Alburtus v. Indep. Sch. Dist. No. 1 of Tulsa Cnty.
| Decision Date | 29 May 2020 |
| Docket Number | No. 118,670,118,670 |
| Parties | Bradley ALBURTUS and Bobbie Alburtus, Plaintiffs/Appellants, v. INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA COUNTY, Oklahoma, Defendant/Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Chris Knight, Tulsa, Oklahoma, For Plaintiffs/Appellants,
Matthew P. Cyran, ROSENSTEIN, FIST & RINGOLD, Tulsa, Oklahoma, For Defendant/Appellee.
Opinion by Kenneth L. Buettner, Judge:
¶1 Plaintiffs/Appellants Bradley and Bobbie Alburtus (Appellants) appeal from an order dismissing with prejudice their claims against Defendant/Appellee Independent School District No. 1 of Tulsa County (School). School asserted it was immune from suit because Appellants failed to give the notice required under the Governmental Tort Claims Act (GTCA). The record shows School told Appellants to deal with School's insurer, School approved and paid part of Appellants' claim, and School's insurance agent indicated to Appellants' counsel their written notice was sufficient to trigger the GTCA timelines; only after Appellants filed suit did School change its position and assert the notice was insufficient. On de novo review, we hold Appellants' notice of claim was sufficient under the facts presented here. We reverse and remand for further proceedings.
¶2 In their 2019 Petition, Appellants asserted Bradley Alburtus was injured in 2016 when, as a result of negligence, one of School's buses rear-ended his truck, causing physical and economic damages.1 Appellants asserted they had complied with the requirements of the GTCA before filing suit.
¶3 School responded with its motion to dismiss, asserting Appellants had never given School the written notice of tort claim required by the GTCA. School asserted Appellants had communicated with School's insurer, but they had not given any notice to School, and their time to do so had expired so their claims were barred as a matter of law.
¶4 Appellants countered that they had substantially complied with the GTCA's notice requirement by giving written notice to the insurance representative School told them to contact. Appellants further asserted that School was estopped from challenging the notice because in response to their counsel's question, School's insurance representative had stated that the GTCA's 90 day period for School to pay or deny the claim had begun and Appellants' Petition was timely based on that statement. Appellants finally asserted the fact that School had paid his property damage claim showed School had notice of his claim.
¶5 Appellants attached Bradley Alburtus's affidavit, in which he averred the collision occurred November 7, 2016; he called Tulsa Public Schools and spoke to a woman who told him School does not do anything with regard to traffic collision claims and to submit everything to a company called ASC; Alburtus called ASC and spoke to Bob J. Collier; at Collier's request, Alburtus emailed Collier November 8, 2016, and gave him information about his truck and insurance as well as contact information; during November 2016, Alburtus and Collier exchanged calls and emails, including Collier giving Alburtus a claim number and Alburtus stating "please let this email serve as notice that I will be filing a bodily injury claim with your company, ...."; Alburtus emailed Collier November 25, 2015 advising him of his medical expenses to date and demanding payment by December 15, 2016; Collier emailed Alburtus December 1, 2016 and stated "as far as (bodily injury), we can't do anything with it until you('re) done treating, then we will have to audit the billing, ... since you're dealing with a school and (taxpayers') money, it's a bit different (than) if you were dealing with a private insurance company"; Collier and Alburtus settled his property damage claim and Alburtus signed the release December 9, 2016, on which he wrote that it was not intended to release his bodily injury claim; Collier never told him he needed to submit notice to anyone else and after he did not receive an offer to settle his bodily injury claim, he hired his counsel. Appellants attached the email correspondence between Collier and Bradley Alburtus, as well as the release naming School and Brad Alburtus as the parties to the agreement.
¶6 Appellants also attached the affidavit of their counsel, Chris Knight, who averred that Appellants hired him after settling the property damage claim; Knight believed Alburtus's November 25, 2016 email outlining all of his damages may have been sufficient to be the required written notice to trigger the 90 day claim review period; Knight called Collier and asked if the 90 days had begun or if he still had one year from the date of the collision to submit written notice of the claim, and Collier responded that he considered the cumulative effect of all of the emails between Bradley Alburtus and Collier to constitute the required written notice and that the 90 days was running; Knight told Collier he would therefore set a calendar reminder to file suit 180 days after the 90 day period expired; based on Collier's statement, Knight decided the safest day to consider the 90 days beginning was November 8, 2016, and after that 90 day period he filed suit within 180 days. Appellants also attached a December 20, 2016 letter from Knight to Collier which stated he was representing Alburtus and included the date of the accident, the name of the insured (Tulsa Public Schools), and the claim number. Appellants also requested additional time in which to obtain discovery to support their response to the motion to dismiss, which the trial court denied.
¶7 School replied that none of those facts were relevant because Appellants never submitted written notice to School's clerk, as required by the GTCA. School did not attach any evidentiary materials countering Appellants' assertions.
¶8 Following a hearing, the trial court granted the motion to dismiss with prejudice, finding that Appellants never gave written notice of their claim to School as required by the GTCA and therefore the court lacked jurisdiction. In the hearing transcript, the trial court acknowledged cases finding substantial compliance with the notice requirements had not been overruled. The court indicated counsel for Appellants had done nothing wrong and Appellants had "an excellent set of facts" for appeal.
¶9 Although Appellants attached evidentiary materials to their response to the motion to dismiss, because School sought dismissal based on lack of jurisdiction, the motion was not converted to one for summary judgment. Ford v. Tulsa Public Schools , 2017 OK CIV APP 55, ¶8, 405 P.3d 142.2 An order dismissing a Petition is subject to de novo review. Id ., citing Wilson v. State ex rel. State Election Bd. , 2012 OK 2, ¶4, 270 P.3d 155. We Wilson, at ¶4. ¶10 Watkins v. Central State Griffin Memorial Hospital , 2016 OK 71, ¶21, 377 P.3d 124.
¶11 Section 156 of the GTCA outlines the notice requirement. "A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs." 51 O.S.Supp.2012 § 156(B). "A claim against a political subdivision shall be in writing and filed with the office of the clerk of the governing body." 51 O.S.Supp.2012 § 156(D). The record here shows no dispute that what Appellants believed was notice was submitted in writing and within one year of the loss and Appellants filed suit within the statutory time allowed following the purported notice. The only question is whether the submission of written notice to Collier was effective notice to School.
¶12 At least two Oklahoma Supreme Court decisions have found notice given to an insurance agent may satisfy Section 156 in certain circumstances.
The view that notice to the insurance agent constitutes substantial compliance is in accord with our recent decision of Conway .... We reiterate that the notice to the insurance carrier is not an authorized procedure under the Act, but with respect to the purposes sought to be accomplished under the notice provisions, the appellee was not prejudiced by the manner of imparting notice .
Lucas v. Independent Public School Dist. No. 35 of Holdenville , 1983 OK 121, ¶6, 674 P.2d 1131, citing Conway v. Ohio Cas. Inc. Co. , 1983 OK 83, 669 P.2d 766 (both superceded on other grounds in Minie v. Hudson , 1997 OK 26, 934 P.2d 1082 ; emphasis added). And in at least one case, a city has asserted a letter to an insurance agent was notice of a claim which triggered the 90 day claim review period as support for its assertion the limitations period had expired. See Duncan v. City of Stroud , 2015 OK CIV APP 28, 346 P.3d 446. There the Court of Civil Appeals found the letter did not trigger the 90 day period in part because it did not include a demand and therefore was not an adequate notice of claim under the GTCA.
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