Brittain v. State By and Through Utah Dept. of Employment Sec.

• Decision Date: 15 September 1994
• Docket Number: No. 930416-CA,930416-CA
• Citation: 882 P.2d 666
• Parties: Harold BRITTAIN, Plaintiff and Appellant, v. STATE of Utah, by and through UTAH DEPARTMENT OF EMPLOYMENT SECURITY aka Job Service; and the State of Utah, by and through Utah Division of Facilities, Construction and Management, Defendants and Appellees.
• Court: Utah Court of Appeals

Page 666

882 P.2d 666

Harold BRITTAIN, Plaintiff and Appellant, v. STATE of Utah, by and through UTAH DEPARTMENT OF EMPLOYMENT SECURITY aka Job Service; and the State of Utah, by and through Utah Division of Facilities, Construction and Management, Defendants and Appellees.

No. 930416-CA.

Court of Appeals of Utah.

Sept. 15, 1994.

Brent D. Young, Provo, for appellant.

Jan Graham and Debra J. Moore, Salt Lake City, for appellees.

Before DAVIS, JACKSON and ORME, JJ.

OPINION

ORME, Associate Presiding Judge:

Harold Brittain appeals the trial court's order dismissing his personal injury claim for failure to file notice in accordance with the Utah Governmental Immunity Act. We reverse and remand.

FACTS

On February 4, 1991, Brittain was injured when he fell down some icy steps at the Department of Employment Security (Job Service) in Provo, Utah. Shortly after the accident, James Christiansen, a claims adjustor and investigator, contacted Brittain and indicated he would be handling the claim on behalf of Job Service and the Utah Division of Risk Management. On March 11, 1991, Brittain, through his attorney, filed notice of his claim with both the attorney general and the Division of Risk Management. Brittain alleged that melting snow had dripped off the roof of the building and frozen on the steps, that the Division of Facilities Construction and Management (DFCM) was negligent in approving the design and construction of the building, and that both DFCM and Job Service were negligent in maintaining the building and its premises. Christiansen met with Brittain's attorney on March 12, 1991, to discuss settling Brittain's claim. From mid-April through the end of August of 1991, those discussions continued. During that time, Christiansen sent Brittain's attorney six separate letters reaffirming that he was acting as an agent on behalf of Job Service and Risk Management. The settlement discussions failed and Brittain, having sent timely notice of his claim to both the Utah Attorney General and Risk Management, filed this action.

On June 4, 1992, after fifteen months of settlement discussion and extensive discovery, and only four days before the case was to be tried, the State filed a motion to dismiss on the ground that Brittain had failed to file notice of claim with either Job Service or DFCM as required by the Utah Governmental Immunity Act. See Utah Code Ann. §§ 63-30-1 to -38 (1993 & Supp.1994). The trial court, ruling from the bench, granted the State's motion, reasoning that filing notice of claim with Risk Management did not fulfill the necessary requirement of filing notice with "the agency concerned." Id. § 63-30-12. Brittain appeals from this order.

ISSUE

The sole issue presented is whether, given the facts of this case, the trial court erred by concluding that Brittain's serving notice of claim upon Risk Management did not constitute service upon the agency concerned as required by Utah Code Ann. § 63-30-12 (1993).

STANDARD OF REVIEW

We will uphold a trial court's grant of a motion to dismiss "only where it clearly appears that the plaintiff or plaintiffs would not be entitled to relief under the facts alleged or under any state of facts they could prove to support their claim." Prows v. State, 822 P.2d 764, 766 (Utah 1991). On appeal, we accept the facts alleged in the complaint as true, and consider those facts and all reasonable inferences drawn therefrom, in a light most favorable to plaintiff. Demond v. FHP, 849 P.2d 598, 599 (Utah App.1993). Key to our decision is the interpretation of the statute imposing a notice requirement as a prerequisite to bringing an action against the State. The trial court's interpretation of a statute is a legal conclusion which we review for correctness, according no particular deference to the trial court. Jerz v. Salt Lake County, 822 P.2d 770, 771 (Utah 1991).

GOVERNMENTAL IMMUNITY

The doctrine of sovereign or governmental immunity--requiring the consent of the State in order to subject it to suit in its own courts--is a deeply rooted and well recognized doctrine of American common law. See Madsen v. Borthick, 658 P.2d 627, 629 (Utah 1983). The doctrine is a carryover from medieval times, and reflects the notion that the sovereign, in whom reposed ultimate governmental powers, was simply incapable of doing wrong. ¹ The Utah Governmental Immunity Act, see Utah Code Ann. §§ 63-30-1 to -38 (1993 & Supp.1994), which went into effect in 1966, codified the common law principle of sovereign immunity and created various exceptions to the doctrine. Madsen, 658 P.2d at 629-30.

