Trent Ex Rel. Trent v. Board of County Commissioners

PER CURIAM.

This consolidated appeal is taken from the Minute Orders of the District Court of Johnston County, each dated October 22, 1982, sustaining identical special demurrers filed in three separate cases and rendering moot other motions and demurrers filed therein. Thereafter, the District Court issued Orders Nunc Pro Tunc correcting the prior orders to show that the actions were dismissed pursuant to the sustention of the special demurrers.

The three claims in district court arose out of a single accident which occurred on October 23, 1981. Robert Trent, Ronald Trent and Douglas Lowe (appellants), all minors, were injured when the truck in which they were riding left the road as a result of a washed out bridge. All three boys received severe injuries in the accident. The road and the bridge are owned and maintained by the Board of County Commissioners of Johnston County (County or appellee).

On November 12, 1981, the law firm of Harris, Ghostbear and Sell mailed written notice of the claims asserted on behalf of appellants to the County Clerk of Johnston County pursuant to the Political Subdivision Tort Claims Act, 51 O.S. 1981 § 151, et seq.1

On January 25, 1982, the County mailed the appellants’ attorneys a letter requesting their attendance at a meeting of the County Commissioners on February 1, 1982. On February 1, 1982, one of the attorneys representing appellants met with the County. At this meeting, the County discussed the claims with the attorney. The assistant district attorney for the County requested him to submit medical documents and other records concerning the claims. Nothing in the record reflects that the County either denied or approved appellants’ claims at this meeting.

On March 1, 1982, appellants were notified that their claims were denied. Thereafter, on or about April 28, 1982, the appellants’ attorneys withdrew their representation of appellants. Appellants retained another law firm which was furnished with the letter dated March 1, 1982. They were also given a letter from the former attorneys advising that they had been given notification of the denial of the claims by letter dated March 1, 1982.

On August 25,1982, law suits were filed on behalf of appellants in the District Court of Johnston County. Appellee filed *617special and general demurrers and motions to dismiss in each of the three cases. Ap-pellee demurred on the ground that appellants’ claims were barred by 51 O.S. 1981 §§ 156 and 157 for failure to initiate their claims within six months of the denial of the claims by operation of law. The County contends the claims were denied by operation of law 90 days after the County was notified of the claims. They were notified on November 12, 1981, thereby making February 11,1982, the date from which the six month filing period began to run.

The issue on appeal is:

Whether the claims in district court were timely filed within six months after notification of denial of the claims pursuant to 51 O.S. 1981 §§ 156 and 157.

Appellants ask this Court to reverse the district court’s orders sustaining appellee’s special demurrers filed in each of the three cases. As stated above, the issue to be resolved is whether the six month statute of limitations as provided in 51 O.S. 1981 § 156(C) begins to run upon actual notice of the denial of the claims or upon the expiration of 90 days when the claim is automatically denied. The crucial dates are February 11, 1982 and March 1, 1982. February 11th is the date the 90 day waiting period expired and the claims were denied by operation of law. March 1st is the date appellants received actual notice by way of letter that the claims were denied. Appellants contend that March 1st is the dispositive date, thereby making the suits filed on August 25, 1982 within the six month filing period. Appellee contends that February 11th is the dispositive date because the County failed to approve each of the claims in their entirety within 90 days, thereby triggering the second sentence in § 157.

We find the district court properly determined February 11, 1982, when the claims of appellants were denied by operation of law under § 157, as the date by which the six month statute of limitations began to run. The sustention of the special demurrers was proper and the dismissal of the cases was correct because appellants commenced each of their three separate lawsuits on August 25, 1982, 14 days after the six month statutory filing time had run.

On its face, § 157 provides for the automatic denial of a claim after 90 days if it has not been denied, approved or settled at an earlier date. None of these circumstances are present in this case.

The recent case of Whitley v. Oologah S.D. 1-4 of Rogers Cty., 741 P.2d 455 (Okl.1987), is factually distinguishable from the present matter. Whitley involved a situation where there had been a partial settlement and partial approval of the claim shortly before the expiration of the 90 day period. Also, the political subdivision continued to promise to settle the remainder of the claim up until such time as the suit was filed well after the six month time limit would have expired had the 90 day period not been tolled. This Court held the action was timely filed within six months of the appointed date for negotiations. Here, there was no partial settlement or partial approval of the claim, nor any promise to settle on the part of the County. At the February 1st meeting held during the 90 day period, the County merely requested the appellants’ attorney to submit medical documents and other records regarding the claims. Appellants failed to submit the requested records to the County. Shortly thereafter, the County gave notice of denial of the claims to appellants. Consequently, we conclude that Whitley is distinguishable from the case before us and is not dispositive.

Regardless of the fact appellants received actual notice of the denial of the claims on March 1st, the attorneys representing appellants were imputed with the knowledge that as of February 11th the claims were denied by operation of law. Title 51 O.S. 1981 § 157 provided:

“Within ninety (90) days after receiving the filing of a claim, the clerk of the political subdivision shall notify the claimant in writing of the approval or denial of the claim. A claim is denied if the political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the interested parties have reached a settlement be*618fore the expiration of that period. A person may not initiate a suit against a political subdivision or employee whose conduct gave rise to the claim unless the claim has been denied in whole or in part.” (emphasis added).

