concurring and specially concurring:
I concur with the Majority, but write separately to explain further my view of the operation of section 24-10-109, 7 C.R.S. (1997).
The application of section 24 — 10-109 has bedeviled the courts for over a decade, both before and after the most recent amendments by the General Assembly. The reason for that struggle is really quite simple: courts must interpret and apply statutes as written, but also must open their doors to the resolution of disputes on the merits whenever possible.
Governmental immunity represents the clearest example of the tension created by that dual obligation. More particularly, governmental immunity is in derogation of the common law and is to be narrowly construed. See Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1388 (Colo.1997). This court and the court of appeals have resolved disputes about the interpretation of section 24-10-109 within the crucible of that tension. See, e.g., East Lakewood Sanitation Dist. v. District Court, 842 P.2d 233 (1992); Woodsmall v. Regional Transp. Disk, 800 P.2d 63 (Colo. 1990); Aetna Cas. & Sur. Co. v. Denver Sch. Dist, 787 P.2d 206 (Colo.App.1989).
In my view, the analysis of compliance with section 24-10-109 begins with the distinction between those provisions that are jurisdictional and those that are not. The consequences of designating a provision as jurisdictional, at least insofar as subject matter jurisdiction is concerned, relate to issues such as whether waiver or estoppel may apply, whether the provision creates a defense which can be waived and whether a dismissal with prejudice is warranted.
Whether a provision is jurisdictional or not is the first inquiry. This analysis does not involve what might be required to satisfy or comply with the provision. We must seek to disentangle questions about subject matter jurisdiction from questions about compliance. What constitutes compliance turns on the language and intent of the provision, not the jurisdictional or non-jurisdictional import of the provision.
I.
Thus I begin the analysis of section 24-10-109 with an examination of which provisions are jurisdictional. We have already held that subsection (1) creates a jurisdictional prerequisite to the litigation. of claims against a public entity. See Regional Transp. Dist. v. Lopez, 916 P.2d 1187,1193 (Colo.1996). This portion of the statute is correctly characterized as a “non-claim” statute similar to the non-claim statute found in the Probate Code divesting courts of subject matter jurisdiction over creditors’ claims not filed within specified time limits. See § 15-12-803, 5 C.R.S. (1997); McMahon v. Denver Water Bd., 780 P.2d 28, 29 (Colo.App.l989)(holding that section 24-10-109(1) contains the language of a non-claim statute and citing by way of example a probate case decided under section 15-12-803). Subsection (1) provides in pertinent part that “[cjompliance with the provisions of *1046this section shall be a jurisdictional prerequisite to any action ... and failure of compliance shall forever bar any such action.” § 24-10-109, 7 C.R.S. (1997). The language specifically designating the provision as jurisdictional, as well as the phrase “shall forever bar,” distinguish this provision as a non-claim statute rather than a statute of limitation. See Estate of Daigle, 634 P.2d 71, 76 (Colo. 1981). Hence subsection (1), like section 15- • 12-803, represents a.non-claim statute implicating subject matter jurisdiction, the terms of which cannot be waived or tolled.
II.
As wé noted in Lopez, the jurisdictional language is limited in its application to subsection (1), which mandates the filing of notice within 180 days. -See Lopez, 916 P.2d at 1194-95. This limitation also comports with the notion of a non-claim statute as being temporal in nature and analogous (but not identical) to a statute of limitations. See Public Serv.- Co. v. Barnhill, 690 P.2d 1248, 1251 (Colo.l984)(“The term ‘non-claim statute’ describes legislation which prohibits absolutely the initiation of litigation after a specific period of time.”). The time requirement is the only defect that is jurisdictional, and thus cannot be waived and permits no equitable defense.
