Farber v. State

• Decision Date: 07 July 1981
• Docket Number: No. 13212,13212
• Parties: J. R. FARBER and Amelia V. Farber, husband and wife, Plaintiffs-Appellants, v. The STATE of Idaho, The City of Nampa, Asphalt Paving and Construction Co., Inc., a corporation, Defendants, and The State of Idaho, Defendant-Respondent. ASPHALT PAVING AND CONSTRUCTION CO., INC., a corporation, Cross-Plaintiff, v. The STATE of Idaho, Cross-Defendant.
• Court: Idaho Supreme Court

Page 685

630 P.2d 685

102 Idaho 398

J. R. FARBER and Amelia V. Farber, husband and wife, Plaintiffs-Appellants, v. The STATE of Idaho, The City of Nampa, Asphalt Paving and Construction Co., Inc., a corporation, Defendants, and The State of Idaho, Defendant-Respondent.

ASPHALT PAVING AND CONSTRUCTION CO., INC., a corporation, Cross-Plaintiff, v. The STATE of Idaho, Cross-Defendant.

No. 13212.

Supreme Court of Idaho.

July 7, 1981.

Kenneth E. White, Nampa, for plaintiffs-appellants.

Warren E. Jones of Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, for respondent.

BISTLINE, Justice.

This case was previously before us in Farber v. State, 98 Idaho 928, 576 P.2d 209 (1978). A brief summary of the facts as set forth in that opinion is as follows: The action arises from the reconstruction of Twelfth Avenue South and Seventh Street South in Nampa, Idaho. Respondent State of Idaho entered into a cooperative agreement with defendant City of Nampa for the reconstruction project, and defendant Asphalt Paving and Construction Company was awarded the contract to perform the reconstruction work. Appellants, the Farbers, own a building and lot located at the intersection of Twelfth Avenue South and Seventh Street South, both of which were affected by the reconstruction work.

The Farbers filed suit against defendant-respondent State of Idaho and defendants City of Nampa and Asphalt Paving and Construction Company, alleging a right to recover damages, primarily for the negligent planning, construction and design of the project. The Farbers' amended complaint also sought to recover damages for the wrongful taking of a portion of their property.

A formal claim for damages against the defendant City of Nampa was filed on October 10, 1973, as provided by the Idaho Tort Claims Act (ITCA), I.C. s6-901, et seq. A complaint against the state was filed on April 11, 1974. This complaint did not specifically refer to the ITCA. On June 11, 1974, the state moved to dismiss the action because of the Farbers' failure to file timely notice of the claim with the state under the ITCA. On August 12, 1974, prior to a hearing on the state's motion to dismiss, the Farbers filed a formal notice of claim with the state. They then filed an amended complaint, and the state again moved to dismiss for failure to comply with the ITCA. The district court granted the motion and dismissed with prejudice. The Farbers appealed that dismissal to this Court. In Farber v. State, supra, this Court dismissed the appeal because the lower court dismissal had not been certified as final pursuant to I.R.C.P. 54(b).

The Farbers subsequently filed in district court a motion to reconsider the granting of the state's motion to dismiss. This motion was denied and a final order of dismissal was entered pursuant to Rule 54(b). The order denying the motion to reconsider specifically provided:

"1. That Plaintiffs' Motion to Reconsider this Court's earlier Order Granting the State of Idaho's Motion to Dismiss is denied, except as hereafter set forth.

"2. That all claims by Plaintiffs against the State of Idaho based on tort or negligence contained in Plaintiffs' Amended Complaint in the above-entitled matter are hereby dismissed with prejudice on the ground and for the reason that Plaintiffs have failed to conform with the requirements of Idaho Code, Section 6-905, all as stated in this Court's earlier Order Granting Motion to Dismiss dated September 2, 1975.

"3. That any claims Plaintiffs may have against the State of Idaho for inverse condemnation shall be preserved and Plaintiffs may amend their Amended Complaint to allege a cause of action based on inverse condemnation against the State of Idaho."

The Farbers contend on appeal that the district court erred in concluding that their claim did not meet the notice requirements of the ITCA. The Farbers also argue that the district court's order improperly excludes claims for tort damages which are severe enough to constitute a taking. In light of our disposition of the first issue, we need not decide the effect of the court's order on negligence claims arising out of any taking.

I.C. § 6-905 ¹ provides:

"Filing claims against state or employee Time. All claims against the state arising under the provisions of this act and all claims against an employee of the state for any act or omission of the employee within the course or scope of his employment shall be presented to and filed with the secretary of state within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later."

