Pellegrino v. State ex rel. Cameron Univ., 97,223.

• Decision Date: 21 January 2003
• Docket Number: No. 97,223.,97,223.
• Citation: 63 P.3d 535
• Parties: Dr. Robert J. PELLEGRINO, Dr. Kimberly C. Pellegrino, Plaintiffs, v. The STATE of Oklahoma, ex rel. CAMERON UNIVERSITY, ex rel. The BOARD OF REGENTS OF the STATE of Oklahoma, Dr. T.K. Bhattacharya, Defendants.
• Court: Oklahoma Supreme Court

63 P.3d 535

Dr. Robert J. PELLEGRINO, Dr. Kimberly C. Pellegrino, Plaintiffs, v. The STATE of Oklahoma, ex rel. CAMERON UNIVERSITY, ex rel. The BOARD OF REGENTS OF the STATE of Oklahoma, Dr. T.K. Bhattacharya, Defendants.

No. 97,223.

Supreme Court of Oklahoma.

January 21, 2003.

George S. Freedman, Lee, Freedman & Wells, Oklahoma City, OK, for Plaintiffs.

Joseph Harroz, Jr., Jill Fisher, Norman, OK, for Defendants.

SUMMERS, J.

¶ 1 The Honorable David L. Russell of the United States District Court for the Western District of Oklahoma certified to this Court the following question: "Whether the notice requirements of the Oklahoma Governmental Tort Claims Act apply to tort claims alleged against a state employee arising out of on-the-job conduct beyond the scope of his employment?" We answer in the negative.

¶ 2 Drs. Robert and Kimberly Pellegrino brought suit against the defendants arising out of their former employment at Cameron University. The Pellegrinos alleged in their complaints that defendant Dr. Bhattacharya acted outside the scope of his employment by tortiously interfering with their employment contracts. Dr. Bhattacharya was the Business Department Chair when these acts allegedly occurred. We need not detail the alleged facts since they are not necessary in deciding the question of law as presented to us by the Federal Court.

¶ 3 Dr. Bhattacharya moved for a dismissal of the tortious interference claims against him. The basis for the dismissal was that the Pellegrinos did not comply with the notice provisions of the Oklahoma Governmental Tort Claims Act. The Pellegrinos responded with an argument that the notice provisions do not apply. The Federal court ruled that the Pellegrinos' tort claims against Dr. Bhattacharya in his official capacity should be dismissed for lack of notice, but claims against him in his individual capacity should not be so dismissed. Upon a motion for reconsideration of that ruling Judge Russell certified the question to this Court. ¶ 4 The Governmental Tort Claims Act, GTCA, (51 O.S.2001 §§ 151 et seq.), makes a distinction between a government employee acting within the scope of employment and one who was not. Martin v. Johnson, 1998 OK 127, ¶ 28, 975 P.2d 889, 895; Carswell v. Oklahoma State University, 1999 OK 102, ¶ 20, 995 P.2d 1118, 1123. An act of the employee is not in the scope of employment if the employee acted maliciously or in bad faith. Id., citing, Nail v. City of Henryetta, 1996 OK 12, ¶ 7, 911 P.2d 914, 916. A government employee acting within the scope of employment is relieved from private (individual) liability for tortious conduct, but when an employee acts outside the scope of employment the political subdivision is relieved from liability. Martin v. Johnson, 1998 OK 127, at ¶ 28, 975 P.2d at 895. The concept of scope of employment is thus tied to whether the employee or the government entity may be liable for a particular act.¹

¶ 5 An individual's "official capacity" usually refers to a person's status as a representative of an entity where that representation is legally recognized. Braswell v. U.S., 487 U.S. 99, 107-108, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988); Black's Law Dictionary, 1236 (4th ed.1951), (defining "official"). The phrases "individual capacity" or "personal capacity" are usually used to distinguish "separately and personally" from joint or official action. Black's Law Dictionary, 914 (4th ed.1951), (defining "individually"). A suit against a governmental officer in his or her "official capacity" is the same as a suit against the entity that the officer represents, and is an attempt to impose liability upon that entity. McMillian v. Monroe County, Ala., 520 U.S. 781, 785, n. 2, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997).

