Doe Ex rel.Doe v. Independent School District No. I-89

HODGES, Justice.

A negligence action was brought against Independent School District No. 1-89; Board of Education of Independent School District No. 1-89; Floyd Donwerth, Betty Hill, Gene Brody, Hugh Long, Susan Hermes, Shirley Darrell, and Delbert Hamm, as Members of the Board; and Jose Rideout (appellees) under the Political Subdivision Tort Claims Act (Act).¹ The trial court granted appellees’ motion for summary judgment, ruling that the six month statute of limitations had expired before the suit was filed. Two issues are presented for our consideration. First, whether the trial court erred in interpreting the applicable statute of limitations under the Act. Secondly, whether summary judgment was improper because appellees were equitably estopped from asserting the statute of limitations’ defense. We answer both questions in the negative and affirm the judgment of the trial court.

On April 3, 1981, Jose Rideout, a bus driver for appellee school district, abducted Sally Doe (a fourteen year old retarded female) and forced her to have sexual intercourse. Rideout was convicted and sentenced for the crime. Jane Doe, the natural mother of Sally (appellant), brought this action after it was revealed that Rideout had prior convictions for sexual crimes.

Appellant sent notice of the claim to the school board on July 17, 1981. Thereafter, all correspondence on the claim was between appellant’s attorney and an investigator from the school board’s insurance company. The investigator informed the attorney that he could not settle the claim until he completed his report of the incident. On November 24, 1981, the attorney sent a letter indicating that he would file the suit unless the claim was successfully resolved. The investigator again urged her to wait until the report was complete. On December 3,1981, appellant’s attorney telephoned the investigator who then informed him the claim was denied. On December 11, 1981, a letter was received by appellant’s attorney confirming that conversation. The lawsuit was not filed until June 3, 1982.

Appellant first claims that her action was not time barred by the applicable statute of limitations. She contends that the trial court erred in interpreting 51 O.S.1981 §§ 156 and 157.² Section 156(C) provided in pertinent 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 the political subdivision.” (Emphasis supplied).

Section 157 provided:

“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 entirely 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 an employee whose conduct gave rise to the claim unless the claim has been denied in whole or in part.” (Emphasis supplied).

In our recent opinion in Trent v. The Board of County Commissioners of Johnston County, 755 P.2d 615 (Okla.1988), we observed the apparent purpose of the 90 day period for a political subdivision to either approve or deny a claim is for the benefit of plaintiff and to prevent a political subdivision from needlessly delaying the filing of a claim beyond 90 days. In affirming the district court, we ruled § 157 provided for an automatic denial of a claim after 90 days if it had not been denied, approved or settled at an earlier date. Furthermore, we distinguished Whitley v. Ool-ogah S.D. 1-4 of Rogers Cty, 741 P.2d 455 (Okla.1987), wherein a political subdivision continued to promise to settle the remainder of a claim up, until such time as the suit was filed, which was well after the six month time limit. In Trent, we noted there was not a partial settlement or approval of the claim nor was there a promise to settle.

In the present case, appellant contends she considered the claim settled inasmuch as the investigator constantly maintained that there was no need to file the lawsuit because the claim would be settled when the investigation was complete. Furthermore, she contends that the statute of limitations was tolled for 60 days by the appel-lees’ request for additional information.

From the record it is apparent there was not a settlement of appellant’s claim. Appellant relies on the fact that the investigator urged her not to file her claim until his report was finished. We cannot accept appellant’s position. Appellees never undertook negotiations with appellant nor did they ever admit liability for the claim, they simply were investigating the incident. Had appellant seriously considered the claim settled, she would not have sent a letter on November 24, 1981, indicating she would file the suit within the next week unless the claim was successfully resolved. Moreover, on December 11, 1981, she received a letter unequivocally denying her claim and she still had over four months to file the suit.

Appellant relies on § 156(C) to substantiate her argument that the statute of limitations was tolled 60 days when appellees requested additional information. Section 156(C) provided in pertinent part:

“Failure to state either the time, place, circumstances and amount of compensation demanded shall not invalidate the notice unless the claimant declines or refuses to furnish such information within ninety (90) days after demand by the political subdivision.”

Appellant erroneously construes this statute to provide for a tolling of the statute of limitations. Section 156(C) only concerns the adequacy of the notice given the political subdivision. Trent, 755 P.2d at 615. It is undisputed that appellant complied with the notice provisions of this section.

We find no merit in appellant’s argument that appellees’ request for additional information somehow extended the statute of limitations 60 days. Therefore, we would affirm the district court’s holding that appellant failed to comply with the statute of limitations. Appellant’s action was time barred on April 15, 1982, six months after the claim was denied by operation of law under § 157.

Next, appellant attacks the trial court’s grant of summary judgment. She contends there still existed a substantial controversy of fact as to the issue of equitable estoppel. Appellant maintains reasonable persons might differ as to the conclusions to be drawn from the undisputed facts. Her argument again stems from her allegation the investigator of the claim urged her to wait until he finished his report. In short, she claims appellees are estopped from asserting a § 156(C) time bar because they induced appellant’s attorney to delay in filing her lawsuit.

In Jarvis v. City of Stillwater, 732 P.2d 470, 472-73 (Okla.1987), we stated:

“A fact question as to whether a defendant is estopped from interposing the defense of a time bar is generally raised by a plaintiffs allegations that the defendant had made (a) some assurance of settlement negotiations reasonably calculated to lull the plaintiff into a sense of security and delay action beyond the statutory period, or (b) by an express and repeated admission of liability in conjunction with promises of payment, settlement or performance, or (c) any false, fraudulent or misleading conduct or some affirmative act of concealment to exclude suspicion and preclude inquiry, which induces one to refrain from timely bringing an action.” (Footnotes omitted).

The Jarvis case is factually similar and controls the disposition of the present case. Jarvis relied on a letter sent by the city requesting additional information and also mentioning an investigation, the results of which would be made available to Jarvis. Jarvis argued the letter led him to believe further correspondence from the city would be forthcoming, and this reliance induced him to delay in filing his action. We held Jarvis had failed to make out a case for estoppel because the letter did not fall into any of the three variations that would support an equitable estoppel argument. Furthermore, we stated the Political Subdivision Tort Claims Act narrowly structures the method for bringing a tort claim against a municipality.

Upon reviewing the record in the instant case we find there is no evidence that would support an estoppel argument. In order to invoke the doctrine of equitable estoppel there must be some assurance of settlement negotiations reasonably calculated to lull a plaintiff into a sense of security and delay action beyond the statutory period. Jarvis, 732 P.2d at 472. Appellees never admitted liability for the claim or undertook negotiations to settle it. In addition, the record does not reflect any false, fraudulent or misleading conduct on the part of appellees. Any reliance on the part of appellant was unequivocally denounced when appellee sent a letter rejecting the claim. Appellant still had over four months to file her claim. We cannot hold appellees’ actions were the cause of appellant’s delay in the filing of her action beyond the statutory period.

We find the district court correctly granted summary judgment. In sum, we find appellant failed to allege facts sufficient to invoke the doctrine of equitable estoppel and also failed to file her action before the statute of limitations expired.

The district court’s judgment for appel-lees is affirmed.

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

1 . 51 O.S.1981 § 151 et seq., now retitled The Governmental Tort Claims Act, 51 O.S.Supp. 1987 §§ 151-171.

2 . Section 157 was recently amended to provide:

A. 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 interested parties have reached a settlement before the expiration of that period. 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. The claimant and the state may continue attempts to settle a claim, however, settlement negotiations do not extend the date of denial.

1988 Okla.Sess.Laws 1087 (emphasis indicates addition).