Nyland v. Brock

Decision Date27 June 1996
Docket NumberNo. 95CA0847,95CA0847
Citation937 P.2d 806
PartiesTravis NYLAND, Plaintiff-Appellee, v. Vernalee BROCK and Regional Transportation District, Defendants-Appellants. . IV
CourtColorado Court of Appeals

Benjamin Silva III & Associates, P.C., Robert K. Reimann, Lakewood, for Plaintiff-Appellee.

Regional Transportation District, Michael A. Martinez, Associate General Counsel, Roger C. Kane, Associate General Counsel, Denver, for Defendants-Appellants.

Opinion by Judge TAUBMAN.

Defendants, Vernalee Brock and the Regional Transportation District (collectively RTD), bring this interlocutory appeal from the trial court's determination that the action brought by plaintiff, Travis Nyland, was not barred on the basis of governmental immunity. We affirm.

The relevant facts are not in dispute. In March 1993, while crossing the intersection on foot, plaintiff was injured when he was struck by an RTD bus driven by Brock. Thereafter, plaintiff initiated this action seeking compensation for the injuries he suffered. RTD moved to dismiss the complaint on the basis that the action was barred by the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S. (1988 Repl.Vol 10A). The trial court denied RTD's motion, and this appeal followed.

RTD contends that the trial court erred in not dismissing the complaint because plaintiff failed to provide it with sufficient notice of claim under § 24-10-109, C.R.S. (1988 Repl.Vol. 10A). We disagree.

The GIA provides that a public entity and its employees are immune from liability for all claims that lie or could lie in tort except as expressly provided in the GIA. Section 24-10-105, C.R.S. (1988 Repl.Vol. 10A). Under § 24-10-106(1)(a), C.R.S. (1995 Cum.Supp.), immunity is waived in an action seeking compensation for injuries resulting from a public employee's operation, in the course of his employment, of a motor vehicle owned or leased by the public entity.

The question of whether immunity has been waived under the GIA is an issue of subject matter jurisdiction for the trial court's determination pursuant to C.R.C.P. 12(b)(1) and will not be reversed unless it is clearly erroneous. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). Under C.R.C.P. 12(b)(1), the plaintiff has the burden to prove jurisdiction. Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993).

The trial court, as finder of fact under C.R.C.P. 12(b)(1), may receive any competent evidence pertaining to the issue of subject matter jurisdiction. Trinity Broadcasting of Denver, Inc. v. City of Westminster, supra. If, as here, all relevant evidence has been presented to the trial court, we may decide the issue without remanding for an evidentiary hearing. Capra v. Tucker, supra.

Section 24-10-109(1), C.R.S. (1995 Cum.Supp.) requires that a claimant file a notice of claim with the appropriate governmental entity within 180 days after the claimant discovers he or she has been wrongfully injured. East Lakewood Sanitation District v. District Court, 842 P.2d 233 (Colo.1992); Armstead v. Memorial Hospital, 892 P.2d 450 (Colo.App.1995).

The mandatory notice must include, to the extent the claimant is reasonably able to do so, the information listed in § 24-10-109(2), C.R.S. (1988 Repl. Vol. 10A). Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo.1990). In addition, as pertinent here, § 24-10-109(3), C.R.S. (1988 Repl.Vol. 10A) requires that the notice be filed with the public entity's governing body or its legal counsel.

Compliance with the 180-day notice requirement in § 24-10-109(1) is a jurisdictional prerequisite to suit. Armstead v. Memorial Hospital, supra. However, a claimant need only substantially comply with the statutory requirements as to the contents of the notice given. East Lakewood Sanitation District v. District Court, supra.

Here, although plaintiff did not send a letter to RTD's governing body or its legal counsel of his claim within 180 days of the accident, plaintiff's attorney sent five letters to RTD's claims department within that period. These letters, among other things, stated that the attorney was representing plaintiff; gave the address and telephone number for the attorney and plaintiff; set forth the time, place, and manner of the accident; described the nature and scope of plaintiff's injuries; requested payment of plaintiff's medical expenses; sought the income lost by plaintiff; and set forth the type of work he was engaged in, the number of hours per week he had worked, his hourly wage, and when he would be returning to work.

Attached to the second letter sent by plaintiff's attorney was an RTD accident questionnaire and an RTD application for personal injury benefits that plaintiff had completed. In response to this letter, the claims adjuster requested that plaintiff's attorney assist him in the investigation and asked the attorney to "forward your theory of liability for my Risk Manager's review." After receiving this letter, plaintiff's attorney sent three additional letters to the claims adjuster, including one addressed to him as "Liability Claims Adjuster."

The dispositive issue presented is whether plaintiff complied with the requirement in § 24-10-109(3) that notice be sent to the public entity's governing body or its legal counsel.

Plaintiff first argues that he only needs to achieve substantial compliance with the notice requirement of § 24-10-109(3). We agree.

In Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo. 1996), the supreme court stated that compliance with the service of notice provisions in § 24-10-109(3) is not a jurisdictional prerequisite to suit. The court noted that this part of § 24-10-109(3) together with other subsections of § 24-10-109 "merely spell out the details of the required notice." Regional Transportation District v. Lopez, supra, 916 P.2d at 1193. The court concluded that the jurisdictional language in § 24-10-109(1) "was meant to apply only to the 180-day notice provision found in subsection (1) rather than to all of the other subsections found in section 24-10-109." Regional Transportation District v. Lopez, supra, 916 P.2d at 1194.

Thus, in light of the supreme court's interpretation of § 24-10-109 in Regional Transportation District v. Lopez, supra, we conclude that a claimant need only substantially comply with the § 24-10-109(3) requirement that notice be sent to the public entity's governing body or legal counsel. See Woodsmall v. Regional Transportation District, supra; see also Cassidy v. Reider, 851 P.2d 286 (Colo.App.1993) (notice that named the wrong governmental entity but was delivered to the right address and a copy of which was received by the proper entity's attorney substantially...

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4 cases
  • Brock v. Nyland
    • United States
    • Colorado Supreme Court
    • 13 Abril 1998
    ...(1997). Relying on the plain language of the statute, we conclude that it does not. Our order granting certiorari in Nyland v. Brock, 937 P.2d 806 (Colo.App.1996) set forth several issues and requires that we decide "[w]hether the court of appeals erred in holding that 'a claimant need only......
  • Barham v. Scalia, 95CA1789
    • United States
    • Colorado Court of Appeals
    • 7 Noviembre 1996
    ...of service. See Regional Transportation District v. Lopez, supra; East Lakewood Sanitation District v. District Court, supra; Nyland v. Brock, 937 P.2d 806 (Colo.App. No. 95CA0847, June 27, Scalia contends that, pursuant to §§ 24-10-109 and 24-10-118, Barham was required, but failed, to pro......
  • Bresciani v. Haragan, 97CA0806
    • United States
    • Colorado Court of Appeals
    • 15 Octubre 1998
    ...wanton act or omission. On the contrary, the opinion of the division of this court that the supreme court was reviewing, Nyland v. Brock, 937 P.2d 806 (Colo.App.1996), indicates that both the individual, who was a bus driver, and the entity were sued under § 24-10-106(1)(a), C.R.S.1998, bec......
  • Curlin v. Regional Transp. Dist.
    • United States
    • Colorado Court of Appeals
    • 27 Mayo 1999
    ...sent a notice of claim to either RTD's governing board or attorney within 180 days of the accident. However, relying upon Nyland v. Brock, 937 P.2d 806 (Colo.App.1996), she asserted that she had substantially complied with § 24-10-109(3) because she had sent a notice of claim to RTD's risk ......

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