Hathaway v. State ex rel. Medical Research & Technical Authority , 73 O.B.A.J. 1853 ( 2002 )

OPALA, J.,

with whom KAUGER, J., joins, concurring in allowing the prematurely-filed claim to survive and dissenting from today's holding that breach of the no-suit time bar may be fatal to a claim.

1 1 The issue presented today is whether a prematurely-filed governmental tort action may ripen into a timely claim upon the expiration of the no-suit time bar. I coneur in the result (that allows the claim's survival by giving prospective effect to the court's opinion), but dissent from the rationale that underlies today's pronouncement. The court correctly holds that this appellant's claim should go forward, but ignores the purpose and intent of the terms of 51 0.8.2001 § 157. Because I would hold that the no-suit time bar's violation by plaintiff's premature filing is never a legally tenable ground for an action's termination (by dismissal or summary disposition), I dissent from today's opinion.

I

THE LEGISLATIVE INTENT OF § 157 MILITATES AGAINST DISMISSAL OF A CLAIM FOR VIOLATION OF THE NO-SUIT TIME BAR.

[2 By the provisions of the Governmental Tort Claims Act (GTCA), unless written notice of a claim is presented within one year from the date of loss the claim is forever barred.¹ "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.² The quoted provisions of § 157(A) may be called a "negative statute of limitations"-a span during which no suit may be brought against a governmental entity.³ As the court correctly notes, the legislative intent of § 157 is to afford the affected governmental entity an opportunity to investigate and review the claim to determine whether settlement or litigation is the better choice. The court overlooks this legislative purpose when it concludes that noncompliance with § 157s no-suit time bar is to be regarded as fatal to a claim.

T8 Appellant conformed to the provisions of 51 00.98.2001 § 156 by giving the defendants notice. He then filed his claim before the ninety-day no-suit time bar ended. The state did not deny the noticed claim before the expiration of the statutory period. At this point, the law clearly allowed appellant 180 days to bring suit. According to appellant, his premature filing ripened into a timely action the moment the 90-day no-suit time bar came to an end, and nothing else was required.

T4 The legislative intent of § 157 plainly supports appellant's position. As a "negative statute of limitations" the provision creates no more than a time period for the affected governmental entity to investigate a claim. The section is intended solely to delay the filing. The plaintiff's right to press the demand remains intact. Two conceptually dis-tinet time bars are to be distinguished in this context: (1) an "ordinary" or "true" statute of limitations that regulates the time to bring an action and (2) a § 157 negative bar by which the state is afforded a temporary shield from litigation's commencement.⁴ Because the latter time bar does not inject a substantive element into the claim, its breach will not warrant the claim's judicial termination.⁵ The only consequence of the plaintiff's premature filing is that the state may invoke an ex lege stay and stop all proceedings during the unexpired term of the time bar.

II

APPELLANTS PREMATURE COMMENCEMENT, WHICH DID NOT FRUSTRATE THE PURPOSE OF § 157, RIPENED INTO A TIMELY FILING UPON THE EXPIRATION OF THE NO-SUIT TIME BAR

115 I counsel the court (a) that § 157 may not fatally affect the appellant's substantive right to prosecute the action and urge it (b) to hold that appellant's premature filing should be held to have ripened-by operation of law-into a timely commencement of an action upon the expiration of the no-suit time bar. Although the actual filing was untimely, no proceedings took place during the unexpired period whose conduct might have harmed the affected governmental entity. The latter had ample opportunity and freedom to deny or settle the claim within the time allowed by law. In short, there is here no legal ground for using the provisions of § 157 as a mechanism for inflicting upon the appellant legal disability to pursue the litigation. The suit's prematurity does not carry collateral consequences. The negative statute the plaintiff breached is flexible. Its time bar "may be extended by tolling, waiver or estoppel." ⁶

T 6 Public policy and evenhanded fairness dictate that in the present case the claim should have been considered as having ripened into a timely commencement upon the expiration of the no-suit time bar.⁷ Ever since the collapse of the common law's writ regime, the Anglo-American legal system has stood committed to ridding itself of yest-eryears's incrustation with an excessive dose of ritualistic formalism.⁸ Today's holding is imprisoned in the adjective law's now-obsolete one-strike-and-you-are-out rigidity of the middle ages.⁹

IH

SUMMARY

T7 The provisions of 51 0.8.2001 § 157 erect a 90-day no-suit time bar which affords the affected governmental entity a temporary shield from litigation. Although the court recognizes the correct legislative intent of § 157, it does not analyze the issue before it in that light. I concur in the disposition, but dissent from the court's opinion. The plaintiff's breach of the no-suit time bar by premature filing may not fatally affect his right to press the suit. Its only adverse consequence is an ex lege stay that will stop trial court proceedings during the unexpired span of the no-suit time bar.

Appellant filed his claim before the expiration of the no-suit time bar. His filing neither impaired nor impeded the government's ability to evaluate the tort claim and no interim nisi prius proceedings (with adverse consequences) came to be set in motion. The premature claim ripened into a timely filing upon the expiration of the 90-day no-suit time bar.

1 . 51 0.$.2001§ 156(B).

2 . 51 0.8.2001 § 157(A) states that:

"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 ..."

51 0.S.2001 § 157(B) provides that:

''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 the section ..."

3 . Trent v. Board of Commissioners of Johnston County, 1988 OK 15, ¶ 6, 755 P.2d 615 (Opala, J., dissenting).

4 . Whitley v. Oologah Independent School District, 741 P.2d 455, 457 (1987) (Opala, J., concurring).

5 . Some authority seems to suggest that prematurely filing a claim before the expiration of the no-suit bar will be fatal. In Johnston v. City of Seattle, 95 Wash.App. 770, 976 P.2d 1269 (1999), the Washington Court of Appeals, Division I, held that a claim prematurely filed before the expiration of the sixty-day no-suit time bar was subject to judicial termination.

6 . Trent v. Board of Commissioners of Johnston County, 1988 OK 15, ¶ 6, 755 P.2d 615 (Opala, J., dissenting).

7 . Bivins v. State ex rel. Oklahoma Memorial Hospital 917 P.2d 456 (1996). (holding that the governmental entity's request for more information extended the 90-day no-suit time bar.)

8 . City of Tahlequah v. Lake Region Elec., 2002 OK 2, 47 P.3d 467 (Opala, J., dissenting).

9 . Recent Oklahoma legislation explicitly prevents judicial punishment of premature filings by making them effective either temporarily or forever. 12 O.S.2001 § 653; 12 O.S.2001 § 9904; Cf. Porter v. Tayer, 385 P.2d 808 (1963); (holding that a motion for new trial, prematurely filed before the court's pronouncement of final judgment, does not preserve for review any assignments of error).