The Farbers contend that their claim did not "arise" within the meaning of I.C. § 6-905 until April 29, 1974, the date that construction on the project was completed and the project was approved by the state. Since the Farbers' notice was filed on August 12, 1974 (105 days after April 29), if the Farbers' contention as to the date their claim arose is correct, then they have fulfilled the notice requirements of the ITCA.

We have not previously addressed the question of when the 120 day notice requirement begins to run in cases of continuing torts involving damage to property. In support of their position that the 120 day provision begins to run from the time that the contract is approved by the state, the Farbers cite Gillam v. City of Centralia, 14 Wash.2d 523, 128 P.2d 661 (1942), which held that:

"(W)here a municipality, without condemnation proceedings, takes or damages private property for a public improvement, the statute of limitations does not commence to run against the property owner's right of action for compensation until construction of the improvement has been entirely completed or until operations thereon have ceased for such a period of time as reasonably to indicate that the project has been abandoned." 128 P.2d at 663.

Washington courts have steadfastly adhered to this rule. See Vern J. Oja & Associates v. Washington Park Towers, Inc., 89 Wash.2d 72, 569 P.2d 1141 (1977) (cause of action for damage to apartment building from use of pile-driver accrues upon completion of the project); Papac v. City of Montesano, 49 Wash.2d 484, 303 P.2d 654 (1956) (statute of limitations for damage to land runs from time project is completed, or substantial injury occurs, whichever is later ). See also Shockley v. Public Service Co., 525 P.2d 1183 (Colo.App.1974) (statute of limitations for cause of action arising out of public road improvement runs from time project is completed); Ashmon v. City of Des Moines, 209 Iowa 1247, 228 N.W. 316 (1929) (statute of limitations runs from time construction project is completed). As a policy reason for adopting their position, the Farbers suggest that they cannot know the full extent of their damages until the project is complete. They urge that this is particularly true where the state retains the right to require changes in the work prior to approval.

The state argues the general rule that "a cause of action arises or accrues ... when the plaintiff could have first maintained the action to a successful conclusion," 51 Am.Jur.2d Limitation of Actions § 107 (1970), and that "(i)f an actual injury to real property occurs, suit must be brought within the period of limitation by the property owner not only for the actual injury that has occurred but also for any additional injuries which were foreseeable and estimable when the initial damage was suffered." 51 Am.Jur.2d Limitation of Actions § 121 (1970). The state then argues that since the Farbers filed a claim against the City of Nampa on October 10, 1973, and since that claim specified damages nearly identical to the damages claimed in their April 11, 1974 complaint against the state, the Farbers could have maintained a suit against the state as early as October of 1973.

In Ralphs v. City of Spirit Lake, 98 Idaho 225, 560 P.2d 1315 (1977), this Court examined a similar issue arising out of a personal injury case. The plaintiff there had been attacked and injured in May of 1974. He filed a notice of claim against the city under I.C. § 6-906 in November of 1975, claiming that he had recently discovered additional damages from the attack. The holding in that case was that "(w)here there is a coincidence of a negligent act and the occurrence of damages a 'wrongful act' has been committed for which a legal remedy in damages is generally available. Therefore the applicable statutes begin to run from the occurrence of the wrongful act albeit the full extent of the damages may be unknown or unpredictable at that initial time." 98 Idaho at 227, 560 P.2d at 1317. Ralphs would appear to be dispositive of the issue presented by the Farbers, unless there are compelling reasons for distinguishing the circumstances in Ralphs from the circumstances here. We see that there are.

In Ralphs, a single act caused the damage for which compensation was claimed. While the damages alleged were continuing, and their full extent unknown, the act complained of was completed, and some damages had apparently occurred, long before the notice of claim was filed. Here, the act complained of is in the nature of a continuing tort. While the damages complained of have occurred over a period of time, as in Ralphs, we feel that it is better policy to focus upon the act complained of, rather than the damages, in determining when the 120 day notice requirement of the ITCA is triggered. Thus the holding in Ralphs that "(w)here there is a coincidence of a negligent act and the occurrence of damages a 'wrongful act' has been committed" is not determinative of whether a "negligent act" should be defined as the first step in a continuing project, or as the project as a completed whole.

In interpreting the meaning of the word "act" in I.C. § 6-905, it must be remembered that the 120 day notice provision of I.C. § 6-905 is not itself a statute of limitation. A separate section of the ITCA provides for limitation of...