Smith v. City of Preston

• Decision Date: 21 November 1978
• Docket Number: No. 12295,12295
• Citation: 99 Idaho 618,586 P.2d 1062
• Parties: Don C. SMITH, Plaintiff-Appellant, v. CITY OF PRESTON, a municipal corporation, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1062

586 P.2d 1062

99 Idaho 618

Don C. SMITH, Plaintiff-Appellant, v. CITY OF PRESTON, a municipal corporation, Defendant-Respondent.

No. 12295.

Supreme Court of Idaho.

Nov. 21, 1978.

Vern E. Herzog, Jr., and Bruce S. Bistline of Herzog & Isley, Pocatello, for plaintiff-appellant.

W. Marcus W. Nye, Racine, Huntley & Olson, Pocatello, for defendant-respondent.

BAKES, Justice.

Plaintiff appellant Smith was injured and his automobile damaged in an accident in Preston, Idaho. Smith sued defendant respondent City of Preston claiming that the city's failure to properly maintain a stop sign was the cause of the accident. Smith appeals from a summary judgment in favor of the city, arguing that the district court erred (1) in allowing the city to amend its answer, and (2) in concluding that Smith had failed to comply with the notice requirements of the Idaho Tort Claims Act. I.C. §§ 6-901 to -928.

I

The accident occurred on September 27, 1973. In a letter dated October 8, 1973, a representative of Smith's collision insurance carrier informed the city that Smith had been involved in an automobile accident, that a stop sign obscured by tree branches was the cause of the accident, and that the city would be presented with a subrogation claim as soon as the total damages were determined. In a letter dated December 21, 1973, the city's insurance carrier denied the claim.

On February 11, 1974, Smith filed a complaint alleging that the city's negligence was the proximate cause of the accident and seeking damages for personal injuries and damage to the automobile. With apparent reference to the letter of October 8, written on behalf of Smith's insurance carrier, paragraph III of the complaint alleged: "That notice of claim has been presented to the clerk of the City of Preston within 120 days from the date of the accident, to wit: On October 8, 1973."

In January of 1975 the district court granted summary judgment in favor of the city for reasons not involved in this appeal. Smith appealed to this Court from that judgment. In October of 1975 this Court reversed and remanded the case. Smith v. City of Preston, 97 Idaho 295, 543 P.2d 848 (1975). While the case was pending on the first appeal, this Court released its decisions in Newlan v. State, 96 Idaho 711, 535 P.2d 1348 (1975), Appeal dismissed sub nom. Agost v. Idaho, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975), and Independent School District v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), which upheld the notice requirements of the Idaho Tort Claims Act.

Following the remittitur to the district court, the city filed a second motion for summary judgment on the ground that Smith had not complied with the notice requirements of the Idaho Tort Claims Act and that this Court's decisions in Newlan and Callister required strict compliance with those notice requirements. The city later sought leave to amend its answer to include as an affirmative defense an allegation that Smith had failed to comply with the notice requirements. The district court permitted the amendment and subsequently granted the city's motion for summary judgment. Smith brings this appeal contesting the order permitting the city to amend its answer and the order granting summary judgment to the city. We consider those issues in that order.

II

Smith argues that the city's original answer was not sufficient to put in issue Smith's compliance with the notice requirements and that the district court erred in granting the city leave to amend its answer. Regardless of whether the original answer was adequate to raise the notice issue, we conclude that the district court did not err in granting the city leave to amend. Liberality is to be used in granting leave to amend and this matter is entrusted to the sound discretion of the trial court. See Markstaller v. Markstaller, 80 Idaho 129, 326 P.2d 994 (1958); 6 C. Wright & A. Miller, Federal Practice & Procedure, Civil § 1484 (1971). Our decisions in Newlan And Callister were released while the instant case was pending on appeal. The holdings of those cases could suggest to defense counsel that there was a genuine issue whether this plaintiff had complied with the notice requirements where counsel could have reasonably concluded under the prior case law that there was no such issue. The city sought leave to amend its answer at the first opportunity following the remittitur in order to raise this issue. The record indicates that the trial judge carefully considered the justice and fairness of allowing the city to amend its answer. Under these circumstances we cannot say that the district court abused its discretion in granting the city leave to amend. See Emich Motors Corp. v. General Motors Corp., 229 F.2d 714 (7th Cir. 1956).

