Saylor v. State

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/28/2020 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SAYLOR v. STATE
Cite as 306 Neb. 147
James Saylor, appellant,
v. State of Nebraska
et al., appellees.
___ N.W.2d ___
Filed June 19, 2020. No. S-18-794.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Tort Claims Act: Political Subdivisions Tort Claims Act: Appeal
and Error. Where the relevant facts are undisputed, whether the notice
requirements of the State Tort Claims Act or the Political Subdivisions
Tort Claims Act have been satisfied is a question of law, on which
an appellate court reaches a conclusion independent of the lower
court’s ruling.
4. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
5. Administrative Law. Agency regulations that are properly adopted and
filed with the Secretary of State have the effect of statutory law.
6. Political Subdivisions Tort Claims Act: Notice. In cases under the
Political Subdivisions Tort Claims Act, the substantial compliance doc-
trine applies when deciding whether the content of a claim satisfies the
presuit claim presentment requirements in Neb. Rev. Stat. § 13-905
(Reissue 2012).
7. ____: ____. Substantial compliance with the statutory provisions per-
taining to a claim’s content supplies the requisite and sufficient notice
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to a political subdivision in accordance with the Political Subdivisions
Tort Claims Act when the lack of compliance has caused no prejudice to
the political subdivision.
8. Tort Claims Act: Political Subdivisions Tort Claims Act. Generally,
provisions of the State Tort Claims Act should be construed in har-
mony with similar provisions under the Political Subdivisions Tort
Claims Act.
9. ____: ____. Under the State Tort Claims Act, when a question is raised
about whether the content of a presuit tort claim complied with the man-
ner in which the State Claims Board prescribed such claims to be filed,
the substantial compliance doctrine may be applied, just as it is applied
under the Political Subdivisions Tort Claims Act.
10. ____: ____. Under both the State Tort Claims Act and the Political
Subdivisions Tort Claims Act, application of the substantial compliance
doctrine is limited to the content of a presuit claim. The doctrine of sub-
stantial compliance does not apply when considering whether a presuit
tort claim has complied with statutory timing requirements or whether it
has been served on the recipient described in the statute.
11. Tort Claims Act: Political Subdivisions Tort Claims Act: Notice.
Under both the State Tort Claims Act and the Political Subdivisions
Tort Claims Act, application of the doctrine of substantial compliance is
confined to situations where the content of the tort claim nevertheless
satisfies the primary purpose of the presuit notice requirements by noti-
fying the state or political subdivision about possible tort liability for a
recent act or omission so it may investigate and make a decision whether
to pay or defend the claim.
Appeal from the District Court for Lancaster County:
Robert R. Otte, Judge. Reversed and remanded for further
proceedings.
Michael J. Wilson, of Berry Law Firm, for appellant.
Douglas J. Peterson, Attorney General, Scott R. Straus, and,
on brief, David A. Lopez, Deputy Solicitor General, for appel-
lee State of Nebraska.
Miller-Lerman, Cassel, Stacy, and Funke, JJ.
Stacy, J.
James Saylor, an inmate at the Nebraska Department of
Correctional Services (DCS), appeals from an order dismissing
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SAYLOR v. STATE
Cite as 306 Neb. 147
his lawsuit under the Nebraska State Tort Claims Act (STCA), 1
based on a finding that Saylor failed to comply with the pre-
suit filing requirements of the STCA. 2 Because we find Saylor
substantially complied with those requirements, we reverse,
and remand for further proceedings.
BACKGROUND
Tort claims against the State are governed by the STCA. 3
This case requires us to focus on the presuit administrative
requirements of the STCA. Before suit can be commenced
under the STCA, a claimant must present the claim in writing
to the Risk Manager for the State Claims Board within 2 years
after the claim accrued. 4 Pursuant to § 81-8,212, such claim
“shall be filed with the Risk Manager in the manner prescribed
by the State Claims Board.” Generally speaking, a claimant
cannot file suit under the STCA until the Risk Manager or
State Claims Board makes a final disposition of the claim. 5
However, if no final disposition of a claim has been made after
6 months, § 81-8,213 authorizes the claimant to withdraw the
claim and commence an action under the STCA. 6
We have described the presuit claim presentment require-
ment in § 81-8,212 and the final disposition requirement in
§ 81-8,213 as procedural conditions precedent to commenc-
ing a tort action against the State in district court, and not
as jurisdictional prerequisites for the adjudication of a tort
claim against the State. 7 Noncompliance with these procedural
1
Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp.
2018).
2
See § 81-8,212.
3
Komar v. State, 299 Neb. 301, 908 N.W.2d 610 (2018).
