Large v. City of Birmingham

• Court: Alabama Supreme Court
• Writing for the Court: KENNEDY; HORNSBY
• Citation: Large v. City of Birmingham, 547 So.2d 457 (Ala. 1989)
• Decision Date: 09 June 1989
• Parties: Jimmy G. LARGE, et al. v. CITY OF BIRMINGHAM. 87-1207.

Page 457

547 So.2d 457

Jimmy G. LARGE, et al. v. CITY OF BIRMINGHAM.

87-1207.

Supreme Court of Alabama.

June 9, 1989.

Timothy L. Dillard and Steven K. Goozee of Hampe, Dillard & Ferguson, Birmingham, for appellants.

Herbert Jenkins, Jr., Asst. City Atty., Birmingham, for appellee.

KENNEDY, Justice.

The plaintiff appeals the trial court's final judgment dismissing the City of Birmingham as a party defendant on the ground that the plaintiff, Jimmy G. Large, failed to comply with the notice-of-claim requirements of Code 1975, § 11-47-23. We affirm.

Jimmy G. Large (appellant), a fireman for the City of Birmingham (City), was injured during a training exercise on October 16, 1986. Large, while testing new rappelling equipment fell from a training tower and was injured. He submitted an injury report later that day.

Large continued to work through January 22, 1987. On March 5, 1987, he was placed on "injured with pay status," retroactive to January 23, 1987. On June 17, 1987, Large filed a notice of claim with the City. On October 26, 1987, Large sued the City for damages for injuries received during the course of his employment, claiming negligence and wantonness. The trial court dismissed the City, ruling that Large had failed to file a notice of claim with the City within six months, as is required under Code 1975, § 11-47-23, which reads:

"All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred."

Code 1975, § 11-47-23.

Appellant argues (1) that § 11-47-23 violates federal and state constitutional guaranties of equal protection and due process and, in addition, violates the "open courts" guaranty of the Alabama Constitution of 1901 (§ 13); (2) that actual notice is sufficient compliance with the time limitation; (3) that the City, based upon its handling of the claim, is estopped from raising noncompliance as a defense; and (4) that the notice of claim as submitted was timely presented.

It is well established that filing a statutory notice of claim provides sufficient notice to allow city authorities to have an opportunity to investigate the circumstances of an alleged injury, so as to prepare the city's defenses or to negotiate a settlement. City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963); Hunnicutt v. City of Tuscaloosa, 337 So.2d 346 (Ala.1976); City of Florala v. Presley, 47 Ala.App. 94, 251 So.2d 226 (1971), cert. denied, 287 Ala. 727, 251 So.2d 229 (1971). Although several other state courts have held similar statutes invalid, this Court in Parton v. City of Huntsville, 362 So.2d 898 (Ala.1978), unequivocally held that the notice-of-claim provision in question does not violate the due process and equal protection clauses of the Fourteenth Amendment. In Parton, this Court concluded that "[t]he limitations upon this right [to sue a municipality], when uniformly and equally applied, are constitutional." Parton, supra, at 901.

Appellant further argues that the City had actual notice of the incident, and that actual notice rendered strict compliance with § 11-47-23 unnecessary. Appellant, in addition to filing an accident report, did communicate, cooperate, and maintain contact, with the City. However, the required notice must be served upon the authorized representative of the City, in this case, the city clerk, and disclosure to any other division or supervisor cannot be treated as notice for the purposes of instituting a claim. Moreover, in filing an accident report and receiving treatment, appellant did not express an intention to sue. Therefore, actual notice cannot be allowed to replace the statutory formal notice-of-claim requirement. Mere knowledge of the incident resulting in injury does not satisfy the objectives of the notice-of-claim statute.

Citing City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967), appellant argues that the noncompliance with § 11-47-23 should be excused under an estoppel theory. Weldon can be distinguished factually from the case sub judice. In Weldon, an adjuster contacted the injured party on behalf of the city on numerous occasions during the six-month period and assured the...