West Omaha Investments v. Sanitary and Imp. Dist. No. 48 of Sarpy County

• Decision Date: 11 March 1988
• Docket Number: No. 86-532,86-532
• Citation: 420 N.W.2d 291,227 Neb. 785
• Parties: WEST OMAHA INVESTMENTS, a Nebraska Partnership, Appellant, v. SANITARY AND IMPROVEMENT DISTRICT NO. 48 OF SARPY COUNTY, Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 291

420 N.W.2d 291

227 Neb. 785

WEST OMAHA INVESTMENTS, a Nebraska Partnership, Appellant, v. SANITARY AND IMPROVEMENT DISTRICT NO. 48 OF SARPY COUNTY, Nebraska, Appellee.

No. 86-532.

Supreme Court of Nebraska.

March 11, 1988.

Syllabus by the Court

1. Sanitary and Improvement Districts: Words and Phrases: Political Subdivisions Tort Claims Act. A sanitary and improvement district is a "political subdivision" to which the terms of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), are applicable.

2. Political Subdivisions Tort Claims Act: Pleadings: Notice. The filing of a notice of claim under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), is a condition precedent to the institution of suit for an alleged tort against a political subdivision.

3. Political Subdivisions Tort Claims Act: Notice: Damages. All that is necessary to be included in a claim under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), is a recitation of 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. It is not mandated that the claim contain the amount of damages or loss.

4. Political Subdivisions Tort Claims Act: Notice. The purpose of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), is not to require a statement of fact to the extent that the governmental subdivision's absolute liability is verbally demonstrated in the documentary or written claim. Rather, the written claim required notifies a political subdivision concerning possible liability for its relatively recent act or omission and provides an opportunity for the political subdivision to investigate and obtain information about its allegedly tortious conduct.

5. Political Subdivisions Tort Claims Act: Notice. Substantial compliance with the statutory requirements of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), pertaining to a claim's content supplies the requisite and sufficient notice to a political subdivision, when the lack of compliance has caused no prejudice to the political subdivision.

6. Notice. Statutory notice requirements should be liberally construed so that those with meritorious claims are not barred by technicalities.

7. Political Subdivisions Tort Claims Act: Notice. A petition to state a claim against a political subdivision under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), must allege compliance with the terms of the act.

8. Actions: Pleadings: Limitations of Actions. A cause of action pleaded by amendment ordinarily relates back to the original pleading for statute of limitations purposes, provided that the claimant seeks recovery on the same general set of facts.

9. Actions: Pleadings: Limitations of Actions. Alternative theories of recovery on the same general set of facts are not ordinarily separate causes of action for the purposes of the running of a statute of limitations.

10. Actions: Pleadings: Limitations of Actions. As a general rule, an amended pleading which relies upon the same set of facts as the original pleading, but simply alters the legal theory upon which recovery is sought, will relate back even though the statute of limitations has run in the interim.

11. Limitations of Actions. The main purpose of the statute of limitations is to notify the defendant of a complaint against it within a reasonable amount of time so that the defendant is not prejudiced by having an action filed against it long after the time it could have prepared a defense against the claim.

John D. Hartigan and Thomas D. Wulff of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellant.

Dixon G. Adams, Bellevue, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

Following the demurrer of Sanitary and Improvement District No. 48 of Sarpy County, Nebraska (S.I.D. No. 48), the district court dismissed plaintiff's fourth amended petition because of failure to state a cause of action and because of the expiration of the statute of limitations.

In its first petition, plaintiff stated that it owned real estate located within the boundaries of Sanitary and Improvement District No. 51 (S.I.D. No. 51). It further alleged that in order to provide adequate water for fire protection, S.I.D. No. 51 contracted with the defendant, also a sanitary and improvement district, whereby the latter was to furnish water for such purposes. On January 15, 1984, a fire occurred in an industrial building owned by the plaintiff in S.I.D. No. 51, and because of the alleged negligent failure of S.I.D. No. 48 to turn on the water service to mains providing water service to S.I.D. No. 51, plaintiff's property was damaged in a substantial amount.