¶ 6 We view a tort claim brought against an employee in his or her official capacity as an attempt to impose liability upon the governmental entity, and thus the claim must be based upon the employee having acted within the scope of his or her employment. Of course, designating an employee in his or official capacity as a named defendant for this type of claim is improper since: "In no instance shall an employee of the state or the political subdivision acting within the scope of his employment be named as a defendant" except certain resident physicians and interns. 51 O.S.2001 § 163(C). See Parker v. City of Midwest City, 1993 OK 29, n. 1, 850 P.2d 1065, 1066. A suit against an employee in his or her official capacity, as a suit against the governmental entity, must be based upon the claimant presenting written notice of a claim within one year of the date the loss occurs, or the claim is forever barred. Hathaway v. State ex rel. Medical Research & Technical Authority, 2002 OK 53, ¶ 8, 49 P.3d 740, 742, citing, 51 O.S.2001, § 156(B). See also, Minie v. Hudson, 1997 OK 26, 934 P.2d 1082, 1086. The fact that no such notice was given here is the basis for the Federal Court's dismissal of the claim against the Defendant doctor in his official capacity.

¶ 7 Must a claim brought against the employee in his individual capacity also be based upon a written notice of claim within the statutory period? We answer in the negative. A claim alleging that an employee injured the plaintiff while acting outside the scope of his or her employment, an individual capacity claim, need not be based upon compliance with the notice requirements of the Governmental Tort Claims Act, as we now explain.

¶ 8 We turn first to the GTCA itself to see what it requires.

§ 156. Presentation of claim — Limitation of actions — Filing — Notice — Wrongful death

A. Any person having a claim against the state or a political subdivision within the scope of Section 151 et seq. of this title shall present a claim to the state or political subdivision for any appropriate relief including the award of money damages.

B. Claims against the state or a political subdivision are to be presented within one (1) year of the date the loss occurs. A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.

51 O.S.2001 § 156, (emphasis added).

We further look to the GTCA for definitions of "claim," "State," and "political subdivision" to determine the identity of those subject to § 156.

3. "Claim" means any written demand presented by a claimant or the claimant's authorized representative in accordance with this act to recover money from the state or political subdivision as compensation for an act or omission of a political subdivision or the state or an employee;. . .

8. "Political subdivision" means:

a. a municipality,

b. a school district,

c. a county,

d. a public trust where the sole beneficiary or beneficiaries are a city, town, school district or county. . . .

10. "State" means the State of Oklahoma or any office, department, agency, authority, commission, board, institution, hospital, college, university, public trust created pursuant to Title 60 of the Oklahoma Statutes of which the State of Oklahoma is the beneficiary, or other instrumentality thereof; . . .

51 O.S.2001 § 152(3), (8), (10), (emphasis added).

The statute for providing notice, § 156, speaks of claims against the "state" and a "political subdivision." A claim against an employee in the employee's personal or individual capacity does not fall within the definition of "claim," "State," or "political subdivision" found in § 152.

¶ 9 The statute for instituting suit also speaks of claims against the state or political subdivision.

§ 157. Denial of claim — Notice

A. A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the state or political subdivision has denied the claim or reached a settlement with the claimant before the expiration of that period. . . .

B. No action for any cause arising under this act, Section 151 et seq. of this title, shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section. The claimant and the state or political subdivision may agree in writing to extend the time to commence an action for the purpose of continuing to attempt settlement of the claim except no such extension shall be for longer than two (2) years from the date of the loss.

51 O.S.2001 § 157, (emphasis added).

We conclude that the language of the statutes governing notice do not on their face require their compliance for a claim brought against an employee in the employee's individual or personal capacity. This conclusion is consistent with our opinions on claims against the State or a political subdivision.

¶ 10 In Holman v. Wheeler, 1983 OK 72, 677 P.2d 645, we construed the former Political Subdivision Tort Claims Act, (51 O.S.1981 §§ 151 et seq.). We explained that allegations of the employee's willful and wanton acts "place appellee [defendant/employee] outside the scope of his employment," and that "the trial court erred in holding that appellants' tort claims was within the purview of the Tort Claims Act." Id. 677 P.2d at 647-648. Our analysis in Holman is consistent with our opinion construing the GTCA in Sholer v. State ex rel. Dept. of Public Safety, 1995 OK 150, 945 P.2d 469.

¶ 11 In Sholer we were asked to determine if the notice provisions of the GTCA applied to an action brought to recover statutorily unauthorized fees collected by the Department of Public Safety (DPS). The DPS argued that an exemption from tort liability, i.e., sovereign immunity, applied to a claim based upon the defenses of either the State's immunity in collection of fees imposed by law or the State's immunity in the exercise of its licensing powers. We said that sovereign immunity was not...