Anderson v. City of Hinton

242 S.E.2d 707 (1978)

Elizabeth Jane ANDERSON
v.
CITY OF HINTON, West Virginia, etc.

No. 14063.

Supreme Court of Appeals of West Virginia.

April 7, 1978.

David L. Ziegler, Hinton, for appellant.

No appearance for appellee.

PER CURIAM:

By order entered December 21, 1976, the Circuit Court of Summers County dismissed the plaintiff's personal injury action because the plaintiff had failed to comply with the provisions of W.Va.Code, 8-12-20, requiring that notice of a claim against a municipality be filed within thirty days after a cause of action accrues.

The plaintiff, Elizabeth Jane Anderson, filed this appeal contending, among other points, that W.Va.Code, 8-12-20, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

This Court, before the maturation of this appeal, announced its decision in the consolidated cases of O'Neil and Hendrickson v. City of Parkersburg, W.Va., 237 S.E.2d 504 (1977). Syllabus Point 2 of the O'Neil case states:

"The notice of claim provision provided for in W.Va.Code, 8-12-20, as enacted by the legislature in 1969, is violative of the equal protection and due process clauses of our state and federal constitutions and is unconstitutional."

The O'Neil decision governs the resolution of the issue raised by the plaintiff in this appeal.

The judgment of the Circuit Court of Summers County is, therefore, reversed, and the case is remanded for trial.

Reversed and remanded.