4
See, § 81-8,227(1); Komar, supra note 3.
5
§ 81-8,213; Komar, supra note 3.
6
Komar, supra note 3.
7
See Cole v. Isherwood, 264 Neb. 985, 653 N.W.2d 821 (2002) (superseded
by rule on other grounds as stated in Weeder v. Central Comm. College,
269 Neb. 114, 691 N.W.2d 508 (2005)).
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SAYLOR v. STATE
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conditions precedent is considered an affirmative defense to
be raised by the State. 8 We apply the same rules to the presuit
claim presentment and final disposition procedures under the
Political Subdivisions Tort Claims Act (PSTCA). 9 Under both
the STCA and the PSTCA, the primary purpose of the presuit
claim presentment procedures is the same: to notify the state
or political subdivision about possible tort liability for a recent
act or omission, to provide an opportunity to investigate the
allegedly tortious conduct, and to enable the state or politi-
cal subdivision to make a decision whether to pay or defend
the claim. 10
Saylor Files Tort Claims
With Risk Manager
Between June 12, 2016, and February 23, 2017, Saylor filed
16 separate tort claims with the Risk Manager. 11 Pursuant to
§ 81-8,212 of the STCA, these claims had to “be filed with the
Risk Manager in the manner prescribed by the State Claims
Board.” Saylor filed all 16 of his claims using the standard
form provided by the Risk Manager. Each claim form con-
tained 18 fields requesting information regarding the claim.
Some fields were marked with an asterisk indicating it was
a “required” field. Further, each form contained a blank area
with the following instructions:
Provide detailed itemization of all known facts/
circumstances/damages leading to your claim. Identify
all property, places, and people involved. Include names,
8
Id.
9
Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012 & Cum. Supp. 2018).
See, e.g., Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007);
Big Crow v. City of Rushville, 266 Neb. 750, 669 N.W.2d 63 (2003);
Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003); Millman v.
County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990) (superseded by
rule on other grounds as stated in Weeder, supra note 7).
10
See, Cole, supra note 7; Chicago Lumber Co. v. School Dist. No. 71, 227
Neb. 355, 417 N.W.2d 757 (1988).
11
See § 81-8,212.
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addresses and phone numbers of witnesses, if any. The
information provided herein, along with the findings
of the investigating agency, will form the basis of
any decision.
In this section, most of Saylor’s claim forms described
instances in which he claimed the actions of DCS or its
employees either denied him timely medical care, aggravated
his existing post-traumatic stress disorder, or deprived him
of the use of devices that eased his pain. In a few claim
forms, Saylor alleged DCS staff deprived him of the use of
certain legal materials in his possession or interfered with
his ability to meet with his attorney. Saylor generally stated
that all these things caused him physical and emotional pain
and suffering.
On each form, Saylor provided information in all required
fields. One of the required fields, field No. 9, was titled “Total
Amount of Claim.” When completing field No. 9 on each
claim form, Saylor wrote “[t]o be proven” without specifying
a dollar amount.
The Risk Manager, in a series of letters, acknowledged
receiving all of Saylor’s claims. Those letters notified Saylor
of the claim numbers assigned to his claims and advised it
may take up to 6 months to receive final disposition. None
of the letters indicated the claim forms were incomplete, and
there is no evidence that additional information was requested
from Saylor during the Risk Manager’s investigation. The
parties generally agree the Risk Manager denied Saylor’s
tort claims in a series of letters dated June 15, 2017. Those
denial letters indicated that upon investigating the claims, “it
was determined that there is no evidence of staff misconduct
or negligence.”
Complaint and Motion for
Summary Judgment
On June 16, 2017, Saylor filed a complaint in district
court against the State of Nebraska, DCS, and 10 unnamed
DCS employees (the State). He thereafter filed an amended
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SAYLOR v. STATE
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complaint, styled as 16 separate causes of action, each one
premised on a tort claim previously submitted to and denied
by the Risk Manager. The State moved to dismiss the amended
complaint for failure to state a claim. 12 The parties stipulated
to the receipt of evidence and agreed the motion should be
treated as one for summary judgment. 13
The State’s sole argument for summary judgment was
that Saylor failed to satisfy the claim presentment provi-
sions of § 81-8,212 with respect to his claimed damages.
The State asserted, summarized, that § 81-8,212 requires all
tort claims to be filed “in the manner prescribed by the State
Claims Board” and that regulations adopted by the State
Claims Board 14 require all claims to “contain all information
called for” on the claim form. 15 The State argued that Saylor’s
claims did not “contain all information called for” on the form
because he did not specify a dollar amount in field No. 9. In
remarks to the court, the State suggested there were other pos-
sible deficiencies in Saylor’s tort claims, but in the interest of
time, it had elected to seek dismissal only on the basis that no
dollar amount was specified in field No. 9. The district court
limited its analysis accordingly.
