Myears v. Charles Mix County
Decision Date | 16 July 1997 |
Docket Number | No. 19793,19793 |
Citation | 1997 SD 89,566 N.W.2d 470 |
Parties | Ernest MYEARS and Tracy Myears, Plaintiffs, v. CHARLES MIX COUNTY, South Dakota, Defendant and Appellee, and Richard Hilleren, Intervenor and Appellant. |
Court | South Dakota Supreme Court |
Michael L. Luce, Melissa C. Hinton of Davenport, Evans, Hurwitz & Smith, L.L.P., Sioux Falls,Paul T. Barnett of Siegel, Barnett & Schutz, L.L.P., Sioux Falls, for Defendant and Appellee.
Douglas J. Muirhead, Mark A. Bloomquist of Meagher & Geer, P.L.L.P., Minneapolis, for Intervenor and Appellant.
¶1 Before suing a public entity, written notice must be given to certain officials within 180 days of injury. Ernest Myears failed to advise the requisite public officers before he sued Charles Mix County. Nonetheless, within the mandatory period, Myears notified the county engineer, who in turn informed other county officials, and a claims adjuster investigated. Will substantial compliance satisfy statutory notice requirements? We answer yes and reverse summary judgment for the county, finding these circumstances adequate to establish reasonable compliance.
¶2 Myears was injured on August 9, 1992, as he drove on a county road north of Lake Andes in Charles Mix County. The road was under construction at the time, and Myears alleges no center line or other devices or warnings controlled traffic. An oncoming car strayed into his path and collided with him, resulting in the death of the other driver. Myears and his wife retained Richard Hilleren, a Minnesota lawyer unlicensed in South Dakota. On October 19, 1992, Hilleren sent a notice letter to the county engineer, who submitted it to the county auditor and the state's attorney, who in turn referred it to the county commission. 1 At an executive session on November 2, 1992, the commission denied Myears' claim in the following resolution:
WHEREAS, the County Commissioners of Charles Mix County, South Dakota have been presented with a claim on behalf of Ernie Myears as the result of an automobile accident which occurred in Charles Mix County, South Dakota, on or about August 9, 1992; and
WHEREAS, the County Commissioners have reviewed said claim and same appears to be unsupported by any facts or law as against Charles Mix County;
NOW, THEREFORE, IT IS HEREBY RESOLVED that the County Commissioners of Charles Mix County reject the claim of Ernie Myears as set forth above and deny any and all liability and responsibilities for the damages said Ernie Myears may have sustained in the automobile accident which occurred on or about August 9, 1992, in Charles Mix County, South Dakota.
It was later printed in the official county newspaper, the Lake Andes Wave.
¶3 On December 9, 1992, Hilleren and the state's attorney discussed the case over the telephone--Hilleren learned Crawford & Company had been assigned as the claims adjuster. He contacted Crawford and then sent information, photographs of the accident scene, and documents on the county's road repair. A Crawford adjuster discussed the claim with the county highway superintendent and took pictures of the accident scene. On December 28, Hilleren talked on the phone with Jim Fleming, one of Crawford's adjusters. They set up a meeting for December 30, which did not take place, but they had a lengthy phone conversation about the claim the next day. In Fleming's notes from the conversation was "2-5," specifying February 5 as the date the notice period would expire. SDCL 3-21-2 and -3 require notice before suing a public entity: the county auditor and the Attorney General must be given "written notice of the time, place and cause of the injury ... within days after the injury." 2 The plan was to wait and deny the claim on the basis of failure to provide notice.
¶4 As early as November 24, 1992, a letter to the insurer from Crawford adjuster Wayne Kinonen mentioned notice had yet to be given. Fleming, while waiting for the information Hilleren had promised in their December 31 conversation, prepared a status letter to the insurer, dated January 18, 1993, stating proper notice had not been submitted to the required public officials. On January 28, Fleming verified with the Attorney General notice to that office had not yet been given.