The remaining subsections under 24-10-109 concern issues other than the 180-day jurisdictional time limit, and do not raise issues of subject matter jurisdiction. Rather, to continue the analogy to ;the Probate Code, the remaining subsections parallel section 15-12-804 of the Probate Code entitled “Manner of presentation of claims.” See § 15-12-804, 5 C.R.S. (1997). Similar to the remaining subsections in '24-10-109, section 15-12-804 covers issues such as where to file the notice and what the notice should contain. See § 15-12-804, 5 C.R.S. (1997). Just as with the remaining subsections of 24-10-109, these provisions create statutory defenses, rather than a jurisdictional bar, to claims. Such defenses, once raised, must be considered within the specific context of the facts of the case and the language of the applicable statutory provision. Cf. Crowley v. Farmers State Bank, 109 Colo. 146, 151, 123 P.2d 407, 409 (1942) (interpreting the previous version of 15-12-804, and requiring that a creditor file the original, not a copy, of a promissory note with the court in order to comply with the statute, unless the personal representative waived the defense); and Estate of Rienks, 844 P.2d 1295 (Colo.App.1992) (disallowing a creditor’s claim that was filed with a person who had not received formal appointment as a personal representative); with Strong Bros. Enters., Inc. v. Estate of Strong, 666 P.2d 1109 (Colo.App.1983) (finding that the contents of a letter sufficiently described the nature of the creditor’s claim and could, under the statute in this circumstance, be delivered to the personal representative’s attorney).
The point of the analogy to the legislative scheme in the Probate Code is simple: a non-claim provision is jurisdictional and temporal in nature; other provisions describing the nature and method of filing create statutory requirements that must be examined for compliance on a case-by-case basis. This is precisely how we have treated and should treat the other subsections of section 24-10-109.
III.
Once the jurisdictional issue is settled, the question then centers upon what constitutes compliance with the particular provision at issue. This analysis should not focus on substantial versus strict compliance or substantial versus impliedly strict compliance. As with any statutory defense, we must look to the language and intent of the statute and also take into account any relevant equitable considerations.
Here we deal with the marídate of subsection (3), which states that notice “shall be filed with the governing body of the public entity or the attorney representing the public entity.” § 24-10-109(3), 7 C.R.S. (1997).
The subsection does not involve matters of subject matter jurisdiction as- Lopez made clear. Rather, failure to comply with the subsection was properly raised as a defense by RTD in a motion to dismiss, leaving the trial court to determine whether the plaintiff had complied.
*1047The court must then look to the language of the subsection and determine what it requires. Unlike subsection (2), where the claimant could be asked to provide information that might then be incomplete, such as medical condition and diagnosis of the claimant’s injury, see Woodsmall, 800 P.2d at 68, there is no room for differing interpretations and no argument of impossible demands in subsection (3). The claimant is simply required to file notice with certain individuals, depending upon the entity being sued, and Nyland did not do so.
Indeed, Nyland made no attempt whatsoever within the 180-day time period to notify RTD’s governing board or attorney. Moreover, Nyland does not claim that RTD has taken any action or made any representation which would constitute a waiver or create an estoppel argument. Instead Nyland argues that a series of letters containing one isolated reference to liability (as distinguished from PIP) issues that he sent to RTD’s claims department constituted compliance with subsection (3). The statutory language directs otherwise.
Compliance with subsection (3) is straightforward. It does not, as in Woodsmall and Lopez, raise the specter of an absurd or overly harsh result. To the contrary, if there is any absurdity here it arises out of the fiction that the claims department can be transformed by judicial alchemy into the governing body or attorney under the language of the statute. It is a simple enough proposition under the facts of this ease that Nyland, represented by counsel, could have sent his notice to the party designated in the statute.
Accordingly, I agree with the Majority first that subsection (3) does not create a subject matter jurisdictional bar, and second that Nyland failed to comply with the provisions of the subsection.. I would, therefore, inverse the court of appeals and direct the return of this case to the trial court with directions to grant the motion to dismiss Nyland’s claims for failure to comply with section 24-10-109(3).
I am authorized to state that JUSTICE MULLARKEY joins in this special concurrence.