# Whitley v. Oologah Independent School District No. I-4 of Rogers County

> Supreme Court of Oklahoma · July 24, 1987 · 741 P.2d 455

URL: https://www.frixlaw.com/law-library/cases/9537207

## Case

- **Full name:** Harold Neal WHITLEY and Norma Jean Whitley, Appellants, v. OOLOGAH INDEPENDENT SCHOOL DISTRICT NO. I-4 OF ROGERS COUNTY, an Oklahoma Political Subdivision; State Farm Mutual Automobile Insurance Company, an Insurance Corporation; Security National Insurance Company, an Insurance Corporation; And Mikeal T. Wyckoff, Appellees
- **Court:** Supreme Court of Oklahoma
- **Decided:** July 24, 1987
- **Citations:** 741 P.2d 455
- **Precedential status:** Published
- **Opinion:** Dissent by Lavender
- **Judges:** Doolin, Simms, Opala, Wilson, Summers, Hargrave, Hodges, Lavender, Kauger
- **Cited by:** 17 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/9537207

## Opinion text

LAVENDER, Justice,
dissenting:
I would affirm the judgment of the trial court.
The appellee in the present case has raised a proposition in support of the trial court’s decision which requires a disposition of the case at odds with the result reached. Citing the cases of Hiskett v. Wells 1 and Phillips Petroleum Co. v. *461 United States Fidelity & Guaranty Co., 2 appellee points out the general rule that a substantive statute of limitation is not subject to claims of estoppel. In Hiskett we applied this principle, finding that the limitations period in question in that case was substantive in nature and not subject to a claim of estoppel. An analysis of the legislation here involved, reveals that the time limits are substantive in nature and that estoppel may not be applied to toll the time periods, as the right of action itself ceased to exist on the expiration of the period set within which to bring the action. 3
Oklahoma has recognized the distinction between limitation periods which are part of a statute creating a cause of action unknown at common law and those limitation periods which are generally aimed at barring an available remedy to prevent the assertion of stale claims. 4 Those limitation periods enacted as part of the legislation creating a cause of action are generally held to be a substantive part of the cause of action, so that when the limitation period expires the assertion of the cause of action is not merely barred, the cause of action itself has ceased to exist. 5
In Trinity Broadcasting Corp. v. Leeco Oil Co., 6 we set forth the elements for identifying the existence of a substantive limitation period:
The statute (a) creates a new liability, (b) gives an action to enforce the liability that was unknown at common law, (c) fixes a time within which one must bring such action, and (d) the limitation is directed at the newly created right so specifically as to say it qualifies the right, not just the remedy, Hiskett v. Wells, infra note 11 at 304.
The statutory provision which is in question in the present case is that section of the Political Subdivision Tort Claims Act 7 which sets limitation periods on the assertion of claims against the political subdivision. This section, 51 O.S.1981 § 156, provided: 8
A. Any person having a claim against a political subdivision or an employee within the scope of this act shall petition the political subdivision for any appropriate relief including the award of money damages.
B. A claim against a political subdivision or employee shall be forever barred unless notice thereof is filed with the clerk of the governing body of the political subdivision within one hundred twenty (120) days after the loss occurs.
C. The written notice of claim shall state the time, place and circumstances of the claim and the amount of compensation or other relief demanded. Failure to state either the time, place, circumstances and amount of compensation demanded shall not invalidate the notice unless the claimant declines or refuses to furnish such' information within ninety (90) days after demand by the political subdivision. No action for any cause arising under this act shall be maintained unless valid notice has been given and the action is commenced within six (6) months after notification of denial of the claim by the clerk of the political subdivision. The time for giving written notice of claim does not include the time during *462 which the person injured is unable due to incapacitation from the injury to give such notice, not exceeding ninety (90) days of incapacity.
