DUNCAN v. CITY OF STROUD

OSCN Found Document:DUNCAN v. CITY OF STROUD

OSCN navigation

Home

Courts

Court Dockets

Legal Research

Calendar

Help

Previous Case

Top Of Index

This Point in Index

Citationize

Next Case

Print Only

DUNCAN v. CITY OF STROUD

2015 OK CIV APP 28

Case Number: 112172

Decided: 03/06/2015

Mandate Issued: 03/31/2015

DIVISION II

COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION II

Cite as: 2015 OK CIV APP 28, __ P.3d __

DONALD W. DUNCAN, Plaintiff/Appellant,

v.

CITY OF STROUD,

Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF

LINCOLN COUNTY,

OKLAHOMA

HONORABLE CINDY FERRELL ASHWOOD, TRIAL JUDGE

REVERSED

A. Laurie Koller, Patrick E. Carr, Michael E. Carr, Guy A. Thiessen, Raymond

S. Allred, CARR & CARR ATTORNEYS, Tulsa, Oklahoma, for

Plaintiff/Appellant

David W. Kirk, Robert Ray Jones, Jr., LYTLE SOULÉ &

CURLEE, Oklahoma City, Oklahoma, for Defendant/Appellee

JOHN F. FISCHER, PRESIDING JUDGE:

¶1 Donald W. Duncan appeals the dismissal with prejudice of his petition

alleging a tort claim against the City of Stroud. The appeal has been assigned

to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36,

12

O.S. Supp. 2013, ch. 15, app. 1, and the matter stands submitted

without appellate briefing. In the district court, the City argued that Duncan

failed to file this suit within the applicable limitations period required by

the Governmental Tort Claims Act, 51 O.S.2011 §§ 151-172 (GTCA), and therefore,

his claim was barred. 1 The City's argument is predicated on its interpretation

of a letter received from Duncan's counsel at the beginning of this litigation.

Because that letter does not constitute the notice required to start the

limitations period for Duncan's tort claim, we reverse. 2

BACKGROUND

¶2 Duncan was injured in an automobile accident that he contends was caused

by the negligence of a City employee who was acting within the scope of his

employment and driving a vehicle owned by the City at the time of the accident.

Duncan seeks to recover for the damages he alleges he incurred as a result of

the accident. Prior to the filing of this suit, Duncan's legal counsel sent a

letter to an insurance agency identified as the insurer of the City vehicle. The

City contends that this letter started the limitations period. The City moved to

dismiss Duncan's petition arguing that it had been filed outside the time

permitted after counsel's letter. The district court granted the City's motion

and dismissed Duncan's petition with prejudice.

STANDARD OF REVIEW

¶3 The City's motion to dismiss was premised on 12 O.S.2011 § 2012(B)(1), and argued that

the district court lacked subject matter jurisdiction because Duncan's petition

was filed after the applicable limitations period had run. "A pleading must not

be dismissed for failure to state a legally cognizable claim unless the

allegations indicate beyond any doubt that the litigant can prove no set of

facts which would entitle the plaintiff to relief." Tuffy's, Inc. v. City of

Oklahoma City , 2009 OK 4, ¶ 6, 212 P.3d 1158, 1162. Appellate courts review an order

dismissing a petition de novo "considering the legal sufficiency of the petition

and taking all allegations in the plaintiff's petition as true." Gens v.

Casady Sch. , 2008 OK

5,

¶ 8, 177 P.3d

565, 569.

ANALYSIS

¶4 Duncan's claim against the City is governed by the GTCA. Section 153(A) of

the GTCA provides:

The state or a political subdivision shall be liable for loss resulting from

its torts or the torts of its employees acting within the scope of their

employment subject to the limitations and exceptions specified in The

Governmental Tort Claims Act and only where the state or political subdivision,

if a private person or entity, would be liable for money damages under the laws

of this state.

51 O.S.2011 § 153(A). Within one year of

the accident, Duncan was required to "present" his claim to the City.