District Court Order
The district court agreed with the State that by not specify-
ing a dollar amount in field No. 9, Saylor had not filed his
claim in the manner prescribed by the State Claims Board, and
that therefore, he had not complied with § 81-8,212. The court
expressly rejected Saylor’s assertion that the State waived its
right to contest compliance with the claims procedure under
§ 81-8,212 by accepting his claim forms, sending him letters
acknowledging receipt and assigning claims numbers, and then
denying the claims on their merits.
12
See Neb. Ct. R. Pldg. § 6-1112(b)(6).
13
§ 6-1112(b).
14
See § 81-8,221.
15
Neb. Admin. Code, State Claims Board, rule No. 12 (1975).
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SAYLOR v. STATE
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The district court granted the State’s motion for summary
judgment and dismissed Saylor’s amended complaint with
prejudice. Saylor timely appealed, and we moved the case to
our docket on our own motion.
ASSIGNMENTS OF ERROR
Saylor assigns, restated, that the district court erred in grant-
ing the State’s motion for summary judgment because (1)
Saylor’s tort claim forms provided the requested information
and substantially complied with the presuit requirements of the
STCA and (2) the State waived any challenge to compliance
with requested information on the tort claim forms.
STANDARD OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. 16 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence. 17
[3] Where the relevant facts are undisputed, whether the
notice requirements of the STCA or the PSTCA have been sat-
isfied is a question of law, on which an appellate court reaches
a conclusion independent of the lower court’s ruling. 18
[4] Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an
16
JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71
(2019).
17
Id.
18
Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461
(2003).
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independent conclusion irrespective of the decision made by
the court below. 19
ANALYSIS
The sole issue on appeal is whether the district court erred
in dismissing Saylor’s STCA action for failure to comply with
the presuit claim presentment requirement of § 81-8,212. As
stated, that statute requires, in relevant part, that “[a]ll tort
claims shall be filed with the Risk Manager in the manner pre-
scribed by the State Claims Board.” 20
The State Claims Board has adopted rules and regulations
that prescribe not only the manner of filing a tort claim, but
also the form and content of such claims. Assuming without
deciding that the statutory authority to prescribe the “manner”
of filing tort claims with the Risk Manager includes prescrib-
ing the form and content of such claims, we summarize, in
the next section, the pertinent regulations adopted by the State
Claims Board.
[5] A certified copy of those regulations was received into
evidence at the summary judgment hearing. It showed the
regulations were adopted in 1975 and have not been amended
since that time. It also showed the regulations have been signed
and approved by the Governor and the Attorney General, as
well as filed with the Secretary of State. We have held that
agency regulations that are properly adopted and filed with the
Secretary of State have the effect of statutory law. 21
State Claims Board Rules
and Regulations
Regarding the manner of filing a tort claim, the regulations
require it “shall be filed in triplicate with the Secretary of the
Board, State Capitol Building, State House Station, Lincoln,
19
JB & Assocs., supra note 16.
20
§ 81-8,212 (emphasis supplied).
21
Val-Pak of Omaha v. Department of Revenue, 249 Neb. 776, 545 N.W.2d
447 (1996).
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Nebraska, 68509.” 22 Regarding the form of filing a tort claim,
the regulations require that it “should be typewritten and upon
a form provided by the Board, but claims printed by hand
upon the Board’s form will be accepted if legible.” 23 And
regarding the content of a tort claim, the regulations require
that “[a]ll claims shall contain all information called for on
the Board’s ‘Claim for Injury or Damage’ form, including
the instructions printed on the back of the blue sheet of the
form set, and also such other information as is pertinent to
the claim.” 24
Also received into evidence was a certified copy of a docu-
ment titled “Standard Operating Procedures: How to File a
Tort Claim Against the State of Nebraska.” According to the
certificate, these operating procedures are available online
and were created by the State’s risk management division of
the Department of Administrative Services. Unlike properly
adopted administrative regulations, an agency’s operating pro-
cedures do not have the force and effect of law. 25
As relevant to the issues on appeal, the Risk Manager’s
operating procedures contain instructions regarding which
form to use when filing a tort claim, how to complete the
form, and how to file the form once completed. These instruc-
tions differ from the State Claims Board’s regulations in
several key respects. Specifically, the Risk Manager’s instruc-
tions do not reference the “Claim for Injury or Damage”
form required by the regulations, and instead, they direct
that a “Tort & Miscellaneous Claim Form” be completed.
