Shandy v. Lunceford, 94CA0160

• Decision Date: 03 November 1994
• Docket Number: No. 94CA0160,94CA0160
• Citation: 886 P.2d 319
• Parties: 96 Ed. Law Rep. 744 Jeffrey M. SHANDY and Donald R. Kidd, Plaintiffs-Appellants, v. Karen LUNCEFORD, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 319

886 P.2d 319

96 Ed. Law Rep. 744

Jeffrey M. SHANDY and Donald R. Kidd, Plaintiffs-Appellants, v. Karen LUNCEFORD, Defendant-Appellee.

No. 94CA0160.

Colorado Court of Appeals,

Div. III.

Nov. 3, 1994.

Stephen M. Munsinger, Denver, for plaintiffs-appellants.

Shand, McLachlan & Newbold, P.C., Michael E. McLachlan, Durango, for defendant-appellee.

Opinion by Judge DAVIDSON.

In this action to recover damages for personal injuries allegedly sustained in an automobile accident, plaintiffs, Jeffrey M. Shandy and Donald R. Kidd, appeal from the judgment dismissing their complaint against defendant, Karen Lunceford, for lack of subject matter jurisdiction. We affirm.

According to the complaint, plaintiffs were injured on March 3, 1992, when their vehicle collided with an automobile and trailer negligently operated by defendant.

Defendant filed an answer which admitted that a collision occurred on March 3, 1992, denied negligence, and asserted that the accident resulted from plaintiff Kidd's careless driving. She later filed an amended answer alleging that, at the time of the accident, she was acting in the course and performance of her duties as a teacher at Ignacio Elementary School, and adding the affirmative defense of sovereign immunity pursuant to the Colorado Governmental Immunity Act.

Subsequently, pursuant to C.R.C.P. 12(b)(1), defendant filed a motion for dismissal based upon lack of subject matter jurisdiction. Specifically, defendant asserted that plaintiffs had failed to comply with the notice provisions of the Colorado Governmental Immunity Act and that such compliance was a jurisdictional prerequisite to any tort action against a public employee.

In response, plaintiffs asserted that they had not learned of defendant's public employment until her deposition in August 1993. They further asserted that defendant was not acting within the course and scope of her employment at the time of the accident.

Pursuant to § 24-10-108, C.R.S. (1988 Repl.Vol. 10A) and C.R.C.P. 12(d), the trial court conducted an evidentiary hearing to determine the factual issues. Subsequently, the trial court entered written findings of fact and conclusions of law and dismissed the complaint for lack of subject matter jurisdiction, concluding that plaintiffs had not timely complied with the mandatory notice requirements of the Colorado Governmental Immunity Act.

I.

Initially, we address plaintiffs' contention that the trial court erred in concluding that it lacked subject matter jurisdiction over their negligence claims. Specifically, they argue that the running of the notice statute did not deprive the court of subject matter jurisdiction. We do not agree.

Section 24-10-118(1), C.R.S. (1988 Repl.Vol. 10A) provides that any action against a public employee which lies in tort and arises out of injuries sustained from an act or omission of such employee during the performance of his or her duties and within the scope of employment is subject to certain procedural requirements, regardless of whether the action is one for which the public entity might be liable for payment of a judgment.

One such requirement is compliance with the notice provisions of § 24-10-109, C.R.S. (1988 Repl.Vol. 10A) which is a jurisdictional prerequisite to any such action against a public employee. Failure to comply forever bars any such action against a public employee. Section 24-10-118(1)(a), C.R.S. (1994 Cum.Supp.). See Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993).

The supreme court has consistently held that, in cases in which the claimants have failed to give notice within 180 days of the discovery of their injury, their claims are forever barred. See, e.g., City of Lafayette v. Barrack, 847 P.2d 136 (Colo.1993); see also East Lakewood Sanitation District v. District Court, 842 P.2d 233 (Colo.1992) (under the plain language of the section, when a party fails to comply with the 180-day notice requirement, the party's action must be dismissed). These cases are dispositive of plaintiffs' contentions that the trial court could have retained jurisdiction despite the lack of timely notice.

We also disagree with plaintiffs insofar as they appear to argue that the trial court was required to exercise jurisdiction over their negligence claims, notwithstanding the jurisdictional prerequisites, because to do otherwise would conflict with the stated purpose of the Colorado Auto Accident Reparations (No-Fault) Act, § 10-4-701, et seq., C.R.S. (1987 Repl.Vol. 4A), to ensure compensation for victims of auto accidents.

The express intent of the Governmental Immunity Act is to cover all actions against governmental entities or public employees which lie or could lie in tort. Thus, with exceptions not pertinent here, no public employee may be held liable for injuries arising out of a negligent act or omission occurring during the performance of her duties and within the scope of her employment except as provided in the Act. See § 24-10-105, C.R.S. (1988 Repl.Vol. 10A).

Further, the Colorado Governmental Immunity Act expressly states that public employees should be liable for their actions only to such an extent and subject to such conditions as are provided in the Act. Section 24-10-102, C.R.S. (1988 Repl.Vol. 10A). As stated, one of these conditions is the timely filing of a notice of claim.

Thus, to hold that a notice of claim was not required under the circumstances here would create an exception to the express requirements which the Colorado Governmental Immunity Act imposes to limit the circumstances in which public employees may be held accountable in tort. The No Fault Act contains no explicit or implicit provisions which would permit us to do so. See State Department of Highways v. Mountain States Telephone & Telegraph Co., 869 P.2d 1289 (Colo.1994).

II.

Plaintiffs next contend that the trial court erred in its determination that defendant was acting within the course of her public employment at the time of the accident. We perceive no error.

Plaintiffs do not appear to question whether a public employee driving her own motor vehicle in the course of her employment is entitled to claim sovereign immunity. And, we note, the plain language of § 24-10-118(2)(a), C.R.S. (1994 Cum.Supp.) would indicate that she is. Compare § 24-10-118(2)(a) with § 24-10-106(1)(a), C.R.S. (1994 Cum.Supp.) (waiver of immunity for operation of a motor vehicle owned or leased by a public entity by a public employee in the course of employment). Plaintiffs do argue, however, that because she was driving her own vehicle home after work...