51 O.S.2011 §§ 156(A) and 156(B). The manner

in which that claim must be presented is also set out in section 156 of the Act.

D. A claim against a political subdivision shall be in writing and filed with

the office of the clerk of the governing body.

E. The written notice of claim to the state or a political subdivision shall

state the date, time, place and circumstances of the claim, the identity of the

state agency or agencies involved, the amount of compensation or other relief

demanded, the name, address and telephone number of the claimant, the name,

address and telephone number of any agent authorized to settle the claim . . . .

Failure to state either the date, time, place and circumstances and amount of

compensation demanded . . . shall not invalidate the notice unless the claimant

declines or refuses to furnish such information after demand by the state or

political subdivision.

¶5 However, Duncan was prohibited from filing this suit until the City denied

his claim. "No action for any cause arising under [the GTCA] shall be maintained

unless valid notice has been given and the action is commenced within one

hundred eighty (180) days after denial of the claim as set forth in this

section." 51 O.S.2011 §

157(B). "A claim is deemed denied if the state or political subdivision

fails to approve the claim in its entirety within ninety (90) days."

51 O.S.2011 § 157(A). "Compliance with the

written notice of claim and denial of claim provisions in §§ 156 and 157 [of the

GTCA] are prerequisites to the state's consent to be sued and to the exercise of

judicial power to remedy the alleged tortious wrong by the government."

Shanbour v. Hollingsworth , 1996 OK 67, ¶ 7, 918 P.2d 73, 75.

¶6 The accident in which Duncan was injured occurred on March 23, 2012. On

April 6, 2012, Duncan's legal counsel sent a letter on the law firm's letterhead

to Hinson Insurance Agency. According to the Traffic Collision Report prepared

by the City's police officer who investigated the accident, Hinson was

identified as the insurance company for the City vehicle involved in the

accident. The "regarding" section of counsel's April 6 letter lists Duncan's

name, the City, the City employee's name and the date of accident. The letter

states:

The firm of Carr & Carr Attorneys has been retained by Donnie Wayne

Duncan for representation concerning the matter described above.

Each and every authorization in which our client may have permitted the

release of medical records, employment records or other information which

customarily requires an authorization is hereby revoked. Please do not request

such records or information without a proper release obtained through our firm

after the date of this letter.

Pursuant to Okla. Stat. Tit. 12, §3226(B)(1), insurance agreements that will

satisfy part or all of a judgment are discoverable. Please send us a copy of

this policy and a statement of each coverage and limits thereof, as well as

copies of each oral or written statement you have obtained from our client and

copies of photographs of the vehicles involved in this loss.

Carr & Carr, Attorneys at Law, is claiming an attorney lien on the

proceeds of any settlement.

¶7 On April 12, 2012, Duncan's counsel received a letter from a senior claims

examiner for Oklahoma Municipal Assurance Group (OMAG) acknowledging receipt of

Duncan's April 6, 2012, "claim." That letter states that the claims examiner

"will be directing the handling of this matter and will be in touch in the near

future." The letter includes a "cc: City of Stroud." There is no indication in

this record that Duncan's counsel was thereafter contacted by the OMAG's senior

claims manager or any other OMAG officer, agent or employee. 3

¶8 In a certified letter dated February 20, 2013, Duncan's counsel mailed a

Notice of Claim to the Stroud City Clerk.

4 The February Notice of Claim provides all of the

information required by Title 51 O.S.2011 § 156(E), including a demand

for $250,000 to compensate Duncan for his damages resulting from the accident.

In addition, the February Notice of Claim was mailed to the City Clerk as

required by 51 O.S.2011 §

156(D). Although the City now contends that Duncan's time to pursue his

claim expired in January of 2013, there is no response to Duncan's February 2013

Notice of Claim in this record or any other correspondence from the City to

Duncan or his counsel. If effective, Duncan's February Notice of Claim would

have been "deemed denied" ninety days thereafter, or on May 20, 2013.

51 O.S.2011 § 157(A). Duncan filed this

suit on June 3, 2013, within the one hundred and eighty days after May 20, 2013,

required by section 157(B) of the GTCA.

