Lucas v. Independent Public School Dist. No. 35 of Holdenville

• Decision Date: 20 December 1983
• Docket Number: No. 57649,57649
• Citation: 1983 OK 121,674 P.2d 1131
• Parties: 15 Ed. Law Rep. 976, 1983 OK 121 Barbara LUCAS, Appellant, v. INDEPENDENT PUBLIC SCHOOL DISTRICT NUMBER 35 OF HOLDENVILLE, Hughes County, Oklahoma, and Earlene Marsh, Appellees.
• Court: Oklahoma Supreme Court

Page 1131

674 P.2d 1131

15 Ed. Law Rep. 976, 1983 OK 121

Barbara LUCAS, Appellant, v. INDEPENDENT PUBLIC SCHOOL DISTRICT NUMBER 35 OF HOLDENVILLE Hughes County, Oklahoma, and Earlene Marsh, Appellees.

No. 57649.

Supreme Court of Oklahoma.

Dec. 20, 1983.

Certiorari to the Court of Appeals, Division No. 1.

Plaintiff-appellant appealed from an order sustaining a demurrer to the petition and dismissal in an action brought under the Political Subdivision Tort Claims Act. The Court of Appeals, Division No. 1, affirmed the District Court of Hughes County; Gordon R. Melson, District Judge.

CERTIORARI GRANTED; DECISION OF THE COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT IS AFFIRMED.

Carl Hughes, William E. Liebel, Hughes, Nelson & Gassaway, Oklahoma City, for appellant.

Austin R. Deaton, Jr., Deaton, Gassaway & Davison, Inc., Ada, for appellees.

WILSON, Justice.

This appeal arises from the District Court's sustention of a demurrer and dismissal of appellant-plaintiff's petition in a negligence action brought under the Political Subdivision Tort Claims Act found at 51 O.S.1981, § 151, et seq. The petition was dismissed for failure to allege facts sufficient to show compliance with the requirement of 51 O.S. § 156. In an unpublished opinion, the Court of Appeals, Division No. 1, affirmed the trial court and held that there had been no substantial compliance with the requirement that notice of the claim be given to the political subdivision within one hundred twenty days pursuant to Section 156(C), supra. We vacate that opinion and substitute the following opinion in lieu thereof.

The appellant alleged in her second-amended petition that she had suffered injuries in a collision with a school bus negligently driven by an employee of the appellee school district on January 15, 1979. She avers that immediately following the accident, the bus driver, Earlene Marsh, radioed her supervisors, who arrived at the scene after calling an ambulance. Appellant further alleged that she was in "substantial compliance" with Section 156 by virtue of her having given a written statement to the defendant's insurance claims manager on January 22, 1979; by her attorney's telephone conversation and written correspondence on April 10, 1979, and April 12, 1979, respectively with the appellee's superintendent regarding the school's liability insurance; and by having filed a complaint in federal district court on May 25, 1979, naming the school district's insurer as the defendant. ¹

The appellant also alleged that from the time of the accident until January 29, 1979, she was incapacitated. She contends that under the authority of the last sentence of Section 156(C), supra, the running of the one hundred twenty day-period in which notice had to have been given to the school district was therefore tolled until she regained capacity. The pertinent portions of Section 156 provide:

B. A claim against a political subdivision or employee shall be forever barred unless notice thereof is filed with the clerk of the governing body of the political subdivision within one hundred twenty (120) days after the loss occurs.

C. The written notice of claim shall state the time, place and circumstances of the claim and the amount of compensation or other relief demanded. Failure the state either the time, place, circumstances and amount of compensation demanded shall not invalidate the notice unless the claimant declines or refuses to furnish such information within ninety (90) days after demand by the political subdivision. No action for any cause arising under this act shall be maintained unless valid notice has been given and the action is commenced within six (6) months after notification of denial of the claim by the clerk of the political subdivision. The time for giving written notice of claim does not include the time during which the person injured is unable due to incapacitation from the injury to give such notice, not exceeding ninety (90) days of incapacity.

It is undisputed that appellant failed to give the "clerk of the governing body" written notice within one hundred twenty days after the injury occurred. The question raised is whether the facts and circumstances alleged amounted to substantial compliance.

The Court of Appeals observed in its opinion that with regard to the communications between the appellant's counsel and the appellee's superintendent concerning the location of copies of insurance policies covering appellee's vehicles, counsel did not reveal in the letter written April 12 his client's identity nor the incident prompting his inquiry. There is no indication on the record, however, of what was communicated to the appellee's superintendent during the telephone conversation of April 10. That aside, substantial compliance with the notice provisions was accomplished when the appellant gave her written statement of the accident to the school district's insurance carrier on January 22, 1979. The running of the one-hundred twenty-day period therefore need not have been tolled on account of incapacity which the appellant argued was removed on January 29, 1979.

The view that notice to the insurance agent constitutes substantial compliance is in accord with our recent decision of Conway v. Ohio Casualty Ins. et al., 669 P.2d 766 (Okl.1983). We reiterate that the notice to the insurance carrier is not an authorized procedure under the Act, but with respect to the purposes sought to be accomplished under the notice provisions, the appellee was not prejudiced by the manner of imparting notice.

Notwithstanding substantial compliance with the notice of claim provisions, appellant's claim is barred by the limitation of actions provided in Section 156(C), supra, which in relevant part states: "No action for any cause arising under this act shall be maintained unless valid notice has been given and the action is commenced within six (6) months after notification of the denial of the claim by the clerk of the political subdivision." (Emphasis added.) ² Appellant did not commence her action until June 26, 1980. Although it is alleged in appellant's second-amended petition that "Defendants" filed an answer to the federal court action, there is no allegation in the petition asserting that appellant's June 26, 1980, filing of her lawsuit was within one year of the dismissal of the federal court action so that tolling under 12 O.S.1981, § 100, would come into consideration. A plaintiff has the burden of bringing himself within the ambit of Section 100 to benefit from this saving clause. Owens v. Luckett, 192 Okl. 685, 139 P.2d 806 (1943).

Under 51 O.S. § 157, a claim is deemed denied if after ninety days after receiving the claim the political subdivision fails to approve the claim. That section provides:

Within ninety (90) days after receiving the filing of a claim, the clerk of the political subdivision shall notify the claimant in writing of the approval or denial of the claim. A claim is denied if...