No. 14538
IN THE SUPREPIF, Cr)UHT OF THE STATE OF I'XN'I'ANA
W3N S. NELSON,
P l a i n t i f f and Appellant,
~~ BRIDGES HIGH SCHOOL, TWIN ERJDQS,
MJNTANA; SCHOOL DISTRICT NO. 7,
State of mntana,
Defendants and Wspondents.
Appeal f m : D i s t r i c t Court of the F i f t h Judicial District,
Honorable Frank E. B l a i r , Judge presiding.
Counsel of Record:
For Appellant:
Harlen, Norris and Picotte, Helena, Mntana
C a r t e r N. Picotte argued, Helena, hbntana
For Wpondents :
Corette Smith, Dean, Pohlman, and Allen, Butte, Mmkana
R. D. Corette, Jr., argued, Butte, mntana
S*tted: March 21, 1979
--
~ e c i d e APR
d 1 ;19: j
Mr. Chief Justice Frank I. Haswell delivered the opinion of the
Court.
Plaintiff appeals from a summary judgment against him
in the District Court of Madison County.
Plaintiff Ron S. Nelson filed an action for damages
against Twin Bridges High School and School District No. 7 for
personal injuries allegedly suffered during a student-faculty
basketball game at Twin Bridges High School on April 29, 1974.
The game was part of an intra-mural program and plaintiff's
participation was voluntary. Plaintiff claims that during the
game he was violently hit from behind, knocked to the floor and
suffered extensive and permanent injuries to his right knee.
Plaintiff alleges that he filed a claim for damages with
"the proper officials of defendants" on March 3, 1977. No compen-
sation was paid by defendants. On October 31, 1977, plaintiff
filed suit against them in the District Court, seeking damages
for his alleged injuries. Defendants' amended answer alleged
the action was barred by the three-year statute of limitations.
The ~istrictCourt granted summary judgment to defendants
on the ground that plaintiff's action was barred by the statute
of limitations, citing the three-year statute of limitations
against personal injury actions, section 93-2605(3), R.C.M. 1947,
now section 27-2-202 MCA, and the two-year statute of limitations
applicable to claims against the state and its political sub-
divisions, section 82-4312, R.C.M. 1947, now section 2-9-301(2) MCA.
The sole issue on appeal is whether plaintiff's action is
barred by the statute of limitations. Whether the two-year or
three-year statute of limitations applies is immaterial as plain-
tiff's action is either barred or permissible under either statute.
Here the action was filed about 3-1/2 years after the alleged in-
jury and about 8 months after the alleged presentation of the claim
to defendants.
The gist of plaintiff's contention is that the statute
of limitations is no bar because his action was filed within 8
months after presentation of his claim to the defendants. He
cites sections 82-4316 and 82-4317, R.C.M. 1947, (since repealed
by Sec. 12, Ch. 360, Laws 1977), providing that an injured party
can file a civil suit for damages within two years of filing
his claim with the political subdivision, here the High School
and the School District. He contends that the statute of limi-
tations begins to run at the time the claim is presented to the
School District and High School.
Although this case is relatively simple on its facts, it
is complicated by changes in the laws respecting statutes of
limitation as applied to personal injury claims against state and
local governmental subdivisions. The 1972 Montana Constitution
abolished sovereign immunity by providing:
"The state, counties, cities, towns, and all
other local governmental entities shall have
no immunity from suit for injury to a person
or property . . ."
1972 Mont. Const., Art. 11,
518.
Thereafter in 1973, the legislature enacted the Montana
Tort Claims Act. Ch. 380, Laws of 1973, codified as section
82-4301 et seq., R.C.M. 1947, now section 2-9-101 et seq. MCA.
This act required a claim to be filed with the proper governmental
unit within 129 days of the injury before suing the state or one
of its political subdivisions. Sections 82-4311, 82-4312, R.C.M.
1947, now sections 2-9-301(1), 2-9-301(2) MCA. If the claim was
not paid, an injured party could commence a civil suit for damages
within two years of the filing of the claim. Sections 82-4316,
82-4317, R.C.M. 1947, (since repealed by Sec. 12, Ch. 360, Laws
1977).
In 1975, this Court held the 120 day claim requirement un-
constitutional where a party sought to impose liability on the
state. No11 v. City of Bozeman (1975), 166 Mont. 504, 534 P.2d
880. By implication, No11 also struck down the claim require-
ment, applicable to actions against local governments.
The No11 decision was based on our construction of the
intent of the framers of the constitution "to preclude limita-
tions upon the waiver of sovereign immunity." No11 at 508.
We noted that the power of the legislature to enact statutes of
limitation governing tort claims against the state had not been
affected. No11 at 508.
" ... A true statute of limitation establishes
a time period within which suit must be brought.
(Citation omitted.) Its object is to suppress
stale and fraudulent claims after the facts con-
cerning them have become obscure from lapse of
time, defective memory, or death or removal of
witnesses. Eby v. City of Lewistown [1918], 55
Mont. 113, 173 P. 1163." No11 at 509.
We held that the 120 day claim requirement did not meet this test
and was an unconstitutional limitation of actions. The applic-
able statute was cited as section 82-4317, R.C.M. 1947: "Every
claim against a governmental entity permitted under the provisions
of this act shall be forever barred unless an action is begun
within two (2) years after the claim is filed with the govern-
mental entity."
Plaintiff argues that No11 struck down the 120 day re-
quirement but did not affect the requirement that a claim be filed.
He concludes that because the statute of limitation is made oper-
ative on the filing of a claim, an injured party may bring a civil
suit for damages against a governmental entity any time within
two years of filing. Thus, plaintiff argues, he is clearly with-
in section 82-4317 as the suit was commenced within 8 months of
the filing of the claim with defendants.
If plaintiff's interpretation is correct, the result
would effectively nullify the purpose of any statute of limita-
tions. There would be no limitation on when the claim could be
filed. The state or a political subdivision could be sued at any
time in the future at the option of the plaintiff, simply by
delaying presentation of a claim against the state or one of its
political subdivisions.
No11 strikes down the same requirement as a condition
precedent or a limitation on an injured party's right to sue
a governmental entity. Until the legislature, by a two-thirds
vote of each house provides such a requirement, it is no part
of Montana's law. 1972 Montana Constitution, Art. 11, S18,
amended effective July 1, 1975. The statute of limitation begins
to run from the date the cause of action accrues, Cassidy v.
Finley (1977), Mont . , 568 P.2d 142, 34 St.Rep. 879, not
from the date the claim is filed.
We note that the statute of limitations on actions
against governmental units has since been amended to provide for
a three-year statute of limitations. Sec. 7, Ch. 360, Laws 1977,
codified as section 82-4312.1, R.C.M. 1947, now section 2-9-302 MCA.
The statute of limitations on personal injury actions remains at
three years. Section 93-2605(3), R.C.M. 1947, now section 27-2-
202(3) MCA. This should eliminate such problems in the future.
Affirmed.
Chief Justice
Justices 4