Avila v. Wahlquist, 21070

CourtUnited States State Supreme Court of Idaho
Citation890 P.2d 331,126 Idaho 745
Docket NumberNo. 21070,21070
PartiesBlanca Estela AVILA, individually and as parent and natural guardian of Selma Manriquez and Fernando Manriquez, children under 18 years of age, Plaintiff-Appellant, v. Dale Brent WAHLQUIST and the State of Idaho Department of Health and Welfare, a governmental agency, Defendants-Respondents. Twin Falls, November 1994 Term
Decision Date23 February 1995

Larry EchoHawk, Atty. Gen. and Hall, Farley, Oberrecht & Blanton, Boise, for respondents. Steven J. Hippler, argued.

SILAK, Justice.

This is an appeal from an order granting summary judgment and dismissing with prejudice the appellant's tort action against the State of Idaho and its employee arising out of an automobile accident. The district judge held that the appellant failed to serve a notice of tort claim on the State of Idaho within the 180 day time limit as required by the Idaho Tort Claims Act. The appellant also appeals from an order denying a motion to compel production of documents and granting the respondents' motion for a protective order. We affirm.


On August 19, 1991, the appellant Blanca Estela Avila and her children, Selma Manriquez and Fernando Manriquez (collectively Avila) were involved in a traffic accident when a vehicle driven by respondent Dale Brent Wahlquist (Wahlquist) rear-ended Avila's vehicle. Wahlquist was an employee of respondent Idaho Department of Health and Welfare (H & W), and was driving a state-owned vehicle while returning from state business at the time of the accident (Wahlquist and H & W collectively respondents).

Within a week of the accident, Kris Michalk (Michalk), an insurance adjuster hired by the state's Bureau of Risk Management, visited Avila's home to take her statement and photographs of her automobile. According to Avila's affidavit:

... in the course of the representative's investigation, the representative asked me questions regarding the occurrence of the traffic collision and informed me that the State would be handling the damages which had occurred to me.... [D]uring Following this meeting, Michalk wrote to Avila, in a letter dated August 27, 1991, informing her that if she wished to make a claim against the state of Idaho, she needed to fill out and file a notice of tort claim with the Idaho Secretary of State's office. The letter also notified Avila that the notice had to be filed within 180 days of the accident. Michalk enclosed a notice of tort claim form with the letter. Avila claims she is illiterate in the English language and did not understand the adjuster's instructions regarding filing a written claim.

[126 Idaho 747] our conversation, I informed the representative that I had not been feeling well as a result of the accident and that I would be seeking medical treatment.

Avila filed a tort claim notice with the Secretary of State's office on May 28, 1992, approximately nine months after the accident, and filed a complaint for damages in September 1992. In answering the complaint, respondents raised the affirmative defense that Avila failed to file a timely tort claim notice pursuant to the Idaho Tort Claims Act, and later filed a motion for summary judgment. Thereafter, Avila filed a discovery request seeking, among other things, a copy of all investigative reports, memoranda, documents, and photographs executed by any employee of H & W regarding the adjustment of Avila's claim. Respondents objected to this request on the grounds that these items were protected from discovery pursuant to the attorney/client privilege, and by the work product doctrine, as these items belonged in the claim file of the Bureau of Risk Management. Avila filed a motion to compel production of the requested documents, and a notice of deposition by subpoena duces tecum of Michalk, requiring her to bring with her to the deposition the specified documents. Respondents filed a motion for protective order to prevent the deposition of Michalk.

Following a hearing in June 1993, the district court denied Avila's motion to compel and provisionally granted respondents' motion for protective order pending resolution of respondents' motion for summary judgment. After hearing arguments on the motion for summary judgment, the district court issued its Opinion and Order on October 21, 1993, granting the motion. Avila appeals both the order denying the motion to compel, and the order granting summary judgment.


In an appeal from an order of summary judgment, this Court's standard of review is the same as the standard used by the district court in ruling on the motion for summary judgment. East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 681, 837 P.2d 805, 807 (1992). On review, this Court liberally construes the record in the light most favorable to the party opposing the motion, drawing all reasonable inferences and conclusions in that party's favor. Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 272, 869 P.2d 1365, 1367 (1994). Summary judgment shall be granted if the court determines that "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c).


The Idaho Tort Claims Act states that "[n]o claim or action shall be allowed against a governmental entity or its employee unless the claim has been presented and filed within the time limits prescribed by this act." I.C. § 6-908. The Act establishes a 180-day time limit to file a claim:

All claims against the state arising under the provisions of this act and all claims against an employee of the state for any act or omission of the employee within the course or scope of his employment shall be presented to and filed with the secretary of state within one hundred eighty (180) days from the date the claim arose or reasonably should have been discovered, whichever is later.

I.C. § 6-905. All such claims must "accurately describe the conduct and circumstances The accident occurred on August 19, 1991. The notice of tort claim was filed with the state on May 28, 1992, over nine months later. Accordingly, Avila's claim is barred unless she gave some other notice within the 180 day time period. Avila argues that the state knew of the existence of the accident and sent an adjuster to investigate the claim, and therefore, the state was on notice and was not prejudiced in its ability to investigate or process the claim. Avila argues that written or oral notice may be sufficient to satisfy the notice provisions of I.C. § 6-905 as long as the State is not prejudiced by the manner of imparting notice. Citing Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982); Sysco Intermountain Food Serv. v. City of Twin Falls, 109 Idaho 88, 705 P.2d 548 (Ct.App.1985).

[126 Idaho 748] which brought about the injury or damage, describe the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant...." I.C. § 6-907.

This Court recently rejected a similar argument in Friel v. Boise City Housing Authority, 887 P.2d 29 (Idaho 1994). In Friel, we affirmed summary judgment against the claimant, holding that the claimant's actions of notifying the governmental entity's insurance company of her accident and medical expenses failed...

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