Bischel v. Merritt

• Decision Date: 30 November 1995
• Docket Number: No. 940559-CA,940559-CA
• Citation: 907 P.2d 275
• Parties: Caren BISCHEL, Plaintiff and Appellant, v. Heather J. MERRITT and Salt Lake County, et al., Defendants and Appellees.
• Court: Utah Court of Appeals

Page 275

907 P.2d 275

Caren BISCHEL, Plaintiff and Appellant, v. Heather J. MERRITT and Salt Lake County, et al., Defendants

and Appellees.

No. 940559-CA.

Court of Appeals of Utah.

Nov. 30, 1995.

Samuel King and Harold J. Dent, Jr., Salt Lake City, for Appellant.

Douglas R. Short, Salt Lake County Attorney, and Michael E. Postma, Deputy County Attorney, Salt Lake City, for Appellees.

Before ORME, P.J., and BENCH and JACKSON, JJ.

OPINION

JACKSON, Judge:

Caren Bischel appeals the trial court's denial of her motion to set aside an order dismissing her personal injury action. Salt Lake County prevailed below on its motion to dismiss Bischel's action for failure to file a notice of claim in accordance with the Utah Governmental Immunity Act. We reverse and remand.

FACTS

On February 1, 1993, Heather J. Merritt, a Salt Lake County employee, caused an automobile accident in which Bischel was allegedly injured. On April 22, 1993, Bischel prepared a notice of claim pursuant to Utah Code Ann. § 63-30-11 (1993) and called the Salt Lake County Commission to determine how and with whom the notice of claim should be filed. Bischel was told to send the notice to Trish McDonald at the Salt Lake County Attorney's Office. Bischel then called McDonald, who confirmed the instructions and provided the proper address for the notice. Bischel sent the notice by certified mail and received a return receipt signed by McDonald.

McDonald and other county employees subsequently negotiated the claim with Bischel. In May 1993, the county issued a $680 check for property damage to Bischel's vehicle. By January 1994, however, Bischel's personal injury claim had not been settled, and she filed the present action. Salt Lake County then moved to dismiss Bischel's lawsuit for lack of subject matter jurisdiction, asserting the claim was not preserved as required by the Utah Governmental Immunity Act. See Utah Code Ann. § 63-30-13 (1993). The County based its motion to dismiss on the single fact that Bischel's notice of claim was addressed to McDonald rather than to the County Commission.

The trial court granted the County's motion. The County, however, failed to give Bischel timely notice of the entry of judgment. See Utah R.Jud.Admin. 4-504(4) (1995). Once she received the trial court's order of dismissal, Bischel filed a motion to set aside that order. ¹ Bischel now challenges the trial court's denial of her rule 60(b) motion.

NOTICE OF CLAIM REQUIREMENT

Bischel argues the trial court abused its discretion when it failed to recognize a mistake and set aside its order. The County responds the trial court made no mistake of law and therefore did not abuse its discretion in refusing to set aside its original order of dismissal. Rule 60(b)(1) provides a trial court may relieve a party of a judgment in case of mistake. ² A judicial error or "mistake of law by the trial court may support a Rule 60(b) motion." Udy v. Udy, 893 P.2d 1097, 1099 (Utah App.1995). Trial courts have discretion to determine whether a mistake of law existed, and we will reverse only if there has been an abuse of that discretion. Id. Under the facts of the present case, we conclude a mistake of law existed; therefore, the trial court abused its discretion when it denied Bischel's rule 60(b) motion.

The Utah Governmental Immunity Act provides that

[a]ny person having a claim for injury against a governmental entity, or against an employee for an act or omission occurring during the performance of his duties, within the scope of employment, or under color of authority shall file written notice of claim with the entity before maintaining an action, regardless of whether or not the function giving rise to the claim is characterized as governmental.

....

... The notice of claim shall be ... directed and delivered to the responsible governmental entity according to the requirements of Section 63-30-12 or 63-30-13.

Utah Code Ann. § 63-30-11 (1993) (emphasis added). The requirements of section 63-30-13 simply provide that

[a] claim against a political subdivision, or against its employee for an act or omission occurring during the performance of his duties, within the scope of employment, or under color of authority, is barred unless notice of claim is filed with the governing body of the political subdivision within one year after the claim arises.

Id. § 63-30-13 (emphasis added). Under these sections, plaintiffs must give timely notice to the governing body of a county to maintain an action against that county.

