Duncan v. City of Stroud

• Decision Date: 06 March 2015
• Docket Number: 112,172., Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.
• Citation: 2015 OK CIV APP 28,346 P.3d 446
• Parties: DUNCAN v. CITY OF STROUD.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

346 P.3d 446

2015 OK CIV APP 28

DUNCAN

v.CITY OF STROUD.

112,172.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Court of Civil Appeals of Oklahoma, Division No. 2.

March 6, 2015.

A. Laurie Koller, Patrick E. Carr, Michael E. Carr, Guy A. Thiessen, Raymond S. Allred, Carr & Carr Attorneys, Tulsa, Oklahoma, for Plaintiff/AppellantDavid W. Kirk, Robert Ray Jones, Jr., Lytle Soulé & Curlee, Oklahoma City, Oklahoma, for Defendant/Appellee

Opinion

JOHN F. FISCHER, Presiding Judge.

¶ 1 Donald W. Duncan appeals the dismissal with prejudice of his petition alleging a tort claim against the City of Stroud. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp.2013, ch. 15, app. 1, and the matter stands submitted without appellate briefing. In the district court, the City argued that Duncan failed to file this suit within the applicable limitations period required by the Governmental Tort Claims Act, 51 O.S.2011 §§ 151 –172 (GTCA), and therefore, his claim was barred.¹ The City's argument is predicated on its interpretation of a letter received from Duncan's counsel at the beginning of this litigation. Because that letter does not constitute the notice required to start the limitations period for Duncan's tort claim, we reverse.²

BACKGROUND

¶ 2 Duncan was injured in an automobile accident that he contends was caused by the negligence of a City employee who was acting within the scope of his employment and driving a vehicle owned by the City at the time of the accident. Duncan seeks to recover for the damages he alleges he incurred as a result of the accident. Prior to the filing of this suit, Duncan's legal counsel sent a letter to an insurance agency identified as the insurer of the City vehicle. The City contends that this letter started the limitations period. The City moved to dismiss Duncan's petition arguing that it had been filed outside the time permitted after counsel's letter. The district court granted the City's motion and dismissed Duncan's petition with prejudice.

STANDARD OF REVIEW

¶ 3 The City's motion to dismiss was premised on 12 O.S.2011 § 2012(B)(1), and argued that the district court lacked subject matter jurisdiction because Duncan's petition was filed after the applicable limitations period had run. “A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle the plaintiff to relief.” Tuffy's, Inc. v. City of Oklahoma City, 2009 OK 4, ¶ 6, 212 P.3d 1158, 1162. Appellate courts review an order dismissing a petition de novo “considering the legal sufficiency of the petition and taking all allegations in the plaintiff's petition as true.” Gens v. Casady Sch., 2008 OK 5, ¶ 8, 177 P.3d 565, 569.

ANALYSIS

¶ 4 Duncan's claim against the City is governed by the GTCA. Section 153(A) of the GTCA provides:

The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in The Governmental Tort Claims Act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state.

51 O.S.2011 § 153(A). Within one year of the accident, Duncan was required to “present” his claim to the City. 51 O.S.2011 §§ 156(A) and 156(B). The manner in which that claim must be presented is also set out in section 156 of the Act.

D. A claim against a political subdivision shall be in writing and filed with the office of the clerk of the governing body.

E. The written notice of claim to the state or a political subdivision shall state the date, time, place and circumstances of the claim, the identity of the state agency or agencies involved, the amount of compensation or other relief demanded, the name, address and telephone number of the claimant, the name, address and telephone number of any agent authorized to settle the claim.... Failure to state either the date, time, place and circumstances and amount of compensation demanded ... shall not invalidate the notice unless the claimant declines or refuses to furnish such information after demand by the state or political subdivision.

¶ 5 However, Duncan was prohibited from filing this suit until the City denied his claim. “No action for any cause arising under [the GTCA] shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section.” 51 O.S.2011 § 157(B). “A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days.” 51 O.S.2011 § 157(A). “Compliance with the written notice of claim and denial of claim provisions in §§ 156 and 157 [of the GTCA] are prerequisites to the state's consent to be sued and to the exercise of judicial power to remedy the alleged tortious wrong by the government.” Shanbour v. Hollingsworth, 1996 OK 67, ¶ 7, 918 P.2d 73, 75.