The Risk Manager’s instructions do not direct that the claim
form be filed in triplicate with the secretary of the State
22
Neb. Admin Code, State Claims Board, rule No. 6 (1975).
23
Neb. Admin Code, State Claims Board, rule No. 7 (1975).
24
Rule No. 12, supra note 15.
25
See, e.g., Reed v. State, 272 Neb. 8, 717 N.W.2d 899 (2006) (in contrast to
agency regulations, agency manuals and guidelines lack force of law and
do not warrant deference).
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Claims Board as required by the regulations, but instead,
they direct that the form should be submitted electronically to
“as.riskmanagement@nebraska.gov” or mailed to the “Office
of Risk Management” at a specific post office box in Lincoln.
The Risk Manager’s operating procedures also provide that
“[o]nly fully completed and signed Tort Claim Forms will
be accepted by the office of Risk Management.” It is undis-
puted that all of Saylor’s tort claims were accepted by the
Risk Manager and that all were presented using the “Tort &
Miscellaneous Claim Form.”
Arguments of Parties
After Saylor commenced his tort action in district court, the
State sought dismissal based on a single affirmative defense:
that Saylor’s presuit tort claims were deficient because when
he answered field No. 9, asking for the “Total Amount of
Claim,” he did not provide a dollar amount, and instead stated
“[t]o be proven.” The State contends that because the answer
to field No. 9 did not reference a dollar amount, the forms
did not “contain all information called for,” 26 and that thus,
the claims were not filed “in the manner prescribed by the
State Claims Board” as required by § 81-8,212. The State also
asserts, as it did before the trial court, that the substantial com-
pliance doctrine which this court has applied when reviewing
the content of presuit claims under the PSTCA 27 should not
be applied under the STCA. The State argues, summarized,
that the substantial compliance doctrine is inconsistent with
the principle that “requirements of the [STCA] must be fol-
lowed strictly.” 28
26
Rule No. 12, supra note 15.
27
See, e.g., Jessen, supra note 9; West Omaha Inv. v. S.I.D. No. 48, 227 Neb.
785, 420 N.W.2d 291 (1988); Chicago Lumber Co., supra note 10.
28
See Jill B. & Travis B. v. State, 297 Neb. 57, 69, 899 N.W.2d 241, 252
(2017).
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Saylor contends that even though his answer to field No. 9
was not stated in dollars, he nevertheless provided “all infor-
mation called for” 29 on the standard form, and that he thus
substantially complied with the provisions of § 81-8,212. He
also argues it was impossible for him to strictly comply with
the “manner prescribed by the State Claims Board” for fil-
ing claims, pursuant to § 81-8,212, because the State Claims
Board’s rules and regulations are outdated and inconsistent
with the information and instructions on the only claim form
currently made available for filing tort claims—the “Tort &
Miscellaneous Claim Form.”
Substantial Compliance Doctrine
Under PSTCA
[6] In cases under the PSTCA, we have long applied the
substantial compliance doctrine when deciding whether the
content of a claim satisfied the statutory presuit claim present-
ment requirements. 30 Section 13-905 sets out the PSTCA’s pre-
suit claim presentment requirements, and it is the counterpart
to § 81-8,212 under the STCA.
Section 13-905 requires that “[a]ll [tort] claims shall be in
writing and shall set forth the time and place of the occur-
rence giving rise to the claim and such other facts pertinent
to the claim as are known to the claimant.” We pause here to
observe that when the Legislature prescribed the content of
presuit claims under the PSTCA, it identified some require-
ments that are specific and objective (like the time and place
of the occurrence) and some which are nonspecific and subjec-
tive (like “other facts pertinent to the claim as are known to
the claimant”). The challenge of determining compliance with
similar presuit notice requirements that predated the PSTCA
29
Rule No. 12, supra note 15.
30
See, e.g., Jessen, supra note 9; West Omaha Inv., supra note 27; Chicago
Lumber Co., supra note 10.
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led this court, more than a century ago, to adopt the substantial
compliance doctrine.
