The opinion
GARRETT, Vice Chief Judge,
dissenting.
FIRST: I agree with Appellant tjhat Ap-pellee waived its governmental immunity to the extent that it was covered by liability insurance.
SECOND: I agree with Appellant that 12 O.S.1991 § 100 permits the case to be refiled within one year after it was dismissed. That constitutes a failure by the Plaintiff “on such action otherwise than upon the merits”.
THIRD: This decision treats a victim of a tort committed by an employee of a governmental agency differently than a victim of a tort committed by a private person or an employee of a private person. The difference is in applying § 100 in favor' of the victim of a private tortfeasor and not in favor of the victim of a governmental tortfeasor. This constitutes a denial of equal protection of law, unless some legitimate state interest exists to justify different treatment of persons in the two classifications. I fail to perceive any such legitimate state interest, cf. Reirdon v. Wilburton Board of Education, 611 P.2d 239 (Okl.1980).
Reliance by the majority on the case of Ceasar v. City of Tulsa, 861 P.2d 349 (Okl.App.1993) is misplaced. It is distinguishable from the case being considered. That plaintiff filed an action against the city prior to the time it had denied plaintiffs claim and prior to the time it was “deemed” denied. The petition was prematurely filed. It did not, and could not state a cause of action because the claim had not been denied. No summons was served. Then, after the claim was denied, the plaintiff allowed more than 180 days to elapse before taking any action in court. The maximum time to serve a summons had expired. Plaintiffs attempt to amend the improperly filed petition in such manner to state a cause of action and the service of summons took place after the action was time barred by the 180 day statute. This Court correctly held the plaintiffs attempt to amend constituted an effort to file the action out of time, and it was time barred. The procedural facts disclosed that § 100 could not rescue the action. The statement by the court in Ceasar , that § 100 does not apply to actions brought under Oklahoma’s Governmental Tort Claims Act, was totally inapplicable to the decision reached, and constituted obiter dictum in its purest form. Ceasar’s action did not fail “otherwise than upon the merits” because § 100 applies only when a case is properly commenced. Ceasar did not file a petition for Certiorari. The case was not ordered published by the Supreme Court, and does not constitute precedent or binding authority.
The majority cites three cases for the statement: “... it has been determined that the Act does not violate due process or equal protection in its different consideration of private and public tortfeasors.” Those cases are: Childs v. State ex rel. Oklahoma State University, 848 P.2d 571, 577 (Okl.1993), cert. denied — U.S. -, 114 S.Ct. 92 , 126 L.Ed.2d 60 ; Griggs v. State ex rel. Oklahoma Department of Transportation, 702 P.2d 1017, 1019 (Okl.1985); Neal v. Donahue, 611 P.2d 1125, 1129 (Okl.1980). None of these eases mention § 100, and they are not authority which is applicable here. The principal holding in these cases was that the doctrine of governmental immunity does not violate the due process or equal protection of laws provisions of the constitution. Section 100 was not involved and was not discussed. Reirdon, supra, states the correct rule. Incidentally, § 100 is not a part of our Governmental Tort Claims Act; it is a portion of our civil code and applies to all actions falling within its provisions.
The Supreme Court of Oklahoma has not considered the issue of whether the savings clause of § 100 applies to tort actions filed against the State of Oklahoma or one of its agencies or sub-divisions. At least, I am not *1173 familiar with such a case, and the majority opinion does not cite one. Until the Supreme Court does decide this issue, it is an open question.
Unless a higher authority so decides, I will not hold that a litigant may be dealt with in a manner violative of his constitutional rights. The technical distinction between a statute of limitations and the so-called right to bring an action does not justify this result.
I respectfully DISSENT.