¶ 6 The accident in which Duncan was injured occurred on March 23, 2012. On April 6, 2012, Duncan's legal counsel sent a letter on the law firm's letterhead to Hinson Insurance Agency. According to the Traffic Collision Report prepared by the City's police officer who investigated the accident, Hinson was identified as the insurance company for the City vehicle involved in the accident. The “regarding” section of counsel's April 6 letter lists Duncan's name, the City, the City employee's name and the date of accident. The letter states:

The firm of Carr & Carr Attorneys has been retained by Donnie Wayne Duncan for representation concerning the matter described above.

Each and every authorization in which our client may have permitted the release of medical records, employment records or other information which customarily requires an authorization is hereby revoked. Please do not request such records or information without a proper release obtained through our firm after the date of this letter.

Pursuant to Okla. Stat. Tit. 12, § 3226(B)(1), insurance agreements that will satisfy part or all of a judgment are discoverable. Please send us a copy of this policy and a statement of each coverage and limits thereof, as well as copies of each oral or written statement you have obtained from our client and copies of photographs of the vehicles involved in this loss.

Carr & Carr, Attorneys at Law, is claiming an attorney lien on the proceeds of any settlement.

¶ 7 On April 12, 2012, Duncan's counsel received a letter from a senior claims examiner for Oklahoma Municipal Assurance Group (OMAG) acknowledging receipt of Duncan's April 6, 2012, “claim.” That letter states that the claims examiner “will be directing the handling of this matter and will be in touch in the near future.” The letter includes a “cc: City of Stroud.” There is no indication in this record that Duncan's counsel was thereafter contacted by the OMAG's senior claims manager or any other OMAG officer, agent or employee.³

¶ 8 In a certified letter dated February 20, 2013, Duncan's counsel mailed a Notice of Claim to the Stroud City Clerk.⁴ The February Notice of Claim provides all of the information required by Title 51 O.S.2011 § 156(E), including a demand for $250,000 to compensate Duncan for his damages resulting from the accident. In addition, the February Notice of Claim was mailed to the City Clerk as required by 51 O.S.2011 § 156(D). Although the City now contends that Duncan's time to pursue his claim expired in January of 2013, there is no response to Duncan's February 2013 Notice of Claim in this record or any other correspondence from the City to Duncan or his counsel. If effective, Duncan's February Notice of Claim would have been “deemed denied” ninety days thereafter, or on May 20, 2013. 51 O.S.2011 § 157(A). Duncan filed this suit on June 3, 2013, within the one hundred and eighty days after May 20, 2013, required by section 157(B) of the GTCA.

¶ 9 Nonetheless, the City moved to dismiss Duncan's suit arguing that counsel's April 6 letter constituted the notice required by section 156 of the GTCA. According to the City, Duncan's claim was deemed denied ninety days after April 6, 2012, or on July 5, 2012. The City concludes that Duncan's suit filed June 3, 2013, is barred by the applicable limitations period because it was filed more than one hundred and eighty days after July 5, 2012, as required by section 157(B) of the GTCA. If the April 6 letter constituted the statutorily required notice of Duncan's claim, the City is correct and Duncan's claim is barred. See Hall v. The GEO Group, Inc., 2014 OK 22, ¶ 13, 324 P.3d 399, 404 (compliance with the notice provisions of the GTCA is jurisdictional). However, we find the City's position untenable.

¶ 10 Even though the April 6 letter does not contain the information required by section 156(E) and was not filed with the City Clerk as required by section 156(D), the City argues that the April 6 letter is sufficient notice of Duncan's claim because it substantially complies with the notice requirements of the GTCA. The City relies on two decisions from this Court to support this argument. The City's cases were either decided before or relied on cases decided before Minie v. Hudson, 1997 OK 26, 934 P.2d 1082. In that case, the claimant relied on the line of cases which had consistently held that substantial compliance with the notice provisions of the GTCA was sufficient when the governmental entity was not prejudiced, and the information provided satisfied the purposes of the statutory notice provisions of the Act. The Court noted, however, that the notice section of the Act, section 156, had been amended effective October 1, 1985. The amendment added a provision requiring that: “A claim against a political...