Trent Ex Rel. Trent v. Board of County Commissioners

OPALA, Justice,

with whom KAUGER, Justice, joins, dissenting.

The court pronounces today that in this case the § 156(C)1 six-month period to bring an action was triggered when the ninety-day time interval provided in 51 O.S. 1981 § 157 2 expired; on that day the plaintiffs’ claims were automatically rejected. The court concludes that judgment was properly rendered for the County because the plaintiffs failed to bring suit within six months after their claims stood denied by operation of law.

I can neither accede to today’s judgment nor concur in the court’s pronouncement. I would hold that the § 157 ninety-day interval was enlarged by the County’s continued consideration of the claims as evidenced by its lawyer’s rejection letter sent after the expiration of the ninety-day period.

DATES CRITICAL TO THE CONTROVERSY

The harm in contest occurred October 23, 1981; written notice of the claims was timely mailed to the Clerk of Johnston County on November 12, 1981.3

The County’s January 25, 1982 letter requested the plaintiffs’ attendance at a County Commissioners’ meeting on February 1, 1982. At this meeting the district attorney asked plaintiffs’ counsel to submit certain medical documents and information concerning the claims. On March 1, 1982 the County notified the plaintiffs by letter that their claims were denied. The plaintiffs’ brought individual actions against the County on August 25, 1982.

The court today rules that the § 156(C) six-month time limit commenced running on February 11, 1982 — when the ninety-day period expired — and not on March 1, 1982 when the claims were rejected by letter of “notification”. I would hold that the

*620§ 156(C) six-month interval began when the County’s letter of the claims’ rejection was sent to the plaintiffs' lawyer.

I

THE TWO CRITICAL TIME BARS IN THE POLITICAL SUBDIVISION TORT CLAIMS ACT ARE DISTINCT IN THEIR LEGAL CHARACTERISTICS

The Political Subdivision Tort Claims Act [Act] 4 in force at the time of plaintiffs’ injurious event5 provided in 51 O.S.1981 § 156(B)6 and (C)7 and in § 157 8 two conceptually distinct time bars.9

The terms of § 156(B) and (C) clearly evinced legislative intent to bar the right to recover under the Act unless notice has been given to the governmental tortfeasor and the action is commenced within six months after notification of the claim’s rejection. The two time limits in § 156(B) and (C) clearly constitute a condition on the exercise of the claimant’s right and hence form a substantive element of the claim. The terms of § 157, on the other hand, affect only the remedy. Because the latter provisions prescribe a ninety-day interval during which no suit may be filed, they are more aptly characterized as a “negative statute of limitation” — a lapse of time that does not bring about the loss of a right and may hence be extended by tolling, waiver or estoppel.10

Here, the § 156(B) time limit that operated upon the right was met; the governmental subdivision did receive a timely notice of the plaintiffs’ claims. Only the § 157 interval which affects the remedy is implicated in the controversy before us now. Like other statutes of limitation, the § 157 time bar can be tolled by the obligor’s conduct. It was clearly tolled here by the March 1, 1982 notification recognizing that the County had kept the claims under its consideration in an unrejected status beyond the statutory ninety-day interval for their allowance or denial.

II

THE DATE OF THE WRITTEN DENIAL IS THE § 156(C) “NOTIFICATION” THAT MARKS THE BEGINNING OF THE SIX-MONTH PERIOD TO BRING AN ACTION

Although the beginning of the § 156(C) interval to bring suit doubtless was designed to end the § 157 period during *621which no action may be filed,11 the commencement date of the § 156(C) six-month limit need not coincide with the ninetieth day after notice of claim is received. If rejection comes earlier than ninety days after notice, the limit is triggered sooner; and it will start later when, as here, the “notification” prescribed by § 156(C) for the claim’s denial occurs after the ninetieth day. Nothing in the statute either prohibits or renders nugatory a claim’s written denial that takes place after the lapse of ninety days. In short, one whose notice has met with the subdivision’s silence for ninety days is set free to sue at once; but if silence happens to be broken by a later denial in writing, the “tardy” rejection may not be deemed legally inefficacious to trigger for the claim the § 156(C) six-month time limit that is intended to run from the “notification of denial of the claim” [emphasis added], rather than from the end of an antecedent ninety-day silence.12

I would hold that the expiration of the ninety-day period will not automatically trigger the commencement of a six-month time limit where, as in the present case, the defending entity unequivocally indicates by letter sent after the expiration of the ninetieth day that the claim stood under active consideration and conscious recognition for a period beyond the § 157 limit. The date of the tortfeasor’s actual rejection notice by letter must control over the automatic statutory cutoff as the point of “notification” in the sense that word is used in § 156(C).

