Athay v. Stacey

• Decision Date: 15 October 2008
• Docket Number: No. 33785.,33785.
• Parties: Kyle ATHAY, Plaintiff-Appellant, v. Dale M. STACEY, individually and in his official capacity as Sheriff of Rich County, Utah; Rich County, Utah, a political subdivision of the State of Utah; Gregg Athay, individually and in his official capacity as Captain of the Sheriff's Department of Bear Lake County, Idaho; and Bear Lake County, Idaho, a political subdivision of the State of Idaho, Defendants-Respondents.
• Court: Idaho Supreme Court

196 P.3d 325

146 Idaho 407

Kyle ATHAY, Plaintiff-Appellant, v. Dale M. STACEY, individually and in his official capacity as Sheriff of Rich County, Utah; Rich County, Utah, a political subdivision of the State of Utah; Gregg Athay, individually and in his official capacity as Captain of the Sheriff's Department of Bear Lake County, Idaho; and Bear Lake County, Idaho, a political subdivision of the State of Idaho, Defendants-Respondents.

No. 33785.

Supreme Court of Idaho, Pocatello, April 2008 Term.

October 15, 2008.

Rehearing Denied October 15, 2008.

Craig R. Jorgensen, Pocatello, for appellant.

Naylor & Hales, P.C., Boise, for respondents Gregg Athay and Bear Lake County. Kirtlan Naylor argued.

Stirba & Associates, Salt Lake City, Utah, and E.W. Pike & Associates, Idaho Falls, for respondents Dale Stacey and Rich County. Peter Stirba argued.

SUBSTITUTE OPINION.

THE COURT'S PRIOR OPINION DATED JUNE 18, 2008 IS HEREBY WITHDRAWN.

EISMANN, Chief Justice.

This is an appeal from the grant of summary judgment dismissing this action brought to recover damages for the Plaintiff's injuries sustained when his vehicle was struck by a motorist fleeing at high speed to avoid arrest. The Sheriff from Rich County, Utah, had pursued the fleeing Mustang from Utah, through Wyoming, and into Bear Lake County, Idaho. After attempting unsuccessfully to stop the Mustang by using spike strips, deputies from Bear Lake County joined in the pursuit. The district court held that the complaint must be dismissed as to all defendants for various reasons including that the plaintiff failed to comply with the notice of tort claim requirements of the Idaho Tort Claims Act, the plaintiff failed to post a bond as required by Idaho Code § 6-610, and the conduct of the defendants did not rise to the level of reckless disregard. We affirm the dismissal as to all defendants except Rich County.

I. FACTS AND PROCEDURAL HISTORY

On June 10, 1999, Kyle Athay (Plaintiff) was injured when his automobile was slammed into by a Mustang being driven by Darrell Ervin, who was fleeing pursuing law enforcement officers. Rich County Sheriff Dale Stacey commenced pursuing the Mustang in northern Utah and followed it for about sixty miles through Wyoming and into Idaho. Once the pursuit entered Bear Lake County, Idaho, it was joined by Bear Lake County Deputies Gregg Athay and Chad Ludwig who followed behind Sheriff Stacey. Plaintiff had pulled off the highway and stopped to help at the scene of a deer-vehicle collision on the highway about three miles north of Montpelier. As he was pulling back onto the highway, the Mustang crashed into his car.

On April 19, 2002, the Plaintiff¹ filed this lawsuit against Sheriff Dale Stacey and Rich County, Utah, against Deputies Gregg Athay² and Chad Ludwig, and against Bear Lake County and its Sheriff, Brent Bunn. The district court granted the Defendants' motions for summary judgment, and the Plaintiff appealed. This Court affirmed the dismissal as to Sheriff Brent Bunn and Deputy Chad Ludwig, vacated the summary judgments as to the remaining Defendants, and remanded the case for further proceedings. Athay v. Stacey, 142 Idaho 360, 128 P.3d 897 (2005) (Athay I).

On July 10, 2006, Deputy Athay and Bear Lake County moved for summary judgment on the grounds that prior to filing this lawsuit the Plaintiff had not posted the bond required by Idaho Code § 6-610 and had not given adequate notice of tort claim as required by Idaho Code §§ 6-906 and 6-907. Sheriff Stacey and Rich County joined in the motion. The district court held that the required bond had not been posted and that the notice of tort claim was not adequate to put Bear Lake County on notice that a claim was being pursued against Deputy Athay. The court therefore dismissed this lawsuit as to Deputy Athay and Sheriff Stacey. It reserved ruling on Rich County's claim that the notice of tort claim did not comply with Idaho Code § 6-907 because the Plaintiff had not had adequate time to respond to that argument.