¶5 February 5, 1993, passed without notice to the required officials. Hilleren continued to pursue settlement, but Crawford advised him outside counsel had been retained, and on April 5, that attorney detailed in a letter to Hilleren the 180-day rule and denied the claim both on notice and the merits. Hilleren later admitted he was unaware of South Dakota's 180-day notice rule until after the period had expired and defense counsel had informed him of it. On May 20, Hilleren belatedly submitted written notice to the county auditor and the Attorney General. Myears later discharged Hilleren, hired in-state counsel, and sued the county. Hilleren was allowed to intervene. The circuit court granted the county's motion for summary judgment based on lack of timely notice. Hilleren appeals, asserting (1) substantial compliance; and (2) estoppel.
¶6 Our standard of review for summary judgment is well-settled:
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." SDCL 15-6-56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the nonmoving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. On the other hand, "the party opposing a motion for summary judgment must be diligent in resisting the motion, and mere general allegations and denials which do not set forth specific facts will not prevent issuance of a judgment."
Ward v. Lange, 1996 SD 113, p 10, 553 N.W.2d 246, 249 (internal citations omitted); see also Rumpza v. Larsen, 1996 SD 87, p 9, 551 N.W.2d 810, 812; Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990); Pickering v. Pickering, 434 N.W.2d 758, 760 (S.D.1989).
¶8 Hilleren believes he substantially complied with SDCL 3-21-2 and -3, as he sent notice to the county engineer within the 180-day period. See Finck v. City of Tea, 443 N.W.2d 632, 635 (S.D.1989)(notice required under SDCL 3-21-2). The engineer gave the letter to the county auditor and the state's attorney, who reported it to the county commission. Additionally, his letter, while not stating the date of the accident, provided other details, including the individual involved and the nature of the claim, as well as stating the letter was for the purpose of notice. Lastly, the Attorney General obtained oblique notice when the adjuster called on January 28, 1993, shortly before the 180-day period expired, to ask whether notice from Myears had been received.
¶9 In the county's view, only strict compliance will suffice. It cites Brishky v. State, 479 N.W.2d 489 (S.D.1991); Hanson v. Brookings Hosp., 469 N.W.2d 826 (S.D.1991); and Finck, supra. In each of these cases, unlike here, no notice at all was attempted within the statutory period. See Wolff v. South Dakota Game, Fish and Parks Dep't, 1996 SD 23, p 14, 544 N.W.2d 531, 533 ( )(citing Brandner v. City of Aberdeen, 78 S.D. 574, 577, 105 N.W.2d 665, 666 (1960)).
¶10 Two decades ago in Mount v. City of Vermillion, 250 N.W.2d 686 (S.D.1977), this Court found substantial compliance adequate when interpreting the predecessor statute:
A claimant should be permitted to produce all the evidence available to show reasonable compliance with the notice statute. Thus, if plaintiff can establish that the city received written notice of the accident within sixty days after the accident ... either through notice to the city manager, who is charged by statute with managing the affairs of the city ... or an agent of the city's liability insurance carrier, he should not be nonsuited because he may have failed to give written notice to the auditor.
Id. at 689. (Emphasis added.) We have never reexamined this holding. SDCL 3-21-2 is materially comparable to the statute in Mount:
It is a well settled rule that where a statute which has been construed has been reenacted in substantially the same terms the legislature is presumed to have been familiar with the judicial construction and to have adopted it as a part of the law.
Stormo v. City of Dell Rapids, 75 S.D. 582, 588, 70 N.W.2d 831, 834 (1955). If our Legislature wanted a strict construction of this enactment, it could have so stated. On the contrary, the South Dakota code and "the subjects to which it relates and its provisions and all proceedings under it are to be liberally construed with a view to effect its objects and to promote justice." SDCL 2-14-12.
¶11 We have also held substantial compliance sufficient in other cases. In Inlagen v. Town of Gary, a plaintiff was injured on a defective sidewalk. 34 S.D. 198, 199, 147 N.W. 965, 966 (1914). The statute required notice within sixty days to the town clerk of an intent to sue to ensure sufficient time for investigation. A settlement letter sent to the town clerk within that time "in a general way" brought the claim to the clerk's attention. Id. at 200, 147 N.W. at 966. Similarly, in Walters v. City of Carthage, plaintiff's son was injured on city property and, within the sixty days, provided the city with a list of damages. 36 S.D. 11, 14, 153 N.W. 881, 882 (1915). "This notice was sufficient to...
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