Geddes v. York County
| Decision Date | 23 March 2007 |
| Docket Number | No. S-05-1359.,S-05-1359. |
| Citation | 729 N.W.2d 661,273 Neb. 271 |
| Parties | Carole GEDDES, sole heir at law of Jane T. Schirmer, deceased, Appellant, v. YORK COUNTY, Nebraska, Appellee. |
| Court | Nebraska Supreme Court |
Kelly M. Thomas, of Svehla, Thomas, Rauert & Grafton, P.C., York, for appellant.
Charles W. Campbell, of Angle, Murphy, Valentino & Campbell, P.C., York, for appellee.
Under the Political Subdivisions Tort Claims Act (PSTCA),1 a claimant must file a tort claim with the governing body of the political subdivision before filing suit. If the governing body has not made final disposition of the claim within 6 months after it is filed, the claimant may withdraw the claim and file suit. Jane T. Schirmer filed a tort claim with York County, Nebraska, on April 21, 2003, and withdrew the claim no later than October 21. At the time of the withdrawal, the county had not made a disposition of the claim. The issue in this appeal is whether Schirmer met the statutory requirement for timely withdrawal of the claim before filing her suit. We conclude that she did not.
On April 18, 2003, Schirmer's attorney mailed her tort claim to the York County clerk. Schirmer's claim alleged that on or about July 10, 2002, she was injured due to the negligence of an agent of the county. The clerk's office received the claim on April 21 and, following its usual practice, affixed a file stamp bearing that date. A return receipt confirms that the notice was delivered to and received by the clerk's office on April 21. The county clerk submitted the claim to the York County Board of Commissioners for review at its next regular meeting and furnished a copy to the county attorney. At its meeting on April 29, the county board reviewed the claim but took no action on it then or at any subsequent time.
In a notice dated October 20, 2003, directed to the county clerk, Schirmer's attorney stated in part: "You are hereby notified that more than six (6) months has [sic] expired from the date [Schirmer's] claim was filed with you, without final disposition by you, and accordingly, claimants [sic] herewith withdraw their [sic] claim and will file suit against you as provided by law." An employee of Schirmer's attorney swore by affidavit that this document was mailed on October 20 by certified mail, return receipt requested, and was not hand delivered to the clerk's office. Other evidence reflects that the notice of withdrawal was delivered to and received by the clerk's office on October 21. However, the notice was date stamped by the county clerk's office on October 20, which would ordinarily mean that it was received on that date. The county clerk did not recall whether the notice was hand delivered or received by mail.
On May 7, 2004, Schirmer initiated this action by filing a complaint in the district court for York County. She alleged that she was injured as the proximate result of negligent conduct by an employee of the county and sought compensatory damages. Schirmer also alleged that she met the notice and withdrawal requirements of the PSTCA. In its answer, the county affirmatively alleged that Schirmer failed to comply with the requirement of § 13-906 because she withdrew her claim from county consideration before 6 months had passed from the date of its filing.
Schirmer died on April 6, 2005, during the pendency of this case. By stipulation, the county consented to the revival of Schirmer's action by Carole Geddes, her sole heir. The district court subsequently ordered revivor of the action in Geddes' name.
On September 2, 2005, the county moved for summary judgment on the basis that Schirmer had failed to comply with the requirement of § 13-906 because she withdrew her claim filed with York County before 6 months had passed from the date of filing when the county had not yet made final disposition. The district court held an evidentiary hearing at which evidence was received from both parties. At a second evidentiary hearing, Geddes was allowed to withdraw her rest and offer a supplemental affidavit, which the court received.
On October 17, 2005, the district court entered an order granting summary judgment in favor of the county and dismissed the case with prejudice. Applying the language of § 13-906, the court determined that the county had until the close of October 21, 2003, "to render or not render a final disposition" of the claim. The court concluded that because Schirmer withdrew her claim before the end of that period, her action was not in compliance with the PSTCA and the statute of limitations barred refiling. Geddes timely appealed, and we moved the appeal to our docket on our own motion, in accordance with our authority to regulate the caseloads of the appellate courts of this state.2
Geddes assigns, restated and consolidated, that the district court erred in determining that she prematurely withdrew her tort claim from York County and therefore did not file her action in compliance with the procedural requirements of the PSTCA.
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.3 In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.4
Statutory interpretation presents a question of law.5 When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusions reached by the trial court.6
York County is a political subdivision of the State of Nebraska.7 The PSTCA reflects a limited waiver of governmental immunity and prescribes the procedure for maintenance of a suit against a political subdivision.8 It is the exclusive means by which a tort claim may be maintained against a political subdivision or its employees.9 Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly construed in favor of the sovereign and against the waiver.10
The PSTCA specifies various nonjudicial procedures which we have characterized as conditions precedent to the filing of a lawsuit, and a claimant's failure to follow these procedures may be asserted as an affirmative defense in an action brought under the PSTCA.11 Here, it is undisputed that Schirmer filed a written tort claim with the county clerk pursuant to § 13-905. But York County asserted an affirmative defense of noncompliance with § 13-906, which provides:
No suit shall be permitted under the [PSTCA] and sections 16-727, 16-728, 23-175, 39-809, and 79-610 unless the governing body of the political subdivision has made final disposition of the claim, except that if the governing body does not make final disposition of a claim within six months after it is filed, the claimant may, by notice in writing, withdraw the claim from consideration of the governing body and begin suit under such act and sections. Because compliance with the statutory time limits set forth in § 13-906 can be determined with precision, the doctrine of substantial compliance has no application.12 It is undisputed that Schirmer's claim was filed on April 21, 2003, and that the county board never made a final disposition. The sole issue in this appeal is whether Schirmer withdrew her claim before expiration of the 6-month time period specified in § 13-906, resulting in the failure of a condition precedent to the filing of her lawsuit under the PSTCA.
Nebraska has a statutory rule for computing time. Neb.Rev.Stat. § 25-2221 (Cum. Supp. 2006) provides in relevant part:
Except as may be otherwise more specifically provided, the period of time within which an act is to be done in any action or proceeding shall be computed by excluding the day of the act, event, or default after which the designated period of time begins to run. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a day during which the offices of courts of record may be legally closed as provided in this section, in which event the period shall run until the end of the next day on which the office will be open.
This provision establishes a uniform rule applicable alike to the construction of statutes and to matters of practice.13 We have regularly applied § 25-2221 and its predecessors in computing time periods specified in other statutes.14
Based upon the initial clause of § 25-2221, Geddes argues that the statute does not apply to the calculation of the 6-month time period under § 13-906 because a different method of time computation is specified elsewhere in the PSTCA which governs all time periods set forth in the act. Section 13-919(1) provides that suits permitted by the PSTCA must be commenced within 2 years after the claim accrued, subject to the following exception:
The time to begin a suit shall be extended for a period of six months from the date of mailing of notice to the claimant by the governing body as to the final disposition of the claim or from the date of withdrawal of the claim from the governing body under section 13-906 if the time to begin suit would otherwise expire before the end of such period.
Geddes argues that §§ 13-906 and 13-919(1) should be read in pari materia so that the 6-month period in which the governing body may consider the claim before it can be withdrawn would start to run on the day the claim was received, rather than on the following day under § 25-2221.
We are not persuaded by this argument. The language in § 13-919(1) quoted above describes a...
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