Feeney v. Jefferson County Health Services Ass'n, Inc., 96CA1141

• Decision Date: 12 June 1997
• Docket Number: No. 96CA1141,96CA1141
• Citation: 949 P.2d 103
• Parties: 21 Colorado Journal 836 Barbara J. FEENEY, Plaintiff-Appellee, v. JEFFERSON COUNTY HEALTH SERVICES ASSOCIATION, INC.; Jefferson County Department of Health and Environment; and The Board of County Commissioners of the County of Jefferson, Defendants- Appellants.
• Court: Colorado Court of Appeals

Page 103

949 P.2d 103

21 Colorado Journal 836

Barbara J. FEENEY, Plaintiff-Appellee, v. JEFFERSON COUNTY HEALTH SERVICES ASSOCIATION, INC. Jefferson County Department of Health and Environment; and The Board of County Commissioners of the County of Jefferson Defendants- Appellants.

No. 96CA1141.

Colorado Court of Appeals Div IV.

June 12, 1997.

Rehearing Denied July 24, 1997.

Certiorari Granted Jan. 12, 1998.

Beem & Mann, P.C., Clifford L. Beem, Denver, for Plaintiff-Appellee.

Fowler, Schimberg & Cowman, P.C., Timothy P. Schimberg, Brian E. Widmann, Denver, for Defendants-Appellants.

Opinion by Judge KAPELKE.

Defendants, Jefferson County Health Services Association, Inc. (Health Services Association), Jefferson County Department of Health and Environment (Health Department), and the Board of County Commissioners of the County of Jefferson (County), bring this interlocutory appeal pursuant to § 24-10-108, C.R.S. (1996 Cum.Supp.) from the trial court's order denying their motion to dismiss the complaint of plaintiff, Barbara J. Feeney, for lack of subject matter jurisdiction. We affirm and remand with directions.

According to her complaint, on February 8, 1994, plaintiff slipped and fell on an icy sidewalk in front of a medical clinic operated by the Health Services Association and the Health Department. She alleged that defendants knew or should have known of the dangerous condition and were negligent in failing to exercise reasonable care to remedy or warn of this condition. She further alleged that she gave defendants notice of her claim in accordance with § 24-10-109, C.R.S. (1988 Repl.Vol. 10A). It is undisputed that plaintiff gave timely notice to the County itself.

Defendants filed a motion to dismiss pursuant to C.R.C.P. 12(b)(1), C.R.C.P. 12(b)(2), C.R.C.P. 12(b)(5), and C.R.C.P. 17. In their motion, defendants argued that: (1) the Health Services Association was a defunct corporation that had been suspended by the Colorado Secretary of State and had not operated the medical clinic; (2) plaintiff failed to designate the County or the Health Department by its proper name in the complaint; (3) plaintiff failed to give notice of claim to the Health Department; and (4) plaintiff's allegation that defendants "knew or should have known" of the dangerous condition of the sidewalk was insufficient to state a claim for relief under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S. (1988 Repl. Vol 10A).

In response, plaintiff argued that: (1) the Health Services Association was a valid legal entity currently in existence; (2) she was injured five months before the corporation was suspended; (3) her notice of claim given to the County and the county attorney complied with the requirements of the GIA; and (4) she should be allowed to amend her complaint to name the defendants properly and to specify the section of the GIA under which defendants' immunity had been waived.

The trial court denied defendants' motion to dismiss and granted plaintiff's motion to amend. The court determined that, because it referred to matters outside the complaint defendants' motion should be treated as one for summary judgment. Applying the standard applicable to summary judgment motions, the court found that the notice given by plaintiff was sufficient for purposes of § 24-10-109 and that the complaint stated a claim for relief under the GIA. This appeal followed.

I.

Defendants first contend that the trial court erred in applying the standards for summary judgment under C.R.C.P. 56 to their motion to dismiss. We agree, but perceive no basis for reversal.

The issue of sovereign immunity is one of subject matter jurisdiction to be determined by the trial court pursuant to C.R.C.P. 12(b)(1), rather than under C.R.C.P. 56. Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). Nevertheless, in certain circumstances we may decide the issue of subject matter jurisdiction under the GIA as a matter of law. See Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo.1997); Pack v. Arkansas Valley Correctional Facility, 894 P.2d 34 (Colo.App.1995) (appellate court need not defer to trial court's interpretation of the GIA); see also Johnson v. Regional Transportation District, 916 P.2d 619 (Colo.App.1995) (if all relevant evidence has been presented to the trial court, and the underlying facts are not in dispute, whether sovereign immunity has been waived may be decided as a matter of law).

Here, although the trial court did not apply the appropriate standard, we conclude that we may nevertheless review defendants' sovereign immunity assertion without remanding for an evidentiary hearing, except as to the issue discussed below in part III. See Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993).

II.

The Health Department contends that the trial court erred in not dismissing plaintiff's claims against it on the basis that she failed to comply with the notice of claim requirements in § 24-10-109. Specifically, the Health Department contends that it is a separate and distinct legal entity from the County and that, therefore, plaintiff was required to provide its governing body or legal counsel with a notice of claim. In response, plaintiff argues that the Health Department is under the control of the County and is thus not entitled to a separate notice of claim. Accordingly, she asserts that the notice given to the County satisfied the GIA's notice requirements. We agree with plaintiff.

Any person claiming to have suffered an injury caused by a public entity or its employee must provide written notice within 180 days after the date of the discovery of the injury. See §§ 24-10-109 and 24-10-118, C.R.S. (1988 Repl.Vol. 10A); Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo.1996) (compliance with the 180-day requirement is a jurisdictional prerequisite to suit).

If the claim is against the state or an employee thereof, the notice shall be provided to the attorney general. However, if the claim is against any other public entity or its employee, the notice must be filed with the public entity's governing body or its legal counsel. See § 24-10-109(3), C.R.S. (1988 Repl.Vol. 10A).

A "public entity" is defined in the GIA as:

the state, county, city and county, municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof organized pursuant to law and any separate entity created by intergovernmental contract or cooperation only between or among the state, county, city and county, municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof.

Section 24-10-103(5), C.R.S. (1996 Cum.Supp.).

A county is defined by statute as "a body corporate and politic" and has the power to sue and be sued, to purchase and hold real and personal property, to enter into contracts, and to impose certain taxes. See § 30-11-101, C.R.S. (1986 Repl.Vol. 12A). It is a political subdivision of the state created for the convenient administration of the state government to carry out the will of the state. Board of County Commissioners v. Love, 172 Colo. 121, 470 P.2d 861 (1970).

A county health department may be established by any county through resolution of its board of county commissioners. Section 25-1-501, C.R.S. (1989 Repl.Vol. 11A). Under this statutory scheme, a county health department has various powers and duties, see §§ 25-1-505 to 25-1-508, C.R.S. (1989 Repl.Vol. 11A), including the power to "employ or retain and compensate an attorney to be the legal advisor of the...