dissenting.
1 1 I respectfully dissent.
{2 The time to file a notice of claim against the state or its political subdivisions clearly runs from the "date the loss occurs." 51 0.8. Supp.1999 § 156(B). Here, the loss occurred in 1991, yet the notice of claim was not filed until 1998, obviously outside the time limit for filing a notice of claim.
T3 The Governmental Tort Claims Act (GTCA) "narrowly structures the method for bringing a tort claim against a political subdivision." Gurley v. Memorial Hosp. of Guymon, 1989 OK 34, ¶ 6, 770 P.2d 573, 576. The notice provisions of the GTCA "are a creation of statutory law and '[ereate] a right previously unknown to both the common as well as the statutory law' [and constitute] a condition precedent and an essential element of any right to a cause of action against [a state governmental entity]." Leding v. Pittsburg County Court, 1996 OK CIV APP 107, ¶ 8, 928 P.2d 957, 959 (quoting Lasiter v. City of Moore, 1990 OK CIV APP 76, ¶ 4, 802 P.2d 1292, 1298). Compliance with the notice-of-claim requirements has been viewed as "either a condition precedent to suit against a political subdivision, or a jurisdictional prerequisite to judicial intervention." Gurley, 1989 OK 34, ¶ 6, 770 P.2d at 576. Plaintiffs failed to comply with the notice provisions of section 156(B) because they did not timely file their notice of claim. Thus, they did not meet the condition precedent to suit against State and judicial intervention is not allowed. .
T4 Despite the clear noncompliance with the notice provisions of section 156(B), the majority is reversing and remanding this action on the ground that "Mother and Son have raised questions of fact regarding the elements of estoppel. ..." The majority finds that estoppel may apply against State because "the public's interest in proficient medical care unimpeded by a prevarication, concealment, and/or misrepresentation" outweighs "any reasonable premise to protect the public's interest fostered by the time bar in Section 156(B)." I disagree. "The notice provision furthers legitimate state interests by fostering a prompt investigation while the evidence is still fresh; the opportunity to repair any dangerous condition; quick and amicable settlement of meritorious claims; and preparation of fiscal planning to meet any possible liability." Reirdon v. Wilburton Bd. of Ed., 1980 OK 67, ¶ 4, 611 P.2d 239, 240. I would not apply the doctrine of estoppel to toll the notice provisions of seetion 156(B).
11 5 I disagree with the majority's engraft-ing the equivalent of a discovery rule onto the notice provisions of the Governmental Tort Claims Act in an effort to toll the period for filing a notice of claim. Section 156(B) is clear in requiring that the time to file a *1174notice of claim is calculated from the date of the loss. Because the GTCA is in derogation of sovereignty, it "will not be construed to divest the state of its immunities unless the intention to do so is clearly expressed." Gurley, 1989 OK 34, ¶ 6, 770 P.2d at 576. Thus, section 156(B) should not be construed to include a discovery rule that clearly is not part of the statutory language and that would divest the state of its immunity.
T6 Furthermore, the discovery rule as a tolling mechanism has generally been applied where the language of the statute specifically provides for a discovery rule, 76 O.S.1991 § 18, or where the language of the statute of limitations uses words such as "accrue" or "arise," see 12 O.S. Supp.1999 § 95. Section 156(B) clearly calculates the time to file a notice of claim from the date of loss, not from the date the cause of action accrues or arises. Thus, I would find that the discovery rule does not apply to the notice provisions of section 156(B). See Montgomery v. Polk County, 278 NW.2d 911, 914 (Iowa 1979). In this case, the loss occurred during 1991, not when it was "discovered" during May of 1998.
T7 Our duty is to construe the GTCA in accordance with what we deem to be the intent of the Oklahoma Legislature in enacting it, Did the Legislature intend, by section 156(B), that actions must be brought within the time therein stated, or did it intend, as Appellants claim, that time may run from later discovery? Since the statute does not use the term "when the claim acerues" or "arises," the statute does not have the elasticity that has been demonstrated by the body of court-made law that has developed.
T8 While my position on this issue may seem to be harsh, it does not deprive the Appellants of a remedy for any wrong which may bave been committed against them. They can (and did in this case) bring an action against the individuals who allegedly wronged them.
T 9 I would affirm the summary judgment in favor of State.