# DUNCAN v. CITY OF STROUD

> Court of Civil Appeals of Oklahoma · March 6, 2015 · 346 P.3d 446

URL: https://www.frixlaw.com/law-library/cases/2792570

## Case

- **Court:** Court of Civil Appeals of Oklahoma
- **Decided:** March 6, 2015
- **Citations:** 346 P.3d 446; 2015 OK CIV APP 28
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2792570

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2792570. Public record. Not legal advice.