D. When the claim is one for death by wrongful act or omission, notice may be presented by the personal representative, surviving spouse or next of kin or other legal representative or the consular officer of a foreign country of which the deceased was a citizen, within one (1) year after the alleged injury or loss resulting in such death. Provided, however, if the person for whose death the claim is made has presented notice that would have been sufficient had he lived, an action for wrongful death may be brought without any additional notice.
Applying the analysis set forth in Trinity Broadcasting, it is apparent that the Act creates a new liability on the part of political subdivisions, and creates a right of action which did not exist at common law as the action and liability of an independent school district were barred by the concepts of governmental immunity. 9 Subsections (B) and (C) of section 156 set forth definite times within which a notice of claim must be presented to the political subdivision and within which an action must be commenced after the claim has been denied. The statute also clearly states that no action may be maintained unless the notification and time requirements are complied with. This provision is clearly directed at the cause of action and is not a general limitations provision.
Appellants in this case argue that the langixage of the section, as it sets forth the time limits, is meant only to apply to the existence of the remedy offered and not to the existence of the right of action. In support of this argument appellants cite two cases, Bryant v. Whitley 10 and Myers v. Stevenson. 11 Neither of the cited cases support appellants’ assertions. Both cases acknowledge the general rule, as stated in Bryant: 12
“[A] statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits.”
In Bryant the court went on to find the general rule not applicable where the right of action had actually existed prior to the passage of the statute under consideration. In Myers the court stated that there was a tendency to ameliorate the application of the rule where a potential claimant had been denied practical access to the courts by the fact that the existence of the injuries giving rise to a cause of action could not have been known to a potential claimant prior to the expiration of the limitation period under a statute creating a cause of action for medical malpractice for injuries to an unborn child.
Neither of the rationales expressed in Bryant or Myers are applicable in the present case. The cause of action here clearly did not exist prior to the authorizing legislation, and appellants were fully aware of the existence of their cause of action prior to the expiration of the time limits.
In construing the language of the Political Subdivision Tort Claims Act there is one other precept which must be considered; statutes dealing with the relaxation of sovereign immunity from suit are to be strictly construed. 13 To find that this provision, which clearly limits the ability to bring suit under this statutory provision, is capable of being tolled by equitable considerations arising from the actions of third party insurance agents, would in effect eviserate what is obviously intended to be a substantive part of the Political Subdivisions Torts *463 Claim Act, and would clearly be in violation of the cited tenet of statutory construction.
. Infra, nóte 4.
. Infra, note 4.
. See Hiskett v. Wells, infra, note 4; and see also Wood Acceptance Co. v. King, 18 Ill.App.3d 149 , 309 N.E.2d 403 (1974); Sprung v. Rasmussen, 180 N.W.2d 430 (Iowa 1970); Romano v. Romano, 19 N.Y.2d 444 , 280 N.Y.S.2d 570 , 227 N.E.2d 389 (1967); Neff v. Garrard, 216 Va. 496 , 219 S.E.2d 878 (1975).
. Hiskett v. Wells, 351 P.2d 300 (Okla.1959); see also Trinity Broadcasting Corp. v. Leeco Oil Co., 692 P.2d 1364 (Okla.1984); Phillips Petroleum Co. v. United States Fidelity & Guaranty Co., 442 P.2d 303 (Okla.1968). And see Sprung v. Rasmussen, supra note 3 .
. See Lamb v. Young, 250 Or. 228 , 441 P.2d 616 (1968); and see Vecchio v. Sewer Authority, 176 Conn. 497 , 408 A.2d 254 (1979).
. 692 P.2d at 1367 (footnote 9 of the opinion), supra note 4.
. 51 O.S.1981 §§ 151 through 170.
. The Political Subdivision Tort Claims Act has now been superceded by The Governmental Tort Claims Act, 51 O.S.Supp.1984, §§ 151 through 171, effective October 1, 1985.
. Wright v. Consolidated School Dist. No. 1, 162 Okl. 110 , 19 P.2d 369 (1933).
. 70 Ga.App. 864 , 29 S.E.2d 648 (1944), affirmed 198 Ga. 328, 31 S.E.2d 701.
. 125 Cal.App.2d 399 , 270 P.2d 885 (1954).
. 29 S.E.2d at 649 .
. Reynolds v. U.S., 18 F.Supp. 739 (N.D.Okla.1937).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9537207. Public record. Not legal advice.