Cruse v. Board of County Com'rs of Atoka County
| Decision Date | 19 December 1995 |
| Docket Number | No. 81733,81733 |
| Citation | 910 P.2d 998,1995 OK 143 |
| Parties | Harry CRUSE and Maude Cruse, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF ATOKA COUNTY, Oklahoma, Appellee. |
| Court | Oklahoma Supreme Court |
Joey Chiaf, Chiaf & Chiaf, Oklahoma City, Oklahoma, Neil Whittington, Atoka, Oklahoma, for appellants.
Theresa McGehee, District Attorney, Jeff Mixon, Assistant District Attorney, Durant, Oklahoma, for appellee.
The issue presented is whether a timely filed governmental tort claims action may be refiled pursuant to 12 O.S.1991, § 100. We hold that 12 O.S.1991, § 100 operates to allow the refiling of a timely-filed governmental tort claims action within one year from the date the governmental tort claims action failed other than on its merits. We further find that this case must be remanded for the district court to determine whether the action is barred by 51 O.S.1991, § 155(8).
On May 6, 1990, the appellant, Harry Cruse, drove his automobile into a washout on a county road in Atoka County, Oklahoma, resulting in personal and property injury. On May 15, 1990, the appellants (Cruse) mailed a notice of claim for damages arising out of the May 6th incident to the Board of County Commissioners of Atoka County (Board). The notice was received by the Atoka County Clerk on May 16, 1990. The Board did not act upon the claim and it was deemed denied on August 14, 1990.
On January 10, 1991, Cruse timely filed a governmental tort claims action in the district court of Atoka County against the Board, alleging that the Board failed to adequately: 1) maintain the road, 2) manage the drainage around the road, 3) discover the washout area, and 4) warn drivers of the washout. In its answer, the Board denied the negligence allegations and alleged that any defect in the county road was due to weather conditions for which the Board is not liable pursuant to 51 O.S.1991, § 155(8). On February 18, 1992, the Board filed a motion for summary judgment asserting sovereign immunity pursuant to the exemption in On January 19, 1993, Cruse refiled the governmental tort claims action against the Board in the district court of Atoka County. The Board filed a motion to dismiss contending that 12 O.S.1991, § 100 does not apply to a governmental tort claims action to allow refiling of the action after the expiration of the 180-day time period specified in 51 O.S.1991, § 157(B). The district court dismissed the action. The Court of Appeals affirmed the dismissal, relying upon 51 O.S.1991, §§ 157 and 170 and Johns v. Wynnewood School Board of Education, 656 P.2d 248 (Okla.1982). We previously granted certiorari.
§ 155(8). On March 4, 1992, prior to a ruling on summary judgment Cruse dismissed the action without prejudice to refiling.
Cruse contends that the right to maintain this action was preserved upon timely compliance with the provisions of 51 O.S.1991, §§ 156 and 157; that 51 O.S.1991, § 164 expressly subjects a timely-filed governmental tort claims actions to all Oklahoma civil procedure law; and, the Governmental Tort Claims Act does not expressly preclude application of 12 O.S.1991, § 100 to allow refiling. The Board contends that the trial court lacked subject matter jurisdiction because the refiled action was not filed within 180 days after the claim was deemed denied under § 157; that the Governmental Tort Claims Act creates the right to file an action and the 180-day time limitation is a condition upon that right; and, that failure to fulfill the condition extinguishes the right. 1
Title 12 O.S.1991, § 100 operates to allow the refiling of common law 2 and statutory actions. 3 12 O.S.1991, § 100, provides:
If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.
Prior to enactment of the Governmental Tort Claims Act, 4 § 100 operated to allow the refiling of an action against a governmental entity outside the applicable time limitation. In Valley Vista Development Corporation, Inc. v. City of Broken Arrow, 5 this Court determined that § 100 operated to allow the refiling of a contract action against a municipality. The original action had failed because the plaintiff did not present evidence relating to the city's budget and debt limitations as required by statute to vest the court with authority to render a money judgment against the municipality. Valley Vista concluded that the failure of an action because the court lacked authority to render a judgment against a municipality constituted a failure otherwise than on the merits within the unambiguous provisions of § 100. 6 In Herwig v. City of Guthrie, 7 the Court held that § 100 operates to allow the refiling of a nuisance case against the municipality, where the timely-filed action was dismissed without prejudice and refiled after the initial statute of limitations had expired. In City of Tulsa The remedial nature and liberal application of § 100 9 was part of our law when the Political Subdivision Tort Claims Act was enacted. 10 Section 14 of the Political Subdivision Tort Claims Act, provided that the laws and statutes of the State of Oklahoma shall apply and govern all actions brought under the act to the extent that the laws are not inconsistent with the provisions of the act. 11 A plain reading of § 14, codified at § 164, is that § 100, would apply to a tort action against a political subdivision. 12 Application of § 100 to tort actions against a political subdivision is supported by the reasoning in Conway v. Ohio Casualty Insurance Company, 13 finding that § 164 is authority for application of 12 O.S.1981, § 323. 14
v. Myrick, 8 § 100 operated to allow the refiling of an action to recover damages suffered when the plaintiff fell into an excavation in one of the city streets.
