Cummings v. City of Lakin, 89,674.

• Decision Date: 12 December 2003
• Docket Number: No. 89,674.,89,674.
• Citation: 80 P.3d 356,276 Kan. 858
• Parties: CONNIE J. CUMMINGS, Appellant, v. CITY OF LAKIN, KANSAS, Appellee.
• Court: Kansas Supreme Court

276 Kan. 858

80 P.3d 356

CONNIE J. CUMMINGS, Appellant, v. CITY OF LAKIN, KANSAS, Appellee.

No. 89,674.

Supreme Court of Kansas.

Opinion filed December 12, 2003.

Mark E. McFarland, of Doering, Grisell & McFarland, P.A., of Garden City, argued the cause and was on the brief for appellant.

Allen G. Glendenning, of Watkins, Calcara, Rondeau, Friedeman, Bleeker, Glendenning & McVay, Chtd., of Great Bend, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.:

This case concerns the interpretation of the notice of claims statute, K.S.A. 2002 Supp. 12-105b. Based upon the district court's interpretation, it dismissed Connie Cummings' personal injury lawsuit against the City of Lakin as untimely. The Court of Appeals affirmed in Cummings v. City of Lakin, 31 Kan. App. 2d 532, 67 P.3d 166 (2003). We granted Cummings' petition for review, since another panel of the Court of Appeals appears to have reached dissimilar results 2 months later when it interpreted the same statute. See J.P. Asset Co. v. City of Wichita, 31 Kan. App. 2d 650, 70 P.3d 711 (2003).

We consider two closely-related issues on appeal:

1. What is the length of the extension of time provided to a claimant by K.S.A. 2002 Supp. 12-105b(d) when a claim is denied after the statute of limitations has expired?

2. When does the statutory extension of time begin, i.e., from the expiration of the original statute of limitations or from the time the claimant receives denial of the claim?

The lower courts in the instant case extended, beginning from the expiration date of Cummings' original statute of limitations, by the actual amount of time that elapsed between the filing of her notice of claim with the City of Lakin and her attorney's receipt of the City's denial. We affirm.

FACTS

Connie Cummings was injured when she stepped on a manhole cover and fell in the City of Lakin (City). She alleges the City installed the cover in a negligent manner. The following timeline is important to our determination of whether her lawsuit against the City to recover damages for her injuries was timely filed:

May 11, 2000: Cummings was injured.

May 10, 2002: City receives Cummings' notice of claim pursuant to K.S.A. 2002 Supp. 12-105b(d).

May 13, 2002: Statute of limitations was due to expire pursuant to K.S.A. 2002 Supp. 60-513(a)(4), since May 11, 2002, (2 years from the injury) was a Saturday.

July 2, 2002: The City denied Cummings' claim.

July 8, 2002: Cummings' attorney received the City's letter of denial.

July 24, 2002: Cummings filed her petition in the Kearny County District Court.

November 5, 2002: 120 days from Cummings' attorney's receipt of the denial letter.

After oral arguments on the City's motion for judgment on the pleadings, the district court granted the motion on September 19, 2002. Among other things, it found that while K.S.A. 2002 Supp. 12-105b(d) extended the statute of limitations, Cummings' lawsuit needed to have been filed by July 11 to be timely. It specifically found that the filing of her notice of claim with the City did not automatically extend the statute of limitations by 120 days, but only for the time during which the City had been considering the claim.

The Court of Appeals affirmed. After examining the statute and its opinions in Martin v. Board of Johnson County Comm'rs, 18 Kan. App. 2d 149, 848 P.2d 1000 (1993), and King v. Pimentel, 20 Kan. App. 2d 579, 890 P.2d 1217 (1995), the court held that the statute of limitations is extended by the actual amount of time that elapses between the filing of the notice of claim and the claimant's receipt of the denial. Under Cummings' facts, the statute of limitations was therefore extended to July 11, i.e., by 59 days. "This was the number of days between May 10, 2002, when the notice of claim was filed with the City, and July 8, 2002, the date when Cummings' attorney received the City's rejection letter." 31 Kan. App. 2d at 534-35.

Two months later a somewhat different panel of the Court of Appeals filed J.P. Asset Co. v. City of Wichita, 31 Kan. App. 2d 650. There, the court considered the 40-day period which the City of Wichita had taken to deny plaintiff's claims. A split panel applied the 40-day extension to the date the claim was denied by the City, not to the earlier date when the statute of limitations would have otherwise expired. The City's petition for review is pending before this court.