In City of Lincoln v. Pirner, 31 we applied the substantial
compliance doctrine to a statute requiring that before a tort
action could be commenced against the city, “‘it shall be nec-
essary that the party file in the office of the city clerk, within
three months from the time such right of action accrued, a
statement giving full name and the time, place, nature, cir-
cumstances and cause of the injury or damage complained
of.’” In that case, the plaintiff’s written claim stated that he
fell into a “coal-hole” in a city sidewalk, but it incorrectly
identified the block number. 32 We rejected the city’s argument
that this claim was deficient, reasoning that the presuit notice
requirement “should be liberally construed by the courts” and
that “if the description given and the inquiries suggested by it
will enable the agents and servants of the city to find the place
where the accident occurred, there is a substantial compliance
with the law.” 33
In Chicago Lumber Co. v. School Dist. No. 71, 34 we addressed
whether a letter complied with the presuit claim presentment
requirements of the PSTCA. At the time, those requirements
were codified at Neb. Rev. Stat. § 23-2404 (Reissue 1983) and
provided, as § 13-905 does now, that a claim must “set 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.”
The claim letter at issue did not reference a particular time
or place, but it complained that the plaintiff had provided the
school district with building materials and supplies in connec-
tion with a recent project to renovate a specific school. The
31
City of Lincoln v. Pirner, 59 Neb. 634, 639-40, 81 N.W. 846, 847 (1900)
(quoting Comp. Stat. ch. 13a, § 36 (1899)).
32
Pirner, supra note 31, 59 Neb. at 637, 81 N.W. at 846.
33
Id. at 640, 81 N.W. at 847.
34
Chicago Lumber Co., supra note 10.
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letter cited to statutes requiring the school district to obtain
a construction bond from the contractor. The letter further
stated that the district had failed to obtain such a bond in
connection with the particular renovation project and that the
plaintiff had suffered damages as a result.
[7] On appeal, the school district claimed this presuit
notice was insufficient under the PSTCA because it did not
state with precision the time and location of the occurrence
giving rise to the claim. 35 We disagreed, reasoning that the
language of § 23-2404 did not require a claimant to “state the
indicated information, circumstances, or facts with the full-
ness or precision required in a pleading.” 36 We explained “the
notice requirements for a claim filed pursuant to the [PSTCA]
are [to be] liberally construed so that one with a meritorious
claim may not be denied relief as the result of some techni-
cal noncompliance with the formal prescriptions of the act.” 37
And we said that “substantial compliance with the statutory
provisions pertaining to a claim’s content supplies the requi-
site and sufficient notice to a political subdivision in accord­
ance with [the PSTCA], when the lack of compliance has
caused no prejudice to the political subdivision.” 38 Because
the claim letter identified the contractor to whom the plaintiff
had delivered the supplies and identified the particular school
renovation project at issue, we found the content of the claim
substantially complied with the time and place requirements
under the PSTCA.
In West Omaha Inv. v. S.I.D. No. 48, 39 we again addressed
whether the content of a letter complied with the presuit pre-
sentment requirements of the PSTCA. In a letter to the political
35
Id.
36
Id. at 368, 417 N.W.2d at 765.
37
Id. at 369, 417 N.W.2d at 766.
38
Id. (emphasis supplied).
39
West Omaha Inv., supra note 27.
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subdivision, the plaintiff claimed fire damage to specific prop-
erty on a specific date and alleged that a contributing cause of
the fire damage was the defendant’s negligence in failing to
furnish water with which to extinguish the fire. The political
subdivision argued this claim was insufficient because it did
not specify a dollar amount of damage. We held the contents
of the letter were sufficient, noting in part that the statutory
language did not “mandate that the claim contain the amount
of damages or loss.” 40 We also reasoned that the letter substan-
tially complied with the statute because it set forth the date,
location, and circumstances of the event giving rise to the
claim and alleged that property loss had occurred as a result of
the political subdivision’s negligence.
As these cases illustrate, we have long applied the sub-
stantial compliance doctrine when the question presented
was whether the content of a presuit tort claim satisfied the
statute and supplied the political subdivision with sufficient
notice to enable it to accomplish the primary goals of the
presuit claim presentment requirements under the PSTCA
and similar statutes. 41 But as other cases illustrate, we have
declined to apply the substantial compliance doctrine when the
question presented did not involve compliance with content-
based requirements.
We have refused to apply the substantial compliance doc-
trine when the presuit claim was not filed with the statutorily
authorized recipient, 42 reasoning that notice to the wrong
recipient may deprive a political subdivision of the opportunity
40
Id., 227 Neb. at 790, 420 N.W.2d at 295. Compare Jessen, supra note 9
(holding presuit presentment requirements of PSTCA not substantially met
because claim did not make any demand).
41
Accord, Loontjer v. Robinson, 266 Neb. 902, 914, 670 N.W.2d 301, 310
(2003) (Hendry, C.J., concurring) (“‘[s]ubstantial compliance with a statute
is not shown unless it is made to appear that the purpose of the statute is
shown to have been served. What constitutes substantial compliance with
a statute is a matter depending on the facts of each particular case’”).
