holding that the "remedial nature and liberal application" of § 100 operate to allow the refiling of a governmental tort claims action within one year from the date the original timely filed governmental tort claims action failed other than on its merits
How later courts described this case
- holding that the "remedial nature and liberal application" of § 100 operate to allow the refiling of a governmental tort claims action within one year from the date the original timely filed governmental tort claims action failed other than on its merits
- addressing the procedural uniformity mandate and interdiction of special laws that regulate limitation of actions for public torts and private wrongs
- savings statute applied to seetion of governmental claims act where phrase "shall be forever barred" was not used
- savings statute applied to section of governmental claims act where phrase "shall be forever barred" was not used
Written by the judges who cited it.
The opinion
SUMMERS, Justice,
concurring,
with whom WATT, Justice joins.
The dissent perceives the majority’s opinion as declaring 51 O.S.1991 § 157(B) a true statute of limitations. I do not read it that way. My view is that even if § 157(B) is a condition on the right to sue, which I believe it is, a defendant is entitled to its protection only until the plaintiff has brought a timely suit. Once a plaintiff has timely sued, satisfying the statute by which the action is created, then § 100 kicks in to allow dismissal and refiling one time. The substantive time bar did not lapse; the right did not die. And that is because the substantive statute was fully satisfied by the original filing. Such is the status of our jurisprudence on allowing § 100 to keep alive claims created only by statute. Amsden v. Johnson, 74 Okla. 295 , 158 P. 1148 (1916) (action to enforce mechanic’s lien); Rock Island Mining Co. v. Allen, 106 Okla. 188 , 233 P. 1060 (1924) (wrongful death action).
Section 100 is broadly written:
If any action is commenced within due time ... the plaintiff ... may commence a new action ... although the time limit for commencing the action shall have expired .... (emphasis mine)
“Any action” is broad enough to include common law actions as well as ones created by statute. “Time limit” is broad enough to include true statutes of limitation as well as statutes conditioning the right to sue.