Brock v. Nyland

Citation955 P.2d 1037
Decision Date13 April 1998
Docket NumberNo. 96SC582,96SC582
Parties98 CJ C.A.R. 1725 Vernalee BROCK and the Regional Transportation District, Petitioners, v. Travis NYLAND, Respondent.
CourtSupreme Court of Colorado

Regional Transportation District, Roger C. Kane, Rolf G. Asphaug, Denver, for Petitioners.

Benjamin Silva III & Associates, P.C., Robert K. Reimann, Lakewood, for Respondent.

Geoffrey T. Wilson, Denver, for Amicus Curiae Colorado Municipal League.

Brian J. Lampert, Englewood, for Amicus Curiae Colorado Trial Lawyers Association.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Garth C. Lucero, Deputy Attorney General, Timothy R. Arnold, Deputy Attorney General, Civil Litigation Section, Tort Litigation Section, Hall & Evans, L.L.C., Thomas J. Lyons, Denver, for Amici Curiae State of Colorado and Colorado Counties, Inc.

Office of the City Attorney, City of Aurora, Charles H. Richardson, Julia A. Bannon, Aurora, for Amicus Curiae City of Aurora.

Justice SCOTT delivered the Opinion of the Court.

In this case, we must decide whether the filing of notice with the claims department of the Regional Transportation District (RTD) satisfies the statutory requirement that "notice shall be filed with the governing body of the public entity or the attorney representing the public entity" as set forth in section 24-10-109(3), 7 C.R.S. (1997). Relying on the plain language of the statute, we conclude that it does not.

Our order granting certiorari in Nyland v. Brock, 937 P.2d 806 (Colo.App.1996) set forth several issues and requires that we decide "[w]hether the court of appeals erred in holding that 'a claimant need only substantially comply with the section 24-10-109(3), 10A C.R.S. (1996 Supp.), requirement that notice be sent to the public entity's governing body or legal counsel.' " By our judgment today, we reject the court of appeals' reliance upon a substantial compliance standard and reverse. 1 Instead, we hold that section 24-10-109(3) requires filing with "the governing board" or "the attorney" and by its plain language does not contemplate compliance otherwise.

I.
A.

The facts of this legal dispute are not in question. On March 23, 1993, while crossing the intersection of 11th Avenue and Peoria Street, respondent Travis Nyland, then of Norfolk, Nebraska, was struck and injured by a bus operated by petitioner RTD. 2 Shortly thereafter, Nyland retained the services of an attorney to seek personal injury payment (PIP) benefits and, in addition, to pursue this negligence action. On April 5, 1993, Nyland's attorney sent a letter to Armonde Hainesworth of the claims department of RTD (claims department) providing notice that he represented Nyland for "both the liability and PIP issues" related to the accident. Further correspondence indicated that Nyland was seeking payment of medical expenses pursuant to the no-fault insurance provisions of the Colorado Accident Reparations Act, §§ 10-4-701 to -725, 3 C.R.S. (1997).

Through his attorney, Nyland sent a total of five letters to the RTD claims department from April through June 1993. Among other things, the letters provided the following information: (1) that the attorney represented Nyland; (2) the address and telephone numbers for Nyland and his attorney; (3) a completed accident questionnaire with the time, place, and a description of the accident; (4) a description of Nyland's injuries; and (5) the amount of Nyland's claim for medical expenses and reimbursement for lost income. The letters described Nyland's injuries in detail, included medical records, and supplied information to support his lost wages claim.

The RTD claims adjuster replied to the letters in the normal course of his assigned duties at RTD, 3 which included requesting "documentation to support the extent of treatment for Mr. Nyland." The various letters, including five from Nyland's attorney, never mentioned litigation or court proceedings, anticipated or otherwise. Instead, the correspondence focused upon Nyland's injuries, treatment, and the costs of the same, as well as lost wages. The claims adjuster did not forward the letters nor any information regarding Nyland's claims to the RTD governing board or its attorney, instead treating the matter as he did other PIP and related claims. 4

In any event, RTD paid Nyland's medical expenses and PIP benefits, reimbursing him for certain medical costs related to his injuries. However, RTD did not pay Nyland's claim for pain and suffering, lost wages, future medical expenses, and future income, all of which he seeks through this litigation.

B.