¶9 Nonetheless, the City moved to dismiss Duncan's suit arguing that

counsel's April 6 letter constituted the notice required by section 156 of the

GTCA. According to the City, Duncan's claim was deemed denied ninety days after

April 6, 2012, or on July 5, 2012. The City concludes that Duncan's suit filed

June 3, 2013, is barred by the applicable limitations period because it was

filed more than one hundred and eighty days after July 5, 2012, as required by

section 157(B) of the GTCA. If the April 6 letter constituted the statutorily

required notice of Duncan's claim, the City is correct and Duncan's claim is

barred. See Hall v. The Geo Group, Inc. ,

2014 OK 22, ¶ 13, 324 P.3d 399, 404 (compliance with the notice

provisions of the GTCA is jurisdictional). However, we find the City's position

untenable.

¶10 Even though the April 6 letter does not contain the information required

by section 156(E) and was not filed with the City Clerk as required by section

156(D), the City argues that the April 6 letter is sufficient notice of Duncan's

claim because it substantially complies with the notice requirements of the

GTCA. The City relies on two decisions from this Court to support this argument.

The City's cases were either decided before or relied on cases decided before

Minie v. Hudson ,

1997 OK 26, 934 P.2d 1082. In that case, the claimant relied on the

line of cases which had consistently held that substantial compliance with the

notice provisions of the GTCA was sufficient when the governmental entity was

not prejudiced, and the information provided satisfied the purposes of the

statutory notice provisions of the Act. The Court noted, however, that the

notice section of the Act, section 156, had been amended effective October 1,

1985. The amendment added a provision requiring that: "A claim against a

political subdivision shall be in writing and filed with the office of the clerk

of the governing body." Id. ¶ 7, 934 P.3d at 1086. As a result, the Court

held "only a written claim is sufficient to invoke the protections of the

Governmental Tort Claims Act." Id. ¶ 8, 934 P.2d at 1086.

¶11 Minie does not speak directly to the requirement for filing a

claim with the clerk of the governing body. However, the Court did find that the

claimant's verbal notice of his claim to the city manager and his written notice

filed with the county clerk did not constitute valid notice of his claim against

the city. We agree with this Court's holding in Smith v. White Oak Sch.

Dist. , No. 105,108, 2008 WL 9824868, at *3 (Okla. Ct. App. June 20, 2008),

that Minie abrogated the doctrine of substantial compliance. As recently

noted by the Supreme Court: "The limitations of the Tort Claims Act are narrowly

structured, and a grant of substantial compliance under the general procedural

regime is not allowed." Slawson v. Board of County Comm'rs of Logan

Cnty. ,

2012 OK

87, ¶ 6, 288 P.3d

533, 534 (citing Carswell v. Oklahoma State Univ. , 1999 OK 102, ¶ 7, 995 P.2d 1118, 1121).

¶12 Notice is the "cornerstone" of the GTCA. McWilliams v. Board of Cnty.

Comm'rs of Cnty. Of Comanche ,

2011 OK 103, ¶ 24, 268 P.3d 79, 85. The City's argument that the April 6

letter constitutes sufficient notice of Duncan's tort claim fails for three

reasons.

¶13 First, of the information required by section 156(E), the April 6 letter

includes only Duncan's name, the date of the accident, the name of the City

employee involved in the accident, and the name, address, and telephone number

of the agent authorized to settle Duncan's claim. It does not include Duncan's

address and telephone number, the time, place or circumstances of the accident,

the amount of compensation Duncan sought, and it was not filed with the City's

Clerk. Citing section 156(E), the City argues that failure to include "the date,

time, place and circumstances and amount of compensation demanded . . . shall

not invalidate the notice unless the claimant declines or refuses to furnish

such information after demand by the state or political subdivision." The plain

meaning of this language is to provide a mechanism to cure an otherwise

statutorily defective notice. "[N]o further construction is required or

permitted." Hathaway v. State ex rel. Med. Research & Technical

Auth. ,

2002 OK

53, n.13, 49 P.3d

740, 743 n.13. However, the City "did not exercise its prerogative under

[section 156(E)] to obtain further information from the appellant." Reirdon

v. Wilburton Bd. Of Educ. , 1980 OK 67, ¶ 5, 611 P.2d 239, 241 (superseded by statute).