42
See, e.g., Estate of McElwee, supra note 18; Willis v. City of Lincoln, 232
Neb. 533, 441 N.W.2d 846 (1989).
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to investigate and settle claims and thus must be given to a
person or entity specified in the statute. 43 Similarly, we have
refused to apply the substantial compliance doctrine to presuit
claims that did not comply with the statutory time limits under
the PSTCA, reasoning that, unlike the general requirements
regulating the content of presuit claims, the time limits are
specific and can be determined with precision. 44 And finally,
we have refused to apply the substantial compliance doctrine
when the content of the purported claim was so indefinite or
contingent in nature it could not fairly be characterized as pre-
senting a tort claim at all. 45
Substantial Compliance
Doctrine and STCA
[8] We have not yet had occasion to consider the propriety
of applying the substantial compliance doctrine to the content
of a presuit claim under the STCA. Generally, provisions of the
STCA should be construed in harmony with similar provisions
under the PSTCA. 46 We have expressly recognized the simi-
larity of the presuit content claim presentment requirements
under § 81-8,212 of the STCA and § 13-905 of the PSTCA, 47
and as discussed already, we have consistently applied the
substantial compliance doctrine to the content of such claims
under the PSTCA.
The State concedes the substantial compliance doctrine has
been applied for decades to similar presuit claims under the
43
Willis, supra note 42.
44
See, Big Crow, supra note 9; Schoemaker v. Metro. Utilities Dist., 245
Neb. 967, 515 N.W.2d 675 (1994).
45
See, e.g., Jessen, supra note 9 (letter to physician accusing malpractice
but not making any demand is not written tort claim under § 13-905);
Peterson v. Gering Irr. Dist., 219 Neb. 281, 363 N.W.2d 145 (1985) (letter
to irrigation district that made no actual demand but merely alerted district
to possible claim for damages that may occur is not claim).
46
Cole, supra note 7.
47
See id.
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PSTCA, but it asks us to find the doctrine is incompatible
with the STCA. As support for this argument, the State relies
exclusively on the principle, articulated in Jill B. & Travis B.
v. State, 48 that “because the State has given only conditional
consent to be sued and there is no absolute waiver of immu-
nity by the State, requirements of the [STCA] must be fol-
lowed strictly.” The State argues this principle is incompatible
with the doctrine of substantial compliance.
We agree that strictly following the requirements of the
STCA, and any statute that purports to waive the sovereign
immunity of the state or a political subdivision, 49 is a foun-
dational principle in our sovereign immunity jurisprudence.
But as we explain, we are not persuaded that this principle
is offended by applying the substantial compliance doctrine
to the content of presuit claims under either the PSTCA or
the STCA.
The principle from Jill B. & Travis B. on which the State
relies was not being applied to the content of presuit claims.
Instead, in Jill B & Travis B., we were considering the
applicability of exceptions to the State’s waiver of sovereign
immunity for tort claims arising out of misrepresentation and
deceit. 50 In that context, we emphasized the importance of
strictly construing statutes that are in derogation of sovereign
immunity. 51
The presuit claim procedures under the PSTCA and the
STCA are not statutes in derogation of sovereign immunity,
but, rather, they are administrative in nature, intended to give
the government notice of a recent tort claim so it can investi-
gate and, if appropriate, resolve the claim before suit is com-
menced. 52 Unlike statutes in derogation of sovereign immunity,
48
Jill B. & Travis B., supra note 28, 297 Neb. at 69, 899 N.W.2d at 251-52.
49
Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019).
50
See § 81-8,219(4).
51
Jill B. & Travis B., supra note 28.
52
See, e.g., Cole, supra note 7; Chicago Lumber Co., supra note 10.
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the presuit claim procedures do not identify the particular tort
claims for which the State has conditionally waived its sov-
ereign immunity and consented to suit, 53 nor do they identify
the tort claims the State has exempted from that waiver. 54
Instead, the presuit claim presentment requirements are proce-
dural conditions precedent to commencing a tort action against
the government in district court; they are not jurisdictional. 55
We see no incompatibility between our precedent that rules
of strict construction must be applied to statutes in derogation
of sovereign immunity and our precedent that the doctrine of
substantial compliance may be applied to statutes governing
the content of presuit notice requirements. 56 Indeed, given how
some of the content requirements are described in the statutes
and regulations, it is difficult to imagine how strict compliance
could be utilized by courts if we were to require it.