ANALYSIS

Issue 1: What is the length of the extension of time provided to a claimant by K.S.A. 2002 Supp. 12-105b(d) when a claim is denied after the statute of limitations has expired?

Cummings generally contends the Court of Appeals in the instant case misconstrued K.S.A. 2002 Supp. 12-105b(d) by relying upon Martin v. Board of Johnson County Comm'rs, 18 Kan. App. 2d 149. She argues we should overrule Martin. Citing Stevenson v. Topeka City Council, 245 Kan. 425, 781 P.2d 689 (1989), she specifically contends the proper interpretation of the statute would provide a claimant with a blanket 120-day extension, regardless of how long the governmental entity reviewed the claim.

Second, citing J.P. Asset Co. she also specifically contends the proper interpretation of the statute would apply the 120-day extension to the date the claimant receives the entity's denial, not to the date the statute of limitations would originally have expired. Combining her readings of Stevenson and J.P. Asset Co., she calculates her deadline for filing suit as November 5, 2002 — 120 days after her attorney received the City's denial of her claim on July 8.

The City responds that the Court of Appeals was correct in Martin, Pimentel, and the instant case, and Cummings misinterprets this court's holding in Stevenson.

While these two issues will be analyzed separately below, they both require us to interpret K.S.A. 2002 Supp. 12-105b(d). Statutory interpretation is a question of law, and this court's scope of review is unlimited. State v. Anthony, 274 Kan. 998, 999, 58 P.3d 742 (2002). The statute states:

"Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act [K.S.A. 75-6101 et seq.] shall file a written notice as provided in this subsection before commencing such action.. . . Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, if compliance with the provisions of this subsection would otherwise result in the barring of an action, such time period shall be extended by the time period required for compliance with the provisions of this subsection." (Emphasis added.)

Contrary to Cummings' first contention regarding a blanket 120-day extension, the Martin court had interpreted 12-105b(d) and stated the length of the extension would vary from case to case depending upon the length of time that elapses between the filing of the notice of claim with the governmental entity and its denial. 18 Kan. App. 2d at 157. The same statutory language was given the same interpretation by the Court of Appeals 2 years later in King v. Pimentel, 20 Kan. App. 2d 579, Syl. ¶ 6, 890 P.2d 1217 (1995).

In support of Cummings' contention that Martin and Pimentel were wrongly decided and that she is entitled to a blanket extension of 120 days, she cites Stevenson, 245 Kan. 425. There, we considered whether the newly enacted requirements of 12-105b(d) applied to Stevenson's claim when the statute of limitations governing that claim expired 23 days after the statute was enacted on July 1, 1987. We ruled the statute did not apply retroactively to her claim because 23 days was not a reasonable period of time in which to comply with the new statute, and we reinstated her cause of action. We agree with Cummings that Stevenson contained the following language:

"It could be argued here that the statute provides a 120-day extension of the statute of limitations, and thus a reasonable time to commence a proceeding before the expiration of the limitation. However, this argument ignores the fact that Stevenson had only twenty-three days in which to provide notice of the claim. Such notice was necessary to activate the 120-day statute of limitations extension." 245 Kan. at 430.

Cummings' reliance on this language, however, is misplaced. We agree with the Court of Appeals in Martin, 18 Kan. App. 2d at 155, holding this language was dicta. K.S.A. 12-105b(d) simply did not apply to Stevenson's claim, much less any extension under that statute.

Moreover, Cummings' statutory interpretation is contradicted by the plain language of K.S.A. 2002 Supp. 12-105b(d). It states that any action "shall be commenced within the time period provided for in the code of civil procedure," i.e., allowed by the statute of limitations, and that "such time period shall be extended by the time period required for compliance with the provisions of this subsection." (Emphasis added.) When construing a statute, we should give words in common usage their natural and ordinary meaning. International Ass'n of Firefighters v. City of Kansas City, 264 Kan. 17, Syl. ¶ 2, 954 P.2d 1079 (1998). This rule prohibits us from rewriting K.S.A. 2002 Supp. 12-105b(d) to give Cummings a blanket 120-day extension. We therefore affirm the Court of Appeals' rationale in Martin, Pi...