reports with this opinion.
Hockaday v. Board of County Commissioners, 1 Colo.App. 362, 381, 29 P. 287, 293 (1892).
*258The majority has held that the notice required by § 24-10-109(3), C.R.S. (1988 Repl.Vol. 10A) is effective upon mailing by first class mail. Its conclusion is based on Lafitte v. State Highway Department, 885 P.2d 338 (Colo.App.1994) which is based, in my opinion, on a misreading of Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). While the supreme court in Trinity stated that the notice was effective upon mailing, the notice in Trinity was, in fact, mailed by registered mail as specified in § 24-10-109(3).
In Lafitte, the notice was originally timely mailed with certified mail labels attached but insufficient postage was affixed. The State Highway Department refused to pay the postage due and the notice was not delivered. The notice was returned to the sender and was again dispatched, now untimely, with proper postage affixed. There was no dispute as to when the notice was originally mailed. The court relied, in part, on Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo.1990) which was, in my view, misplaced. In Woodsmall, the issues related to the contents of the notice, or the manner in which the information required by statute was provided, not the timeliness or method of service.
The statute states that: “Such notice shall be effective upon mailing by registered mail or upon personal service.” Section 24-10-109(3). The majority opinion, in my view, amends a statute which does not require construction and treats first class mail as equivalent to registered or certified mail. See § 2-4-401(12), C.R.S. (1980 Repl.Vol. IB).
In addition, as the supreme court points out in Woodsmall, the General Assembly amended the Governmental Immunity Act in 1986 deleting the phrase “substantial compliance” and substituting “[Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.” See Colo.Sess.Laws 1986, ch. 166, § 24-10-109(1) at 877. While strict compliance may not be required as to all aspects of the notice, certainly more than substantial compliance is required. And if, as here, the statute is specific as to the time within which notice must be given and the manner of service, there can really be no real distinction between strict or substantial compliance.
I would reverse and remand for a determination as to whether personal service was perfected in a timely manner. In the event the trial court determines that personal service was not timely perfected, I would order the case dismissed.