Foster v. McFadden

SCHWEITZER, Acting P. J.

I dissent. I agree with the majority that plaintiff did not substantially comply with the provisions of the claims act, and that the district is not estopped to assert the defense of noncompliance. My dissent is directed solely at their conclusion that the letter of February 29, 1968, from plaintiff’s attorney to “John McFallon,” quoted in footnote 2 of the majority’s opinion, constitutes a claim within the meaning of section 910.8, and that since the district gave no “notice of insufficiency,” it has waived the defense of non compliance. (§ 911.) In my opinion the facts support only one conclusion, that as of February 29, 1968, plaintiff’s attorney did not intend that his letter be deemed a claim against the district. His intent as of that date is the crucial issue; the action taken by the district and its insurance carrier following receipt of the letter is irrelevant.

The letter of February 29, 1968 was addressed solely to “John McFallon.” 1 It asked him to forward the letter to his insurance carrier, and if he *950 did not carry insurance, for him to notify plaintiff’s attorney. Except for the date and place of an accident, the letter set forth no details with respect thereto. It did not identify “McFallon” as an. employee of the district, although it is reasonable to infer such intent since the letter was addressed to him at the district’s office and a copy thereof was sent to the district. The letter did not indicate that “McFallon” was involved in the purported accident while acting within the course and scope of his employment, although a claim thereof might be inferred; on the other hand, since the letter was not addressed to the district, it is just as reasonable to infer that “McFallon’s” involvement was personál and that the attorney merely wanted to alert “McFallon’s” employer of the incident. The letter made no claim or demand on the district; it requested no information from or action by the district; at most all that plaintiff did with respect to the district was to give it information of the date and place of an accident involving a person by the name of “McFallon.”

Section 910.8 is expressly limited in application to situations where a defective claim is presented against a governmental entity; I find no indication therein, or in the legislative history cited by the majority (2 Cal. Law Revision Com. Rep. (1959) A-122—A-124) of an intent to make sections 910.8 and 911 applicable to a situation where, as here, no claim is presented against the governmental entity. As stated in Stromberg, Inc. v. L. A. County Flood etc. Dist., 270 Cal.App.2d 759, 764 [ 76 Cal.Rptr. 183 ], “if in fact no claim was filed, plaintiff cannot assert a duty on the part of the county to notify it of ‘insufficiency of claim’ under sections 910.8 and 911, Government Code [footnote omitted], or of its failure to file a claim or advise it to do so. [Citation.]”

My colleagues seek to distinguish Stromberg by asserting that the “Mc-Fallon” letter “performed the function of a claim. ... It inferentially requested that the district forward the letter to its insurance earner. The district by its reply to the letter, identified the letter for what it was—an unlabeled and deficient claim by plaintiff against the district. ...”

I disagree with this reasoning. The letter did not perform the function of a claim; it was not addressed to and made no demand on the district; it was not intended to be a claim against the district. I find nothing in the letter wdtich can be construed as a request to the district to forward the letter to its insurance carrier; even if such request can be inferred, that fact cannot change the intent of the letter from a preliminary inquiry and request of “McFallon” for the name of his insurance carrier.

The majority then place great significance on the district’s letter in reply; apparently because of doubt that the “McFallon” letter constituted a claim *951 under section 910.8, they “bootstrap” their position by arguing that such doubt was removed when the district “identified the letter for what it was— an unlabeled and deficient claim.” This quotation is unsupported by the record; the district’s letter in reply did not refer directly or indirectly to the “McFallon” letter as a claim; it was addres_sed to plaintiff’s attorney, referred to his file number, set forth the name, address and telephone number of the district’s insurance carrier, and suggested that further correspondence be directed to the carrier. The action taken by the district was similar to that which any employer would probably take if advised that one of its employees had been involved in an accident, the details of which were unknown to the employer. It is unreasonable to hold that this minimal action by the district in response to the “McFallon” letter changed the legal significance thereof from a letter of inquiry to a claim against the district.

The facts presented support only one conclusion—since no claim was filed, no duty was imposed on the district to notify plaintiff of “insufficiency of claim” under sections 910.8 and 911; the district did not waive its defense of noncompliance with the claims act.

I would affirm the judgment.

The district had no employee named “John McFallon”; it had an employee named “John McFadden” who later became a party defendant in this action.