Applying the substantial compliance doctrine to the general
content provisions under the PSTCA was, in some respects, a
practical necessity because there was no principled way for a
court to determine whether a claimant had strictly complied
with the general requirement in § 13-905 that a claim include
“such other facts pertinent to the claim as are known to the
claimant.” Similarly, under the STCA, we question how a court
would go about determining whether a claimant has strictly
complied with the State Claims Board’s regulation requiring
that a claim include “such other information as is pertinent to
the claim.” 57
But as our cases make clear, our application of the substan-
tial compliance doctrine has been limited to a claim’s content,
53
See, e.g., §§ 81-8,215 and 81-8,215.01.
54
See, e.g., § 81-8,219.
55
See Cole, supra note 7.
56
Accord Franklin v. City of Omaha, 230 Neb. 598, 432 N.W.2d 808 (1988)
(acknowledging some states apply strict construction to all presuit claim
requirements under their tort claims acts, but Nebraska does not).
57
Rule No. 12, supra note 15.
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and the doctrine is not applied to all of the presuit notice
requirements. We still apply rules of strict construction when
considering whether a presuit tort claim has complied with
statutory timing requirements 58 and whether it has been served
on the recipient described in the statute. 59
We therefore disagree with the State that applying the sub-
stantial compliance doctrine when analyzing the content of
presuit tort claims under the PSTCA and the STCA is incon-
sistent with the well-settled principle that statutes in derogation
of sovereign immunity must be strictly construed or with the
principle that the “requirements of the [STCA] must be fol-
lowed strictly.” 60
[9-11] We hold that when a question is raised about whether
the content of a presuit tort claim complied with the manner
in which the State Claims Board prescribed such claims to
be filed, the substantial compliance doctrine may be applied
under the STCA, just as it is applied under the PSTCA. And,
consistent with what we have done under the PSTCA, the
doctrine is limited to the content of the presuit claim and does
not apply when such a claim is not filed with the statutorily
authorized recipient 61 or when it is not filed in compliance
with the statutory time limits. 62 Furthermore, application of
the doctrine of substantial compliance under both the PSTCA
and the STCA is confined to situations where the content of
the presuit claim nevertheless satisfied the primary purpose of
the presuit notice requirements by notifying the state or politi-
cal subdivision about possible tort liability for a recent act or
58
Big Crow, supra note 9; Schoemaker, supra note 44. See, also, State v.
Saylor, 304 Neb. 779, 936 N.W.2d 924 (2020) (strictly construing STCA
statute of limitation provisions).
59
Estate of McElwee, supra note 18; Willis, supra note 42.
60
Jill B. & Travis B., supra note 28, 297 Neb. at 69, 899 N.W.2d at 252.
61
See, e.g., Estate of McElwee, supra note 18; Willis, supra note 42.
62
See, e.g., Big Crow, supra note 9; Schoemaker, supra note 44.
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omission so it may investigate and make a decision whether to
pay or defend the claim. 63
Having concluded the substantial compliance doctrine can
apply to the content of claims under the STCA, we proceed
to analyze whether Saylor’s claim was properly dismissed for
failing to comply with the presuit presentment requirements
under the STCA.
Content of Saylor’s Claim Forms
Substantially Complied
As noted, the State argues that on all 16 of Saylor’s claim
forms, his response to field No. 9 was insufficient in that it
did not reference a dollar amount. Saylor responds that even
though his answers were not stated in dollars, they neverthe-
less contained “all information called for” 64 on the standard
form, and thus, they substantially complied with the provisions
of § 81-8,212. Saylor also contends that on the record in this
case, he could not have strictly complied with all the require-
ments of the State Claims Board.
We agree with Saylor that, in this case, there was no
way he could have strictly complied with the “manner pre-
scribed by the State Claims Board” 65 for filing his tort claims.
This is so for at least two reasons. First, the specific claim
form required by the regulations—the Board’s form entitled
“Claim for Injury or Damage”—is not the same form currently
being used by the Risk Manager—the “Tort & Miscellaneous
Claim Form.” Consequently, there was no way the content of
Saylor’s claims could have strictly complied with the regula-
tion’s requirement that it “contain all information called for
on the Board’s ‘Claim for Injury or Damage’ form.” 66 Second,
the requirement under the regulations that the completed
63
See, Cole, supra note 7; Chicago Lumber Co., supra note 10.
64
Rule No. 12, supra note 15.
65
§ 81-8,212.
66
Rule No. 12, supra note 15.
