Whitley v. Oologah Independent School District No. I-4 of Rogers County , 741 P.2d 455 ( 1987 )

PER CURIAM:

The appellants, Harold and Norma Jean Whitley, sustained bodily injury and property damage in a five-vehicle accident on June 18,1982. The chain-reaction collisions were alleged to have been proximately caused by a school bus, owned and operated by Oologah Independent School District No. 1-4, which was at that time being driven by its employee, Mikeal T. Wyckoff.

On July 13, 1982, the Whitleys notified the school district superintendent of their claim against the school district for vehicular damage and bodily injury resulting from the accident. On October 2,1982, the Whitleys entered into a settlement agreement with State Farm Automobile Insur-anee Company, the insurer of-the school district, with respect to the prepayment of vehicular damage. The Whitleys and State Farm thereafter continued settlement negotiations relating to the personal injury portion of the Whitleys’ claim against the school district. By letter, dated March 30, 1983, State Farm requested a settlement conference with Whitleys’ counsel on April 13, 1983, “so that a proper offer can be made and we can begin to work toward closing of this matter”. Further fruitless settlement negotiations concerning the personal injury portion of the Whitleys’ claim continued until such time as the Whitleys filed suit on July 7, 1983.

The school district, State Farm, and Wyckoff objected to the filing of this suit on the ground that the court had no jurisdiction under the doctrine of sovereign immunity. The trial court elected to treat the appellees’ motion as a special demurrer and allowed the appellants to amend their petition. After the amended petition was filed, the named appellees renewed their objections to appellants’ suit. Appellees contended the procedural guidelines set forth by 51 O.S.1981 § 151 et. seq. had not been followed and the suit was thus barred by sovereign immunity. On October 20, 1983, the trial court entered an order treating the objections raised by appellees as a special demurrer. The special demurrer was overruled as to Wyckoff. However, the special demurrer was sustained as to appellee, Ool-ogah Independent School District No. 1-4, and the school district was dismissed from the suit. On appeal, the appellants argue the trial court erred in sustaining the special demurrer as to the school district; and that the trial court erroneously dismissed the school district from the suit.

The requirements for maintaining suit against a political subdivision are set forth at 51 O.S.1981 § 156(C) which provides in part:

No action for any cause arising under this act shall be maintained unless valid notice has been given and the action is commenced within six (6) months after notification of denial of the claim by the clerk of political subdivision.

Likewise, the requisite basis for denial of a claim by a political subdivision is explained in 51 O.S.1981 § 157:

Within ninety (90) days after receiving the filing of a claim, the clerk of the political subdivision shall notify the claimant in writing of the approval or denial of the claim. A claim is denied if the political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the interested parties have reached a settlement before the expiration of that period. A person may not initiate a suit against a political subdivision or employee whose conduct gave rise to the claim unless the claim has been denied in whole or in part, (emphasis added)

This Court has interpreted the statutes as allowing a 90-day period after the filing of a claim in which a political subdivision may approve a claim. If the claim is not approved during that period, the claim is deemed denied by operation of law. Neal v. City of Blackwell, 670 P.2d 587, 588 (Okl.1983). Also See, Lucas v. Independent Public School District Number 35 of Holdenville, 674 P.2d 1131,1133 (Okl.1983) wherein it is stated:

There appears on the record no approval, therefore it was deemed denied ninety days from the date of notice.... Where a claim is deemed denied, the six-month limitation of Section 156(C) is activated. This is the reasonable construction of the statute despite that section’s language, “and the action is commenced within six (6) months after notification of denial of the claim by the clerk of the political subdivision.”

At issue here, however, is the application of the statutes where there has been a partial settlement or partial approval of the claim. The portion of the Whitleys’ claim relating to property damage was settled shortly before the expiration of the 90-day period, but negotiations continued as to the settlement of the remainder of the claim. By virtue of the partial settlement and promises to settle the remainder of the claim, it is the Whitleys’ contention that the 90-day period was tolled and the six-month time limit was never triggered. We agree. One cannot equitably lull an adversary into a false sense of security, thereby subjecting his claim to the bar of limitations, and then be heard to plead that very delay as a defense to the action. Hart v. Bridges, 591 P.2d 1172 (Okl.1979). The action filed within six months of April 13,1983, the appointed date for negotiations, was hence timely. The judgment of the trial court is therefore REVERSED and this cause is REMANDED for further proceedings.

DOOLIN, C.J., and SIMMS, OPALA, WILSON and SUMMERS, JJ., concur. HARGRAVE, V.C.J., and HODGES, LAVENDER, JJ., dissent. KAUGER, J., disqualified.