Consequently, the April 6 letter remained statutorily deficient as notice of

Duncan's tort claim.

¶14 Second, the April 6 letter does not meet the statutory definition of a

"claim" for purposes of the GTCA. A claim is defined as:

[A]ny written demand presented by a claimant or the claimant's authorized

representative in accordance with this act to recover money from the

state or political subdivision as compensation for an act or omission of a

political subdivision or the state or an employee.

51 O.S.2011 § 152(4) (emphasis added). The

only "demand" in the April 6 letter is for a copy of the City's insurance

policy. "The GTCA precludes any tort action against a political subdivision

unless the plaintiff has provided notice and given the political subdivision the

opportunity to accept or deny the claim." McWilliams ,

2011 OK

103, ¶ 24, 268 P.3d at 85. Unless the amount of a claimant's demand is

known, it is impossible for the government to decide whether to pay or deny the

claim. Duncan's only demand for money is contained in his February Notice of

Claim.

¶15 Third, the April 6 letter was not filed by Duncan's counsel with the

City's Clerk as required by section 156(D) of the GTCA: "A claim against a

political subdivision shall be in writing and filed with the office of the clerk

of the governing body." "The use of 'shall' by the Legislature is normally

considered as a legislative mandate equivalent to the term 'must', requiring

interpretation as a command." Minie , 1997 OK 26, ¶ 8, 934 P.2d at 1086. The City's

argument that the April 6 letter constituted notice of Duncan's tort claim is

unpersuasive.

¶16 We are not dealing in this case with an attempt by a governmental tort

claimant to avoid the GTCA limitations periods by filing a second notice of

claim. Cf ., Kennedy v. City of Talihina , 2011 OK CIV APP 108, 265 P.3d 757; Grider v. Indep. Sch. Dist. No.

89 , 1994 OK CIV APP

34, 872 P.2d

951. Here we deal with an attempt by the City to cut off an otherwise GTCA

compliant claim through a strained interpretation of a letter from Duncan's

counsel to what appears to be an insurance agency representing the City. There

is no evidence in this record proving that the City is insured for this loss by

OMAG, that OMAG was authorized to receive notice of tort claims against the City

or that OMAG transmitted the April 6 letter to the City's Clerk. To the extent

that OMAG is the City's insurance company, we cannot permit the senior claims

manager's promise "to be in touch in the near future" to "lull" Duncan, whether

intentionally or unintentionally, "into a false sense of security concerning the

applicable denial date under [section] 157 and then rely on the induced delay as

a defense to an action." Carswell v. Oklahoma State Univ. ,

1999 OK 102, ¶ 13, 995 P.2d 1118, 1122.

¶17 Finally, the rule of interpretation proposed by the City would put

claimants at risk anytime they communicated with a governmental entity prior to

filing a formal notice of claim fully compliant with the requirements of section

156. The GTCA "should not be given a construction which will defeat the ends of

justice." Reirdon , 1980 OK 67, ¶ 6, 611 P.2d at 241. Discouraging early

communication between a tort claimant and the government would defeat the ends

of justice and frustrate the purpose of the GTCA.

The purposes of the notice requirement are to further legitimate interests by

promoting prompt investigation; by providing the opportunity to repair any

dangerous condition and for speedy and amicable settlement of meritorious

claims; and to allow the opportunity to prepare to meet possible fiscal

liabilities. 5

Conway v. Ohio Cas. Ins. Co.

, 1983 OK 83, ¶ 7, 669 P.2d 766, 767 (superseded by statute).

Accord McWilliams , 2011 OK 103, ¶ 24, 268 P.3d at 85. The City's proposed

rule of interpretation is a rule we are unwilling to adopt and a rule we find

inconsistent with Minie v. Hudson.