It is undisputed that Bischel sent a certified notice of claim to the Salt Lake County Attorney's Office and that the County Attorney's Office accepted that notice. The trial court concluded Bischel's formal complaint was barred because Bischel failed to file a proper notice of claim in compliance with the Utah Governmental Immunity Act. To determine the accuracy of the trial court's legal conclusion, we must determine what filing a notice of claim with the governing body practically requires of citizens with claims against political subdivisions of the state. See Brittain v. State ex rel. Utah Dep't of Employment Sec., 882 P.2d 666, 669-70 (Utah App.1994). ³

The statute does not prescribe a specific manner or method for filing notice with the governing body of the political subdivision. Whereas requirements for the form and content of the notice of claim are specifically articulated in the statute, see Utah Code Ann. § 63-30-11(3) (1993), requirements for direction and delivery of the notice must be inferred from the phrase, "notice of claim is filed with the governing body of the political subdivision within one year after the claim arises." Id. § 63-30-13. In other words, although the time requirement is clearly expressed, the statute is generally silent about how notice should be filed with the governing body. Furthermore, the County has not articulated any policy or specific procedure for citizens to file notice of civil claims.

Because the statute does not prescribe specific procedures for direction and delivery of the notice of claim, we will interpret section 63-30-13 "in a manner consistent with the overall purpose of the Utah Governmental Immunity Act." ⁴ Brittain, 882 P.2d at 670. "It is necessary to consider the policy of the notice requirement so that in any particular case the facts can be evaluated to determine if the intent of the statute has been accomplished...." Stahl v. Utah Transit Auth., 618 P.2d 480, 482 (Utah 1980).

"[T]he primary purpose of a notice of claim requirement is to afford the responsible public authorities an opportunity to pursue a proper and timely investigation of the merits of a claim and to arrive at a timely settlement, if appropriate, thereby avoiding the expenditure of public revenue for costly and unnecessary litigation."

Brittain, 882 P.2d at 671 (quoting Stahl, 618 P.2d at 482). Filing notice "tends to minimize the difficulties that may arise due to changes in administrations" and "protects against the passage of time obscuring memory and distorting a plaintiff's recollection of the events which are at the heart of the claim." Id. at 671.

In the present case, Bischel, not finding explicit instructions in the statute but wanting to ensure her notice was directed and delivered correctly, called the County Commission and was instructed to send the notice to Trish McDonald in the County Attorney's office. Bischel took the further step of confirming the County Commission's instruction with McDonald. McDonald agreed she was the proper person to receive the notice and even provided the address where the notice should be filed. Thus, McDonald verified her apparent authority to receive the notice on behalf of the County Commission.

McDonald's instruction to Bischel was certainly reasonable given that the County Attorney's staff investigates and negotiates civil claims against the County. Bischel had no reason to question such a sensible instruction. Bischel's notice enabled the County to investigate the claim and to move toward settlement. Bischel's notice also memorialized the events at the heart of her claim. Bischel thus fulfilled the purpose of the notice requirement by filing notice of her claim with the designated person in the County Attorney's Office.

Considering the duties and authority delegated to the County Attorney's Office, it is evident that the governmental entity entrusted with investigating and settling or defending the claim received the requisite notice well within the one-year period imposed by the statute. Directing and delivering her notice of claim to the County Attorney's Office in no way inhibited settling Bischel's claim without resort to litigation. In fact, given the powers and responsibilities the County has bestowed upon the County Attorney's Office, the opposite is true. See id. at 672. Filing notice with the County Attorney's Office facilitated settlement discussions. Indeed, the County Attorney's Office actively pursued settlement of Bischel's claim, even paying her property damage.

Utah courts have established a rule of strict compliance with the notice provisions of the Utah Governmental Immunity Act. See, e.g., Yates v. Vernal Family Health Ctr., 617 P.2d 352, 354 (Utah 1980); Lamarr v. Utah State Dep't of Transp., 828 P.2d 535, 541 (Utah App.1992). Our holding today is consistent with that rule. The present case is not one in which a plaintiff gave no notice, see, e.g., Madsen v. Borthick, 658 P.2d 627, 628 (Utah 1983), or in which a plaintiff filed only one of the two required notices, see, e.g., Lamarr, 828 P.2d at 540-41. This case is also not one in which the notice of claim was defective in form or content, see, e.g., Cox v. Utah Mortgage & Loan Corp., 716 P.2d 783, 786 (Utah 1986), or in which notice of claim was not filed within the one-year period, see, e.g., Richards v. Leavitt, 716 P.2d 276, 277 (Utah 1985) (per curiam). As required by the statute, Bischel gave...