Because the County’s March 1st letter clearly indicates the County acted on the claims after the § 157 period had lapsed, I would hold today that the ninety-day interval stood enlarged and that the date of the letter — March 1, 1982 — operated as the beginning of the six-month period to bring an action against the County. The plaintiffs’ August 25, 1982 lawsuits were hence timely commenced.

. See footnote 12 infra for the pertinent terms of 51 O.S. 1981 § 156(C).

. The terms of 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 before the expiration of that period....” [Emphasis added.]

.The County admits its timely receipt of the notice.

. 51 O.S. 1981 §§ 151 et seq.

. The Political Subdivision Tort Claims Act under consideration in this case was replaced by The Governmental Tort Claims Act (OkLSess. Laws 1984, Ch. 226, eff. October 1, 1985), 51 O.S.Supp.1984 §§ 151 et seq.

. The terms of 51 O.S. 1981 § 156(B) provided: "A claim against a political subdivision or employee shall be forever barred unless notice thereof is filed with the clerk of the governing body of the political subdivision within one hundred twenty (120) days after the loss occurs." [Emphasis added.]

. For the pertinent text of 51 O.S. 1981 § 156(C) see footnote 12 infra,

. For the pertinent text of 51 O.S. 1981 § 157 see footnote 2 supra.

. The common law tradition recognizes two distinct classes of loss-dealing time lapse: (1) statutes of limitation which extinguish only the remedy and (2) time bars that extinguish both the remedy and the right. Baccus v. Banks, 199 Okl. 647, 192 P.2d 683, 691 [1948], appeal dism. Reeder v. Banks, 333 U.S. 858, 68 S.Ct. 743, 92 L.Ed. 1138, reh.den. 333 U.S. 883, 68 S.Ct. 911, 92 L.Ed. 1158 [1948]. The one-hundred-twenty-day time bar found in § 156(B) and the six-month bar of § 156(C) are distinct from yet another time limit of ninety days in § 157. The former two time bars condition the right to claim recovery; they can neither be tolled by conduct nor extended by estoppel. See Pinson v. Robertson, 197 Okl. 419, 172 P.2d 625, 627 [1946]; Saak v. Hicks, Okl., 321 P.2d 425, 429 [1958] and Hiskett v. Wells, Okl., 351 P.2d 300, 304 [1960]. The ninety-day limit in § 157, on the other hand, is but an "ordinary" or "true” statute of limitations that is couched in a negative form; the § 157 limit is, of course, subject to both tolling and estoppel. See Phillips Petroleum Company v. United States Fidel & G. Co., Okl., 442 P.2d 303, 305 [1968]; Trinity Broadcasting Corp. v. Leeco Oil Co., Okl., 692 P.2d 1364, 1367 [1984] and Whitley v. Oologah S.D. 1-4 of Rogers Cty., Okl., 741 P.2d 455, 458 [1987] (Opala, L, concurring).

.Whitley v. Oologah S.D. 1-4 of Rogers Cty., (Opala, J., concurring), supra note 9 at 458.

. The last sentence in 51 O.S. 1981 § 157 provided in pertinent part that “[a] person may not initiate a suit ... unless the claim has been denied in whole or in part." [Emphasis added.] This provision, establishing a waiting period during which no litigation may be brought, is more aptly defined as a "negative statute of limitation". It lays down a time span within which no action is to be commenced. See Whitley v. Oologah S.D. 1-4 of Rogers Cty., (Opala, J., concurring), supra note 9 at 458.

. The pertinent terms of 51 O.S. 1981 § 156(C) provided that "[n]o action ... shall be maintained unless ... [it] is commenced six (6) months after notification of denial of the claim ..." [Emphasis added.]