Nyamatore v. Schuerman

• Decision Date: 31 October 2017
• Docket Number: No. A-16-881.,A-16-881.
• Citation: 904 N.W.2d 730,25 Neb.App. 209
• Parties: Eunice NYAMATORE, appellant, v. Barbara J. SCHUERMAN and Omaha Transit Authority, also known as Transit Authority of Omaha, doing business as Metro Area Transit, appellees.
• Court: Nebraska Court of Appeals

25 Neb.App. 209

904 N.W.2d 730

Eunice NYAMATORE, appellant,

v.Barbara J. SCHUERMAN and Omaha Transit Authority, also known as Transit Authority of Omaha, doing business as Metro Area Transit, appellees.

No. A-16-881.

Court of Appeals of Nebraska.

Filed October 31, 2017.

Paul M. Muia, of Law Offices of Paul M. Muia, Omaha, for appellant.

Ryan M. Kunhart and Jeffrey J. Blumel, of Dvorak Law Group, L.L.C., and Kelsey M. Weiler, of Abrahams, Kaslow & Cassman, L.L.P., Omaha, for appellees.

Moore, Chief Judge, and Bishop and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

Eunice Nyamatore appeals from an order of the district court which granted summary judgment in favor of Barbara J. Schuerman and Omaha Transit Authority (collectively OTA). On appeal, Nyamatore argues the district court erred in granting summary judgment in favor of OTA. She also asserts that the district court erred in finding that equitable estoppel did not apply in this matter. For the reasons set forth below, we affirm.

BACKGROUND

On June 19, 2015, Nyamatore was a passenger on a bus owned and operated by OTA. The bus was involved in an accident, and Nyamatore suffered injuries as a result of the accident. Nyamatore, through counsel, sent a letter of notice of claim to Edith A. Simpson, the legal and human resources director for OTA. The letter was dated July 9, 2015. Simpson was the only named recipient of the notice of claim.

As the legal and human resources director for OTA, Simpson is responsible for providing OTA with legal advice and coordinating OTA's outside legal counsel. Additionally, Simpson is responsible for the administration and coordination of OTA's human resources functions. At the time Nyamatore sent her letter to Simpson, Simpson was not a clerk, secretary, or other official whose duty it was to maintain the official records of OTA, nor had she ever held that position. The executive director of OTA is the only official whose duty it is to maintain the official records of OTA. At the time the notice was received, Curt Simon was the executive director for OTA.

Simpson, on behalf of OTA, responded to Nyamatore's notice in a letter dated April 15, 2016. In the letter, Simpson discussed settling Nyamatore's claim against OTA. Following Simpson's response to Nyamatore, Nyamatore filed a complaint in the district court on May 5, approximately 11 months after the accident.

A few days after Nyamatore filed her complaint in district court, Simpson sent her another letter, dated May 13, 2016. In this letter, Simpson again tried to settle the dispute between Nyamatore and OTA.

OTA filed its answer to Nyamatore's complaint on June 20, 2016. OTA alleged as an affirmative defense that Nyamatore failed to comply with the Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012), thereby barring her claim.

OTA filed a motion for summary judgment on July 1, 2016. The district court held a hearing on the motion on August 19. On September 6, the district court entered an order granting OTA's motion for summary judgment. Nyamatore appeals.

ASSIGNMENTS OF ERROR

Nyamatore argues, restated and consolidated, that the district court erred in (1) granting OTA's motion for summary judgment and (2) finding equitable estoppel did not apply under the facts of this case.

STANDARD OF REVIEW

An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 (2014). An appellate court must view the evidence in the light most favorable to the party against whom the judgment was granted, and give that party the benefit of all reasonable inferences deducible from the evidence. Id.

In actions brought pursuant to the PSTCA, the factual findings of the trial court will not be disturbed on appeal unless clearly wrong. Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 294 Neb. 715, 885 N.W.2d 1 (2016).

A claim of equitable estoppel rests in equity, and in an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court. Steckelberg v. Nebraska State Patrol, 294 Neb. 842, 885 N.W.2d 44 (2016).

ANALYSIS

NOTICE REQUIREMENTS UNDER PSTCA

Nyamatore argues the district court erred in granting OTA's motion for summary judgment because she substantially complied with the notice requirement under the PSTCA. We disagree.