The Political Subdivision Tort Claims Act was amended and became the Governmental Tort Claims Act. 15 Unchanged, 51 O.S.Supp.1978, § 164, was left intact as a part of the Governmental Tort Claims Act. There were no provisions in the Political Subdivision Tort Claims Act, nor are there any in the Governmental Tort Claims Act, which expressly proscribe application of § 100 to a governmental tort claims action. Accordingly, § 100 is applicable to a governmental tort claims actions unless its application is inconsistent with our construction of the Governmental Tort Claims Act.
When this Court repudiated the common law doctrine of sovereign immunity as a bar to governmental tort claims effective as to claims or causes of action accruing after 12:01 a.m., October 1, 1985, 16 the Legislature enacted the Governmental Tort Claims Act. 17 The Governmental Tort Claims Act adopted the common law doctrine of sovereign immunity and then partially waived the immunity, providing: first, "The State of Oklahoma does hereby adopt the doctrine of sovereign immunity(.)" 18 and then, "The state, only to the extent and in the manner provided in this act, waives its immunity and that of its political subdivisions." 19 The doctrine of sovereign immunity embodied the "concept that the courts were a part of government and could not be used to enforce claims against the government without the express permission of the government." 20 The Governmental Tort Claims Act expressly withholds consent to judicial enforcement of tort claims against the government, state or local, and then expressly consents to judicial enforcement The extent to which a tort claim may be judicially enforced against the government is prescribed in various sections such as § 154 limiting the amount of governmental liability and removing the government from joint liability. The manner in which a party may overcome sovereign immunity and maintain an action against the government is narrowly structured 22 by the procedural prerequisites in §§ 156 and 157. The pertinent provisions of 51 O.S.1991, § 156 provide:
of tort claims "to the extent and in the manner provided." 21
A. Any person having a claim against the state or a political subdivision within the scope of this act shall present a claim to the state or political subdivision for any appropriate relief including the award of money damages.
B. Claims against the state or a political subdivision are to be presented within ninety (90) days of the date the loss occurs. In the event a claim is presented following ninety (90) days after the loss occurs, but within one (1) year after the loss occurs, any judgment in a lawsuit arising from the act which is the subject of the claim shall be reduced by ten percent (10%). A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.
C. A claim against the state shall be in writing ...
D. A claim against a political subdivision shall be in writing ...
E. ... The time for giving written notice of claim pursuant to the provisions of this section does not include the time during which the person injured is unable due to incapacitation from the injury to give notice, not exceeding ninety (90) days of incapacity.
51 O.S.1991, § 157 provides:
A. A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the interested parties have reached a settlement before the expiration of that period. A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. The claimant and the state or political subdivision may continue attempts...
To continue reading
Request your trial
-
Tulsa Indus. Auth. v. City of Tulsa, 105,460.
...its use to secure relief by judicial procedure, and is thus distinguished from a “cause of action.” Cruse v. Bd. of Cnty. Comr's of Atoka Cnty., 1995 OK 143, n. 34, 910 P.2d 998, 1004; Landry v. Acme Flour Mills Co., 1949 OK 170, 211 P.2d 512, 515. See also Roberts v. Merrill, 1963 OK 250, ......
-
Crawford ex rel. C.C.C. v. OSU Med. Trust
...found the general laws and rules of civil procedure apply when the GTCA does not speak specifically to a matter. See Cruse v. Bd. of Cty. Comm'rs of Atoka Cty. , 1995 OK 143, ¶ 17, 910 P.2d 998, 1005 (holding 12 O.S.1991 § 100 applies to a GTCA claim when the action was timely-filed in dist......
-
Sisk v. JB Hunt Transport, Inc.
...We have previously recognized that the savings statute, 12 O.S. § 100, is remedial, not substantive. Cruse v. Board of County Commissioners of Atoka County, 1995 OK 143, 910 P.2d 998, 1001. Hence, § 100 is a true statute of ¶ 3 Section 100 cannot be considered either a jurisdictional limita......
-
Tice v. Pennington, 94,171.
...Court has characterized the Act's time limitation as constituting a condition upon the right to pursue a claim.2 Cruse v. Atoka County Board of Commissioners, 1995 OK 143, ¶ 16, 910 P.2d 998, ¶ 13 Thus, the definitive question to be answered here is whether the failure to file a claim again......