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DUNCAN v. CITY OF STROUD2015 OK CIV APP 28346 P.3d 446Case Number: 112172Decided: 03/06/2015Mandate Issued: 03/31/2015DIVISION IICOURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION II
Cite as: 2015 OK CIV APP 28, 346 P.3d 446

DONALD W. DUNCAN, Plaintiff/Appellant,v.CITY OF STROUD, 
Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OFLINCOLN COUNTY, 
OKLAHOMA
HONORABLE CINDY FERRELL ASHWOOD, TRIAL JUDGE

REVERSED

A. Laurie Koller, Patrick E. Carr, Michael E. Carr, Guy A. Thiessen, Raymond 
S. Allred, CARR & CARR ATTORNEYS, Tulsa, Oklahoma, for 
Plaintiff/AppellantDavid W. Kirk, Robert Ray Jones, Jr., LYTLE SOULÉ & 
CURLEE, Oklahoma City, Oklahoma, for Defendant/Appellee


JOHN F. FISCHER, PRESIDING JUDGE:
¶1 Donald W. Duncan appeals the dismissal with prejudice of his petition 
alleging a tort claim against the City of Stroud. The appeal has been assigned 
to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. 
Supp. 2013, ch. 15, app. 1, and the matter stands submitted without appellate 
briefing. In the district court, the City argued that Duncan failed to file this 
suit within the applicable limitations period required by the Governmental Tort 
Claims Act, 51 O.S.2011 §§ 151-172 (GTCA), and therefore, his claim was 
barred.1 The 
City's argument is predicated on its interpretation of a letter received from 
Duncan's counsel at the beginning of this litigation. Because that letter does 
not constitute the notice required to start the limitations period for Duncan's 
tort claim, we reverse.2
BACKGROUND
¶2 Duncan was injured in an automobile accident that he contends was caused 
by the negligence of a City employee who was acting within the scope of his 
employment and driving a vehicle owned by the City at the time of the accident. 
Duncan seeks to recover for the damages he alleges he incurred as a result of 
the accident. Prior to the filing of this suit, Duncan's legal counsel sent a 
letter to an insurance agency identified as the insurer of the City vehicle. The 
City contends that this letter started the limitations period. The City moved to 
dismiss Duncan's petition arguing that it had been filed outside the time 
permitted after counsel's letter. The district court granted the City's motion 
and dismissed Duncan's petition with prejudice.
STANDARD OF REVIEW
¶3 The City's motion to dismiss was premised on 12 O.S.2011 § 2012(B)(1), and argued 
that the district court lacked subject matter jurisdiction because Duncan's 
petition was filed after the applicable limitations period had run. "A pleading 
must not be dismissed for failure to state a legally cognizable claim unless the 
allegations indicate beyond any doubt that the litigant can prove no set of 
facts which would entitle the plaintiff to relief." Tuffy's, Inc. v. City of 
Oklahoma City, 2009 OK 4, ¶ 
6, 212 P.3d 1158, 1162. 
Appellate courts review an order dismissing a petition de novo "considering the 
legal sufficiency of the petition and taking all allegations in the plaintiff's 
petition as true." Gens v. Casady Sch., 2008 OK 5, ¶ 8, 177 P.3d 565, 569.
ANALYSIS
¶4 Duncan's claim against the City is governed by the GTCA. Section 153(A) of 
the GTCA provides:


The state or a political subdivision shall be liable for loss resulting 
    from its torts or the torts of its employees acting within the scope of 
    their employment subject to the limitations and exceptions specified in The 
    Governmental Tort Claims Act and only where the state or political 
    subdivision, if a private person or entity, would be liable for money 
    damages under the laws of this state.
51 O.S.2011 § 153(A). Within 
one year of the accident, Duncan was required to "present" his claim to the 
City. 51 O.S.2011 §§ 156(A) and 
156(B). The manner in which that claim must be presented is also set out in 
section 156 of the Act.