III

The Idaho Tort Claims Act requires claims against a political subdivision, such as the city, to be filed with the clerk of the public entity within 120 days from the date the claim arose or reasonably should have been discovered. I.C. § 6-906. We have ruled that compliance with the Act's notice requirements is a condition precedent to bringing a suit under that Act. Newlan v. State, supra. Smith argues that the district court erred in concluding that the letter of October 8, written on behalf of his insurance carrier, was not an adequate notice of claim under the Act. In our view this assignment of error raises two distinct issues: (1) did the contents of the letter satisfy the Act's requirements for the contents of a claim against a governmental entity; and (2) was Smith entitled to rely upon that letter as notice of his claim?

With respect to the first question the contents of a claim the Act provides:

"6-907. CONTENTS OF CLAIMS FILING BY AGENCY OR ATTORNEY EFFECT OF INACCURACIES. All claims presented to and filed with a governmental entity shall accurately describe the conduct and circumstances which brought about the injury or damage, describe the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six (6) months immediately prior to the time the claim arose. . . . A claim filed under the provisions of this section shall not be held invalid or insufficient by reason of an inaccuracy in stating the time, place, nature or cause of the claim, or otherwise, unless it is shown that the government entity was in fact misled to its injury thereby."

The letter of October 8, which was sent well within the 120 day period, stated "This letter is to advise that we represent the collision insurance carrier of Don C. Smith of Blackfoot, Idaho.

"Mr. Don C. Smith was involved in an automobile accident on 9-27-73 at approximately 7:30 PM at the intersection of 2nd South and First East in Preston, Idaho. This accident also involved Mr. Ralph Glen Stowell of 254 South First West, Logan, Utah.

"Our investigation reveals that the proximate cause of the accident was because of the stop sign located on the southwest corner of the intersection was obscured by branches from a tree. We are hereby placing the City of Preston on notice of a subrogation claim which will be presented as soon as we have the total damages completed.

"If you do have a liability carrier, we recommend that you turn this letter over to your company for investigation."

The city's insurance carrier replied with the following letter:

"Thank you for your letter concerning the above captioned accident. Having thoroughly investigated this accident to include talking to Mr. Bert Gailey, the investigating officer, I find that no portion of the blame for this accident can be placed on the City of Preston.

"The tree in question is neither owned or maintained by the City of Preston. According to the investigating officer, he explored the possibility that the owner of the tree might have caused some visibility problems with respect to the stop sign. By his measurements he found that the stop sign was completely visible for a period of 69 feet upon approaching the stop sign.

"Immediately following the accident, Mr. Smith, one of the operators involved, said, in effect, 'officer was there a stop sign there?', and upon the affirmative answer from the investigating officer then replied, in effect, 'then I sure went through it because I didn't see it.'

"Please consider this letter as a denial on your subrogated request."

Although the contents of the letter of October 8 does not comply with all the requirements enumerated in § 6-907, we believe the contents of the letter were adequate in light of the final proviso of that section which states that "(a) claim . . . shall not be held invalid or insufficient by reason of an inaccuracy in stating the time, place, nature or cause of the claim, or otherwise, unless it is shown that the governmental entity was in fact misled to its injury thereby." I.C. § 6-907. At the time summary judgment was entered, there was nothing in the record to suggest that the city was "misled to its injury" by any deficiencies in the contents of the letter. On the contrary, the reply by the city's insurance carrier indicates that the October 8 letter was sufficient to notify the city that a claim against it was being pursued and to apprise the city of sufficient facts for it to investigate the matter, determine its merits and prepare a defense. See Newlan v. State, supra.

Because the letter of October 8 adequately informed the city of a claim against it, the notice issue raised here is very different from that raised in Newlan and Callister. Those cases involved situations in which the governmental entity had learned, through its own investigation or otherwise, of the occurrence of the accident and injury during the 120 day period; the governmental entity had "substantial actual notice" of the injury....