On December 15, 1993 (267 days after the injury), Nyland's attorney filed a notice of claim with RTD's attorney and its governing body. On December 30, 1994, Nyland filed this action against RTD in the Denver District Court (trial court). The complaint alleged permanent disability, physical pain and suffering, future medical treatment, past and future pain and anguish, loss of future income, permanent disfigurement, and permanent impairment of earning capacity. These injuries were not covered by the claims set forth in the letters Nyland sent to the RTD claims adjuster.

RTD moved to dismiss the suit for failure to comply with the notice provisions of the Colorado Governmental Immunity Act (GIA), which state that written notice must be given within "one hundred eighty days after the date of the discovery of the injury," § 24-10-109(1), 7 C.R.S. (1997), and that, "notice shall be filed with the governing body of the public entity or the attorney representing the public entity," § 24-10-109(3).

The trial court denied the motion to dismiss, finding that "the plaintiff has substantially complied with the notice provision of C.R.S. § 24-10-109" because "[t]he plaintiff's attorney sent five letters to the Claims Department of RTD within 180 days of the accident." Pursuant to section 24-10-108, 7 C.R.S. (1997), RTD appealed the trial court's order as "a final judgment ... subject to interlocutory appeal."

The court of appeals affirmed. Relying upon Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo.1996), and Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo.1990), the court of appeals held that "a claimant need only substantially comply with the § 24-10-109(3) requirement that notice be sent to the public entity's governing body or legal counsel." Nyland v. Brock, 937 P.2d 806, 809 (Colo.App.1996). The court of appeals further held that "based upon the letters he sent to RTD's claims adjuster," Nyland had filed timely notice with the RTD governing body or its attorney. See id.

II.
A.

Under the GIA, a person seeking recourse against a public entity, such as RTD, must notify that entity of any claims against it within 180 days of discovery of the injury. § 24-10-109. Subsection (1) of section 24-10-109 provides that any person asserting a claim under the GIA "shall file a written notice as provided in this section within one hundred eighty days after the date of the discovery of the injury." Id. The place for filing the notice required by section 24-10-109 is set forth in subsection (3), which indicates that when a claim is against the state or an employee thereof, notice shall be filed with the attorney general. As relevant here, the statute further provides:

If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity.

§ 24-10-109(3).

B.

The court of appeals concluded that a plaintiff only needs to achieve substantial compliance with the notice requirement of section 24-10-109(3) and, hence, may meet the notice requirement without filing notice with the governing body or attorney. We disagree, and hold that section 24-10-109(3) of the GIA, by its plain language, anticipates that a litigant against a public entity will file notice with one of two persons. Section 24-10-109(3) identifies the specific persons with whom the notice of claim must be filed. Thus, unless the claim is filed with one of those two persons, a plaintiff may not proceed to judgment against any public entity.

It is axiomatic that when interpreting a statute, we must give effect to the intent of the legislature. See Dawson v. Reider, 872 P.2d 212, 214 (Colo.1994). To discern that intent, we look to the language used by the General Assembly in the statute. If the words used are plain and unambiguous, our task is accomplished by giving effect to the commonly accepted meaning of the words used. See Regional Transp. Dist. v. Voss, 890 P.2d 663, 667 (Colo.1995).

The plain language of section 24-10-109(3) specifically and unambiguously requires that "the notice shall be filed with the governing body of the public entity or the attorney representing the public entity." Id. (emphasis added). As the plain language is clear and unambiguous, we cannot interpret this provision to permit the filing of a notice of claim with any person or entity other than those set forth in the statute, i.e., "the governing body of the public entity or the attorney representing the public entity." See Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo.1992). In essence, the nature or extent of compliance mandated by the statute inheres from the plain language of section 24-10-109(3).

The legislative purpose in passing section 24-10-109(3) was to recognize and insure that the "governing body" or its "attorney" be directly involved, advised, and notified of potential litigation. Consistent with this intention, the legislature used mandatory language: "the notice shall be filed with the public entity's governing body or attorney," as opposed to less restrictive language. The use of the term "shall" with such specifically identified persons militates against a construction that would recognize substantial...

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    ...we have recognized that application of the notice-of-claim provisions cannot turn on the existence of immunity. In Brock v. Nyland, 955 P.2d 1037, 1045 (Colo.1998), we held that even if a claim falls within the statutory exception so that the public entity or employee would be liable, a pla......
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2 books & journal articles
  • Fifteen Years of Colorado Legislative Tort Reform: Where Are We Now?
    • United States
    • Colorado Bar Association Colorado Lawyer No. 30-1, January 2001
    • Invalid date
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    • Colorado Bar Association Colorado Lawyer No. 29-2, February 2000
    • Invalid date
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