Upon a literal reading of this statute, the second sentence controls the disposition of the present matter because the clerk of the County did not notify appellants of the approval or denial of their claims within 90 days after receiving the filing of each claim. Each claim was not approved in its entirety within 90 days; therefore, each claim was deemed denied upon the expiration of the 90 day period. Appellants notified appellee of their claims on November 12, 1982, thereby making February 11, 1982, the date the claims were denied by operation of law, the dispositive date in which the statute of limitations had begun to run.

Title 51 O.S. 1981 § 156(C) provided:

“The written notice of claim shall state the time, place and circumstances of the claim and the amount of compensation or other relief demanded. Failure to state either the time, place, circumstances and amount of compensation demanded shall not invalidate the notice unless the claimant declines or refuses to furnish such information within ninety (90) days after demand by the political subdivision. No action for any cause arising under this act shall be maintained unless valid notice has been given and the action is commenced within six (6) months after notification of denial of the claim by the clerk of the political subdivision. The time for giving written notice of claim does not include the time during which the person injured is unable due to incapacitation from the injury to give such notice, not exceeding ninety (90) days of incapacity.” (emphasis added).

It is undisputed that appellants complied with the notice provision of this section. However, they did not comply with the time requirement by which to commence an action. Appellants erroneously contend that March 1st is the dispositive date because, as provided in subsection C, it was the date of notification of the denial. Albeit March 1st is the day appellants were actually notified; the language in § 156(C) must be read in conjunction with, and not independent of, § 157. Section 156(C) commences the six month limitations period upon notification of denial of the claim by the clerk of the political subdivision; however, as there was no approval or denial of the claims within the mandatory 90 day waiting period, § 157 provides the six month limitations period commences at the expiration of 90 days.

Our interpretation of 51 O.S. 1981 §§ 156(C) and 157 is in accord with this Court’s pronouncement in Neal v. Blackwell, 670 P.2d 587 (Okl.1983). The issue in Neal centered around when the six month statute of limitations begins to run under the Political Subdivision Tort Claims Act. Appellant in Neal contended that strict compliance with the Tort Claims Act was not required when the County failed to notify the claimant in writing of approval or denial of the claim within 90 days after receiving notice of the claim. This Court disagreed with appellant’s construction of § 157. The Court stated: “Since there was no approval of the claim during the 90-day period from [date] ..., the claim was deemed denied as of [date] ... [the expiration of this 90 day period] and the statute of limitations of section 156(C), supra, began to run.” Id. at 588.

Similarly, this Court in Lucas v. Ind. Public School Dist. No. 35, 674 P.2d 1131 (Okl.1983), gave a “reasonable and sensible” construction to 51 O.S. 1981 §§ 156(C) and 157. Id. at 1134. The Court stated that despite the language in § 157 regarding notice of denial, if there is no approval of the claim by the political subdivision within 90 days, “the six month limitation of section 156(C) is activated.” Id. at 1133. Accordingly, given the Court’s construction of section 156 in Lucas, appellants herein should not have relied on the date the clerk actually gave notice of denial, March 1st, as the date by which the statute of limitations begins to run.

From February 11, 1982, appellants in the instant matter had six months in which *619to file their lawsuit. Despite any negotiations or “possibilities” of settlement, § 157 on its face, deems a claim denied after 90 days unless the political subdivision approves the claim or the parties have reached a settlement, neither of which is present in this case.

Appellants assert that strict compliance with the statute is not necessary as long as there is substantial compliance citing Duesterhaus v. City of Edmond, 634 P.2d 720 (Okl.1981) and Reirdon v. Wilburton Board of Education, 611 P.2d 239 (Okl.1980). Both of these cases pertain to substantial compliance with the notice requirement of 51 O.S. 1981 § 156(B). The present case, on the other hand, involves compliance with the filing requirement of §§ 156(C) and 157. This Court has required more than substantial compliance with the filing requirement and the statute of limitations. Neal, supra, and Lucas, supra. We believe the statutes should be interpreted to mean that where a person does not hear from a political subdivision either approving or denying a claim within 90 days, the claim is automatically denied. The apparent purpose of this 90 day limit on a political subdivision to either approve or deny a claim is for the benefit of plaintiffs. A political subdivision cannot needlessly delay the filing of a claim by a plaintiff in district court beyond 90 days.

The district court’s minute orders sustaining the special demurrers and, as corrected by subsequent orders, dismissing each of the three cases are AFFIRMED.

DOOLIN, C.J., HARGRAVE, V.C.J., and HODGES, SIMMS, and WILSON, JJ., concur. LAVENDER, J., concurs in result. OPALA, KAUGER and SUMMERS, JJ., dissent.

. The Political Subdivision Tort Claims Act is superceded by The Governmental Tort Claims Act, 1984 Okla.Sess.Laws, Ch. 226, §§ 1 through 18 and codified as 51 O.S.Supp.1984 §§ 151 through 171, effective October 1, 1985.