Scores of Utah cases have interpreted this Act and defined the requirements necessary to overcome the State's immunity. ² Among these many cases, courts have, periodically, had occasion to interpret the Act's notice requirements. See, e.g., Cox v. Utah Mortgage & Loan Corp., 716 P.2d 783, 785-86 (Utah 1986); Madsen, 658 P.2d at 630; Sears v. Southworth, 563 P.2d 192, 193-94 (Utah 1977); Scarborough v. Granite Sch. Dist., 531 P.2d 480, 482 (Utah 1975); Lamarr v. Department of Transp., 828 P.2d 535, 540-42 (Utah App.1992); Kabwasa v. University of Utah, 785 F.Supp. 1445, 1446-47 (D.Utah 1990). Strict compliance with the notice requirement has typically been necessary to maintain an action against the State. See Sears, 563 P.2d at 194; Scarborough, 531 P.2d at 482. While defects in the form or content of notices of claim do not always act to bar a claim, see Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179, 1183 (Utah 1983); Spencer v. Salt Lake City, 17 Utah 2d 362, 363-64, 412 P.2d 449, 450 (1966), courts have consistently barred claims in situations where either no notice or only one of the two required notices was filed. See Lamarr, 828 P.2d at 541; Kabwasa, 785 F.Supp. at 1446-47. However, until now, no reported Utah decision has barred a claim when two notices, free of defects, were timely filed. Thus, this appeal presents an issue of first impression and necessitates our careful review of the notice of claim requirements within the Utah Governmental Immunity Act. See Utah Code Ann. §§ 63-30-11 to -13 (1993).

NOTICE OF CLAIM

The 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.

....

A claim against the state, 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 attorney general and the agency concerned within one year after the claim arises ....

Utah Code Ann. §§ 63-30-11, -12 (1993) (emphasis added).

Under these sections, a plaintiff must give timely notice to both the attorney general and "the agency concerned" in order to maintain an action against the State. Neither party disputes that appropriate notice was sent to the attorney general. It is also undisputed that notice was sent to the Division of Risk Management within one year after the claim arose. The trial court found that such notice was deficient because it concluded Risk Management was not "the agency concerned" within the meaning of section 60-30-12. To assess the accuracy of this conclusion we must determine what the Legislature in promulgating section 63-30-12, intended to include within the term "the agency concerned." ³

A. Serving Notice on the Agency Concerned

To interpret a statute, we first examine its plain language and will resort to other methods of statutory interpretation only if we determine that the language is ambiguous. State v. Vigil, 842 P.2d 843, 845 (Utah 1992); Krauss v. Department of Transp., 852 P.2d 1014, 1018 (Utah App.), cert. denied, 862 P.2d 1356 (Utah 1993). The State contends that serving notice on "the agency concerned" plainly requires serving notice on the agency allegedly at fault for the claimant's injuries. However, the Legislature chose not to employ fault-based terminology into the notice requirement of section 63-30-12; instead, it employed the more nebulous and far broader language of "the agency concerned." If the Legislature had intended to require a claimant to serve notice on the agency allegedly at fault, it would have used different language, perhaps requiring that notice be sent to the agency that would have been liable if it were a private party. ⁴

Moreover, the Legislature's decision to employ singular usage and require notice to "the agency concerned" is inconsistent with a fault-based scheme. Unlike the imprecise word "concerned," fault is a more technical concept and fault is frequently shared by multiple parties. If fault were at the heart of determining to whom notice should be sent, singular usage would be avoided and the statute would clearly require that in cases, like the instant one, where two or more agencies are claimed to be at fault, more than two notices of claim would be required--one to the attorney general and an additional notice of claim to every agency which might be at fault. However, the State does not contend, nor do the statute or prior cases suggest, that more than two notices are ever required. ⁵

Because the term "agency concerned" is not clear on its face, we will interpret the notice requirement of section 63-30-12 in a manner consistent with the overall purpose of the Utah Governmental Immunity Act. As explained by the Utah Supreme Court, "[i]t is necessary to consider the policy of the notice requirement so that in any particular...