Conway v. Ohio Cas. Ins. Co., I-89

• Decision Date: 13 September 1983
• Docket Number: No. I-89,No. 56424,I-89,56424
• Citation: 1983 OK 83,669 P.2d 766
• Parties: 13 Ed. Law Rep. 863, 1983 OK 83 James Patrick CONWAY, Individually as Father and Next Friend of Jacklyn Conway, a Minor, Appellant, v. OHIO CASUALTY INSURANCE COMPANY, a Corporation; City of Oklahoma City, a Municipal Corporation; Independent School District, a Public Corporation; and Darrell Cringler, an Individual, Appellees.
• Court: Oklahoma Supreme Court

Page 766

669 P.2d 766

13 Ed. Law Rep. 863, 1983 OK 83

James Patrick CONWAY, Individually as Father and Next Friend of Jacklyn Conway, a Minor, Appellant, v. OHIO CASUALTY INSURANCE COMPANY, a Corporation; City of

Oklahoma City, a Municipal Corporation; Independent School

District No. I-89, a Public Corporation; and Darrell

Cringler, an Individual, Appellees.

No. 56424.

Supreme Court of Oklahoma.

Sept. 13, 1983.

As Corrected Sept. 14, 1983.

CERTIORARI TO THE COURT OF APPEALS, DIVISION NO. 2.

APPEAL FROM DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE WILLIAM R. SAIED, DISTRICT JUDGE.

Plaintiff-appellant appeals from order of District Court granting summary judgment in favor of defendant-appellees on the grounds that failure to give statutory notice of claim barred suit. Certiorari heretofore granted; opinion of Court of Appeals, Division No. 2, which reversed and remanded to District Court is vacated, and the following opinion is substituted in lieu thereof. Judgment of District Court is reversed and remanded in part and affirmed in part.

Michael Gassaway, Hughes, Nelson & Gassaway, Oklahoma City, for appellant.

John M. Perry III, Foliart, Mills & Niemeyer, Oklahoma City, for appellees.

WILSON, Justice.

This appeal now before us on certiorari arose from the District Court's granting of summary judgment in favor of defendant-appellees in a suit brought under the Political Subdivision Torts Claims Act, 51 O.S.1981, § 151, et seq. The Court of Appeals in an unpublished opinion reversed and remanded with directions. That opinion is vacated and the following is substituted in lieu thereof.

The District Court granted summary judgment finding that defendant School District and defendant Darrell Cringler did not receive notice of the claim as required by the Torts Claims Act. After a thorough review of the pleadings and evidentiary materials, we find that the order granting summary judgment should be affirmed as to defendant Ohio Casualty Insurance Company; and reversed as to defendants Independent School District No. I-89 and Darrell Cringler.

The appellants allege in their amended petition that six-year-old Jacklyn Conway was struck by her school bus immediately after disembarking in front of her home on September 14, 1979. The bus driver, Darrell Cringler, did not stop and was later arrested for leaving the scene of an accident. The child suffered severe and permanent injuries to her head and eyes.

Three months after the accident, the child's attorney wrote a letter to the school district's insurer advising it of a claim for injury. The attorney apparently under the misapprehension that the School District was a subdivision of the city of Oklahoma City, sent written notice of the claim to the clerk of Oklahoma City, ¹ rather than to the clerk of the School District as required in 51 O.S.1981, § 156(B), which provides in pertinent part:

"A claim against a political subdivision or employee shall be forever barred unless notice thereof is filed with the clerk of the governing body of the political subdivision within one hundred twenty (120) days after the loss occurs."

In an affidavit attached to the appellees' motion for summary judgment, the Clerk of the Board of Education of the School District stated that she had received no notice of any claim on behalf of Jacklyn Conway. However, attached to the appellants' answers to interrogatories is correspondence of December 19, 1979, from appellants' attorney to the School District's insurance carrier concerning the accident and claim. In response the carrier indicated in a letter dated December 27, 1979, that he was willing to negotiate a settlement. This correspondence occurred well within the 120-day provision of Section 156(B).

The notice to the School District's insurer is analogous to the notice given in Duesterhaus v. City of Edmond, 634 P.2d 720 (Okl.1981). There, we found that the giving of verbal notice to the political subdivision's attorney substantially complied with the notice provision, absent any possibility of prejudice by failure to give written notice.

In Reirdon v. Wilburton Board of Education, 611 P.2d 239 (Okl.1980), this Court emphasized that the purpose of the notice requirement must be kept in mind in order to prevent a construction which would defeat the ends of justice. The purposes of the notice requirement are to further legitimate interests by promoting prompt investigation; by providing the opportunity to repair any dangerous condition and for speedy and amicable settlement of meritorious claims; and to allow the opportunity to prepare to meet possible fiscal liabilities. We find here that none of these interests were prejudiced by the mode of imparting notice of the claim and hold that although the notice given did not conform to the authorized procedures under the Act, it was sufficient to establish substantial compliance. In this...