On July 31, 2006, Rich County again moved for summary judgment, contending that the notice of tort claim was not timely under Idaho Code § 6-906 and that the conduct of Sheriff Stacey did not rise to the level of reckless disregard. Bear Lake County joined in the motion alleging that the notice of tort claim served upon it was not sufficient to put it on notice of a claim that it was liable for the conduct of Sheriff Stacey. The district court held that the Idaho Tort Claims Act, I.C. §§ 6-901 et seq., applies to Sheriff Stacey and that the notice of tort claim given to Rich County was untimely. The court also ruled that Sheriff Stacey's conduct did not rise to the level of reckless disregard. With respect to Bear Lake County, the district court ruled that the conduct of its employees did not rise to the level of reckless disregard. The court granted summary judgment dismissing Plaintiff's remaining claims against Rich County and Bear Lake County. The Plaintiff then timely appealed.

II. ISSUES ON APPEAL

1. Did the district court err in dismissing the complaint as to Deputy Athay because the Plaintiff had not posted the bond required by Idaho Code § 6-610?

2. Did the district court err in dismissing the complaint as to Sheriff Stacey because the Plaintiff had not posted the bond required by Idaho Code § 6-610?

3. Did the district court err in dismissing the complaint as to Bear Lake County?

4. Did the district court err in dismissing the complaint as to Rich County?

5. Did the district court err in holding that Ervin and Sheriff Stacey were not acting in concert?

6. Is either the Plaintiff, Sheriff Stacey, or Rich County entitled to an award of attorney fees on appeal?

III. ANALYSIS

A. Did the District Court Err in Dismissing the Complaint as to Deputy Athay because the Plaintiff Had Not Posted the Bond Required by Idaho Code § 6-610?

Idaho Code § 6-610³ requires that a plaintiff filing a civil lawsuit against a law enforcement officer for a claim arising out of, or in the course of the performance of the officer's duty must file a bond at the same time that the plaintiff files the complaint. The purpose of the bond is to ensure diligent prosecution of the lawsuit and the payment of all costs and expenses, including a reasonable attorney's fee, that may be awarded against the plaintiff. If the plaintiff does not file the bond, and the defendant law enforcement officer objects, then the court must dismiss the lawsuit. It is undisputed that the Plaintiff in this case did not post the bond required by Section 6-610.

Relying upon Kent v. Pence, 116 Idaho 22, 773 P.2d 290 (Ct.App.1989), the Plaintiff argues that Idaho Code § 6-610 was impliedly repealed by the enactment of Idaho Code § 6-918A.⁴ The latter statute requires a finding of bad faith to award attorney fees in actions brought under the Idaho Tort Claims Act and provides that the right to recover attorney fees in such actions is governed exclusively by the Act. In Kent, the Court of Appeals held that Idaho Code § 6-918A prevented an award of attorney fees under Idaho Code § 12-121 in an action brought under the Tort Claims Act. The reasoning of the Kent opinion has no bearing on the issue of whether the Plaintiff was required to post the bond required by Idaho Code § 6-610.

As originally enacted in 1953, Idaho Code § 6-610 provided for the award of attorney fees to the prevailing party in actions against any "person charged with the duty of enforcement of the criminal laws of this state, or service of civil process, when such action arises out of, or in the course of the performance of his duty." In 1971, the Idaho legislature enacted the Idaho Tort Claims Act, granting the right to recover against governmental entities for the negligent or otherwise wrongful conduct of their employees while acting within the course and scope of their employment. Ch. 150, § 1, 1971 Idaho Sess. Laws 743. In 1978, the legislature amended the Act to add Idaho Code § 6-918A, which provides that the prevailing party in a civil action for money damages brought under the Act can recover attorney fees only if the party against whom attorney fees are sought acted in bad faith in the commencement, conduct, maintenance or defense of the action. Ch. 272, § 6, 1978 Idaho Sess. Laws 630, 633-34. Because Section 6-610 did not include the bad faith requirement for the award of attorney fees, there was a conflict between the two statutes in cases that would be covered by both of them.

In 1997, however, the legislature eliminated that conflict. It amended Section 6-610 so that it no longer provides for the awarding of attorney fees in actions brought against law enforcement officers. Ch. 131, § 1, 1997 Idaho Sess. Laws 398, 398-99. After that amendment, Section 6-918A provides the exclusive authority for the awarding of attorney fees in civil actions for money damages that are brought under the Idaho Tort Claims Act. In actions brought under the Act against a law enforcement officer, Section 6-610 simply requires the posting of a bond to secure the payment of any costs and attorney fees that may be awarded to the officer in the action.

The Plaintiff also argues that Section 6-610 cannot be applied to him because he is indigent and could not have afforded to post the required bond. The Plaintiff does not point to any sworn statement in the record showing that he was indigent when he filed this case. Since the trial court has discretion in setting the amount of the bond and was not asked to do so, we can only speculate as to what amount the Plaintiff would have been required to pay.

Assuming that he could not pay whatever that amount would have been, Idaho Code § 31-3220(2) provides that "[t]he court may authorize the commencement or defense of any action without prepayment of fees, costs or security, by any indigent person not a prisoner." The person seeking to commence the lawsuit must file an affidavit showing that ...