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claim form be filed in triplicate with the secretary of the State
Claims Board is not the same filing method as is required under
either § 81-8,212 (which requires filing the claim “with the
Risk Manager”) or under the Risk Manager’s standard operat-
ing procedures (which asks that the form be either emailed or
mailed to the Risk Manager). Consequently, although Saylor
filed his claims with the statutorily authorized recipient, there
was no way he could have strictly complied with the statutory
requirement that he do so “in the manner prescribed by the
State Claims Board.” 67 The State’s briefing ignored the dis-
parity between the Board’s adopted regulations and the Risk
Manager’s standard operating procedures, but we agree with
Saylor that, as a practical matter, this disparity prevents strict
compliance with the statutory and regulatory requirements
concerning the manner of filing a tort claim.
The question then is whether the content of Saylor’s
tort claims substantially complied with the requirements of
§ 81-8,212 and its related regulations prescribing the manner
of filing such claims. We conclude that as to the challenged
content, Saylor’s tort claims did substantially comply with the
requirements of § 81-8,212 and afforded the State sufficient
notice to satisfy the purpose of the presuit claim presentment
requirement. 68
The State challenges the sufficiency of Saylor’s responses
to only field No. 9 on the claim forms, which asks for the
“Total Amount of Claim.” The State insists that the term
“Amount” in this context necessarily requires the answer to
be stated in terms of a dollar amount. But the claim form
does not specify that a dollar amount must be provided,
and the regulation governing the content of claims does not
require that a dollar amount be provided. And to the extent
the instructions in the Risk Manager’s operating procedures
can fairly be understood to indicate that “Total Amount of
67
§ 81-8,212.
68
See Cole, supra note 7.
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Claim” should be stated in terms of dollars, those instructions
do not have the force and effect of law. On this record, we
find Saylor’s answer stating “[t]o be proven” substantially
complied with the question asked in field No. 9.
That is particularly so where, as here, the tort claims were
seeking general damages. The State’s singular focus on the
answer to field No. 9 paints an incomplete picture of the
State’s knowledge regarding the damages being sought, and it
ignores altogether the additional information Saylor provided
in the narrative sections of his claim forms, many of which
stated that the various acts and omissions of the State caused
him physical and emotional pain and suffering. So although
it is true that Saylor did not, in either field No. 9 or in his
narratives, place a specific dollar amount on his damages, his
failure to do so is nevertheless consistent with the nature of
his claims and the relief he sought.
Saylor’s tort claims were premised on assertions that the
State had denied him (1) timely and adequate medical care,
(2) the use of his personal property, and (3) access to his
attorney. His claims generally stated that this conduct caused
him physical and emotional pain and suffering. In light of the
nature of Saylor’s claims, his answer that the total amount of
his claim was “[t]o be proven” was entirely consistent with
how we treat allegations of general damages. 69 It would be an
odd result if we were to demand more specificity regarding
general damages in a presuit tort claim than is required in the
complaint once litigation is commenced.
Finally, we do not doubt the State’s assertion that know-
ing the specific dollar amount of a tort claim can make “a
significant difference in terms of how the claim is processed
and at what level.” 70 But given the nature of his claims and the
69
See, e.g., Neb. Ct. R. Pldg. § 6-1108(a) (“[i]f the recovery of money be
demanded, the amount of special damages shall be stated but the amount
of general damages shall not be stated . . .”).
70
Brief for appellee at 6.
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damages he seeks, we cannot find that Saylor’s answer to field
No. 9 caused the State any prejudice regarding its ability to
investigate his claims or decide whether to settle them before
litigation commenced. Indeed, the State’s frank admission
during oral argument that it would have sufficed for Saylor to
write any amount in field No. 9, even an “exorbitant” amount
such as “$20 million,” belies its argument that a particular
dollar amount was essential to the proper investigation and
processing of his claims. Although the Risk Manager certainly
has the prerogative to refuse to accept a tort claim form on the
basis that it does not contain all of the information called for,
that is not what happened here.
On this record, we reject the State’s contention that Saylor’s
presuit tort claims were deficient because they did not state
a specific dollar amount being sought as damages and that
therefore, they were not filed “in the manner prescribed by the
State Claims Board” as required by § 81-8,212. We instead
find, as a matter of law, that the content of Saylor’s presuit
tort claims in regard to damages substantially complied with
the presuit notice provisions of § 81-8,212.
Given this disposition, we do not reach Saylor’s argument
that the State waived his failure to comply with § 81-8,212 by
accepting the forms when submitted.
CONCLUSION
Because the content of Saylor’s tort claims substantially
complied with the requirements of § 81-8,212, the district
court erred in granting summary judgment in favor of the
State and dismissing his action. We therefore reverse the judg-
ment in favor of the State and remand the matter for further
proceedings.
Reversed and remanded for
further proceedings.
Heavican, C.J., and Papik and Freudenberg, JJ., not
participating.