CONCLUSION

¶18 The evidence submitted in support of the City's motion to dismiss is

insufficient to contradict the allegation in Duncan's petition that on February

23, 2013, he "gave timely and proper notice of his claim to the City of Stroud

pursuant to Okla. Stat. Tit. 51, §156 and within the one (1) year set forth

therein." Taking this allegation in Duncan's petition "as true," we find that

the district court erred in granting the City's motion to dismiss. Gens v.

Casady Sch. ,

2008 OK 5, ¶ 8, 177 P.3d 565, 596. The order appealed is reversed.

¶19 REVERSED .

GOODMAN, V.C.J., and WISEMAN, J., concur.

FOOTNOTES

1 Although some provisions

of the GTCA have been amended since 2011, those amendments were not effective

until after Duncan's injury. Further, those amendments did not affect the

material provisions of the GTCA relevant to this litigation. Therefore, we will

cite to the 2011 version of the GTCA.

2 Duncan's Motion for Leave to Submit Appellate Brief is

denied.

3 In other litigation, OMAG has provided a form for GTCA

claimants to fill out and submit regarding claims against its insureds.

See , e.g. , Kennedy v. City of Talihina , 2011 OK CIV APP 108, 265 P.3d 757. There is no evidence in this record that

OMAG provided any such form to Duncan or his counsel.

4 The February Notice of Claim appears to have been

mailed on February 19, 2013, and, according to the return receipt, received by

the City Clerk the following day.

5 According to the investigating officer's report, the

accident occurred because the city vehicle "disobeyed the traffic sign" at an

intersection striking Duncan's vehicle while Duncan had the right of

way.

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Court of Civil Appeals Cases

Cite Name Level

1994 OK CIV APP 34, 872 P.2d 951, 65 OBJ 1432, Grider By and Through Grider v. Independent School Dist. No. 89 Discussed

2011 OK CIV APP 108, 265 P.3d 757, KENNEDY v. CITY OF TALIHINA Discussed at Length

Oklahoma Supreme Court Cases

Cite Name Level

1997 OK 26, 934 P.2d 1082, 68 OBJ 909, Minie v. Hudson Discussed at Length

2002 OK 53, 49 P.3d 740, HATHAWAY v. STATE EX. REL. MEDICAL RESEARCH & TECHNICAL AUTHORITY Discussed

1996 OK 67, 918 P.2d 73, 67 OBJ 1844, Shanbour v. Hollingsworth Discussed

2008 OK 5, 177 P.3d 565, GENS v. CASADY SCHOOL Discussed at Length

2009 OK 4, 212 P.3d 1158, TUFFY'S, INC. v. CITY OF OKLAHOMA CITY Discussed

2011 OK 103, 268 P.3d 79, MCWILLIAMS v. BOARD OF COUNTY COMMISSIONERS OF COUNTY OF COMANCHE Discussed at Length

2012 OK 87, 288 P.3d 533, SLAWSON v. BOARD OF COUNTY COMMISSIONERS Discussed

2014 OK 22, 324 P.3d 399, HALL v. THE GEO GROUP, INC Discussed

1980 OK 67, 611 P.2d 239, Reirdon v. Wilburton Bd. of Ed. Discussed at Length

1999 OK 102, 995 P.2d 1118, 71 OBJ 17, Carswell v. Oklahoma State University Discussed at Length

1983 OK 83, 669 P.2d 766, Conway v. Ohio Cas. Ins. Co. Discussed

Title 12. Civil Procedure

Cite Name Level

12 O.S. 2012, Defenses and Objections - When and How Presented - By Pleading or Motion Cited

Title 51. Officers

Cite Name Level

51 O.S. 156, Claims - Petition - Limitation of Actions - Notice - Wrongful Death Discussed at Length

51 O.S. 152, Definitions Cited

51 O.S. 153, Liability - Scope - Exemption Cited

51 O.S. 157, Notice of Approval or Denial of Claim Discussed at Length