The PSTCA provides limited waivers of sovereign immunity. Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012). Statutes that purport to waive sovereign immunity must be clear in their intent and are strictly construed in favor of the sovereign and against the waiver. See King v. State, 260 Neb. 14, 614 N.W.2d 341 (2000). Section 13-919 provides in part: "Every claim against a political subdivision permitted under the [PSTCA] shall be forever barred unless within one year after such claim accrued the claim is made in writing to the governing body." The same limitation applies for suits against an employee of a political subdivision. See § 13-920.

In this case, Nyamatore sent a letter to OTA's legal and human resources director approximately 3 weeks after the accident. However, OTA argues that Nyamatore's letter did not constitute proper notice "in writing to the governing body" because the letter did not comply with § 13-905, which provides as follows:

All tort claims under the [PSTCA] shall be filed with the clerk, secretary, or other official whose duty it is to maintain the official records of the political subdivision, or the governing body of a political subdivision may provide that such claims may be filed with the duly constituted law department of such subdivision. It shall be the duty of the official with whom the claim is filed to present the claim to the governing body. All such claims shall be in writing and shall set forth the time and place of the occurrence giving rise to the claim and such other facts pertinent to the claim as are known to the claimant.

While not a jurisdictional prerequisite, the filing or presentment of a claim to the appropriate political subdivision is a condition precedent to commencement of a suit under the PSTCA. Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461 (2003). If a political subdivision, by an appropriately specific allegation in a demurrer or answer, raises the issue of the plaintiff's noncompliance with the notice requirement of § 13-905 of the PSTCA, the plaintiff has the burden to show compliance with the notice requirement. Id.

The facts of this case are extremely similar to the facts in Estate of McElwee, supra , including that OTA was the defendant therein. In Estate of McElwee , the Nebraska Supreme Court found that the plaintiff failed to satisfy the notice requirement of the PSTCA because the plaintiff served notice of claim on the defendant's director of administration and human resources rather than the individual responsible for maintaining the defendant's official records—the defendant's executive director of the board of directors—upon whom service was required by the PSTCA.

Nyamatore concedes that this matter was brought under the PSTCA. She also appears to concede that she did not forward her letter to the correct individual at OTA. However, Nyamatore argues that she substantially complied with the PSTCA because OTA was put on notice with the letter she sent to Simpson. Nyamatore also argues that OTA was put on notice of the claim since Simpson was authorized by OTA to offer two different settlement sums. The Nebraska Supreme Court has applied a substantial compliance analysis when there is a question about whether the content of the required claim meets the requirements of the PSTCA; however, the court has expressly held that if the notice is not filed with the person designated by statute as the authorized recipient, a substantial compliance analysis is not applicable. Niemoller v. City of Papillion, 276 Neb. 40, 752 N.W.2d 132 (2008).

In Estate of McElwee, 266 Neb. at 325, 664 N.W.2d at 468, the Nebraska Supreme Court addressed a substantial compliance argument:

While § 13-905 does facilitate the timely investigation of claims ... it is also obviously intended to ensure that notice of pending claims is provided to those who have a legal duty to file those claims in the official records of the political subdivision, and to notify the governing body of the subdivision.

While a subordinate employee may ultimately be directed to oversee the administration of the claim, it is still necessary that the claim be filed in the official records and made known to the governing body, and § 13-905 facilitates this purpose by requiring that claims be presented to the officer of the political subdivision with the legal responsibility for filing such records. "It would defeat the purpose of § 13-905 if mere knowledge of an act or omission, by a nondesignated party, was sufficient to satisfy the requirements of that section." ... In any event, we are not at liberty to ignore the plain language of the statute. In the absence of ambiguity, courts must give effect to statutes as they are written. [The human resources director] did not have any of the duties set forth by the unambiguous language of § 13-905, so the notice of claim directed to [her] was not effective notice under the [PSTCA]. The plaintiff's purported claim did not meet the plainly stated requirements of § 13-905.

(Citations omitted.)

This issue was again addressed in Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 857 N.W.2d 789 (2015). There, the plaintiff filed his claim with the chief executive officer (CEO) of the hospital. The evidence demonstrated that although the CEO actually maintained the...