After several procedural skirmishes, plaintiff filed a third amended petition on March 10, 1986, wherein for the first time it was alleged that defendant "may be a political subdivision as defined in the Political Subdivisions Tort Claim Act...." A demurrer to this petition was also sustained, and, on April 15, 1986, plaintiff filed its last amended petition, which finally alleged that a claim had been made against the defendant sanitary and improvement district which was not acted upon and which was withdrawn.

The last amended petition was dismissed, according to the order of the trial court, because "[t]he Court finds that the plaintiff failed to present a claim within the one year time period required by statute and that the petition should be dismissed pursuant to Section 25-221, R.R.S.Neb.1943, Reissue of 1985."

The record discloses that on January 4, 1985, the plaintiff sent a letter to the clerk of S.I.D. No. 48, containing the following language:

RE: 10802 Frontage Road

I-80

Sarpy County, Nebraska

Dear Mr. Sapp:

I am writing to you because you are shown as the Clerk for Sanitary Improvement District No. 48 in Sarpy County, Nebraska.

Pursuant to § 23-2404, R.R.S. (Reissue of 1983) [the Political Subdivisions Tort Claims Act], claim is made against Sanitary Improvement District No. 48 for the property loss suffered on January 15, 1984 at 10802 Frontage Road, I-80 in Sarpy County, Nebraska, by West Omaha Investments, a partnership. The improvements at this location were destroyed by fire on that date. Preliminary investigation indicates that a contributing cause of the fire loss was the negligent omission on the District's part--in failing to furnish the water with which to extinguish this fire. Please present this claim to the governing body of the political subdivision. If you have any questions, or if additional information would be of assistance to you in your consideration of this claim, please call me.

Yours very truly,

KENNEDY, HOLLAND, DELACY & SVOBODA

[attorneys for plaintiff]

There appears to be no question but that a sanitary and improvement district is a "political subdivision" and that the terms of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983 & Cum.Supp.1984), are applicable. S.I.D. No. 95 v. City of Omaha, 221 Neb. 272, 376 N.W.2d 767 (1985). As such, a plaintiff is required to file a claim in writing with the clerk of the district which sets 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." § 23-2404 (Reissue 1983). This claim must be made within 1 year after it accrues. § 23-2416 (Cum.Supp.1984).

Furthermore, the filing of a notice of claim under the Nebraska Political Subdivisions Tort Claims Act is a condition precedent to the institution of suit against a political subdivision. Utsumi v. City of Grand Island, 221 Neb. 783, 381 N.W.2d 102 (1986).

The trial court agreed with the defendant that the letter did not satisfy the requirements of the claim statute in that it did not specify the amount of damages sustained as a result of the fire. For that reason, according to the trial court, a proper claim was never filed.

The defendant, as well as the lower court, relied on Peterson v. Gering Irr. Dist., 219 Neb. 281, 363 N.W.2d 145 (1985). In Peterson, the plaintiffs' "claim" consisted of a document which stated in part:

"[Y]ou [the irrigation district] have failed to deliver water by reason of negligence or omission of duties and responsibilities of the District and [the plaintiffs] shall hold such district liable for whatever damages may result as a result of failure to deliver water as required by the laws of the State of Nebraska." (Emphasis supplied.)

Id. at 283-84, 363 N.W.2d at 147. This court found that such document was not a valid claim against the political subdivision because "[t]he document contained no statement as to the amount of damage or loss sustained by the plaintiffs, nor did it allege that such damage or loss had occurred." Id. at 284, 363 N.W.2d at 147.

The lower court apparently read this as requiring a plaintiff to specify an exact dollar amount of loss in its claim. However, upon a closer look, it appears that the court in Peterson was mostly concerned that the plaintiffs make an actual demand upon the defendant. The court emphasized that the questionable language in the plaintiffs' "claim" was "whatever damages may result...." Id. Furthermore, the court went on to point out: "Despite plaintiffs' characterization of the document as a 'claim,' it made no demand against the district; rather, it only alerted the district to the possibility of a claim." (Emphasis supplied.) Id. The court then distinguished a claim from a mere notice of a possible demand by citing from In re Estate of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (1983). In Feuerhelm, the court had compared a notice with a "claim" upon an estate:

The...