D. A claim against a political subdivision shall be in writing and filed 
    with the office of the clerk of the governing body.
E. The written notice of claim to the state or a political subdivision 
    shall state the date, time, place and circumstances of the claim, the 
    identity of the state agency or agencies involved, the amount of 
    compensation or other relief demanded, the name, address and telephone 
    number of the claimant, the name, address and telephone number of any agent 
    authorized to settle the claim . . . . Failure to state either the date, 
    time, place and circumstances and amount of compensation demanded . . . 
    shall not invalidate the notice unless the claimant declines or refuses to 
    furnish such information after demand by the state or political 
    subdivision.
¶5 However, Duncan was prohibited from filing this suit until the City denied 
his claim. "No action for any cause arising under [the GTCA] 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 this 
section." 51 O.S.2011 § 157(B). 
"A claim is deemed denied if the state or political subdivision fails to approve 
the claim in its entirety within ninety (90) days." 51 O.S.2011 § 157(A). "Compliance 
with the written notice of claim and denial of claim provisions in §§ 156 and 
157 [of the GTCA] are prerequisites to the state's consent to be sued and to the 
exercise of judicial power to remedy the alleged tortious wrong by the 
government." Shanbour v. Hollingsworth, 1996 OK 67, ¶ 7, 918 P.2d 73, 75.
¶6 The accident in which Duncan was injured occurred on March 23, 2012. On 
April 6, 2012, Duncan's legal counsel sent a letter on the law firm's letterhead 
to Hinson Insurance Agency. According to the Traffic Collision Report prepared 
by the City's police officer who investigated the accident, Hinson was 
identified as the insurance company for the City vehicle involved in the 
accident. The "regarding" section of counsel's April 6 letter lists Duncan's 
name, the City, the City employee's name and the date of accident. The letter 
states:


The firm of Carr & Carr Attorneys has been retained by Donnie Wayne 
    Duncan for representation concerning the matter described above.
Each and every authorization in which our client may have permitted the 
    release of medical records, employment records or other information which 
    customarily requires an authorization is hereby revoked. Please do not 
    request such records or information without a proper release obtained 
    through our firm after the date of this letter.
Pursuant to Okla. Stat. Tit. 12, §3226(B)(1), insurance agreements that 
    will satisfy part or all of a judgment are discoverable. Please send us a 
    copy of this policy and a statement of each coverage and limits thereof, as 
    well as copies of each oral or written statement you have obtained from our 
    client and copies of photographs of the vehicles involved in this loss.
Carr & Carr, Attorneys at Law, is claiming an attorney lien on the 
    proceeds of any settlement.
¶7 On April 12, 2012, Duncan's counsel received a letter from a senior claims 
examiner for Oklahoma Municipal Assurance Group (OMAG) acknowledging receipt of 
Duncan's April 6, 2012, "claim." That letter states that the claims examiner 
"will be directing the handling of this matter and will be in touch in the near 
future." The letter includes a "cc: City of Stroud." There is no indication in 
this record that Duncan's counsel was thereafter contacted by the OMAG's senior 
claims manager or any other OMAG officer, agent or employee.3
¶8 In a certified letter dated February 20, 2013, Duncan's counsel mailed a 
Notice of Claim to the Stroud City Clerk.4 The February Notice of Claim provides all of the 
information required by Title 51 
O.S.2011 § 156(E), including a demand for $250,000 to compensate Duncan for 
his damages resulting from the accident. In addition, the February Notice of 
Claim was mailed to the City Clerk as required by 51 O.S.2011 § 156(D). Although the 
City now contends that Duncan's time to pursue his claim expired in January of 
2013, there is no response to Duncan's February 2013 Notice of Claim in this 
record or any other correspondence from the City to Duncan or his counsel. If 
effective, Duncan's February Notice of Claim would have been "deemed denied" 
ninety days thereafter, or on May 20, 2013. 51 O.S.2011 § 157(A). Duncan filed 
this suit on June 3, 2013, within the one hundred and eighty days after May 20, 
2013, required by section 157(B) of the GTCA.
¶9 Nonetheless, the City moved to dismiss Duncan's suit arguing that 
counsel's April 6 letter constituted the notice required by section 156 of the 
GTCA. According to the City, Duncan's claim was deemed denied ninety days after 
April 6, 2012, or on July 5, 2012. The City concludes that Duncan's suit filed 
June 3, 2013, is barred by the applicable limitations period because it was 
filed more than one hundred and eighty days after July 5, 2012, as required by 
section 157(B) of the GTCA. If the April 6 letter constituted the statutorily 
required notice of Duncan's claim, the City is correct and Duncan's claim is 
barred. See Hall v. The Geo Group, Inc., 2014 OK 22, ¶ 13, 324 P.3d 399, 404 (compliance with 
the notice provisions of the GTCA is jurisdictional). However, we find the 
City's position untenable.
¶10 Even though the April 6 letter does not contain the information required 
by section 156(E) and was not filed with the City Clerk as required by section 
156(D), the City argues that the April 6 letter is sufficient notice of Duncan's 
claim because it substantially complies with the notice requirements of the 
GTCA. The City relies on two decisions from this Court to support this argument. 
The City's cases were either decided before or relied on cases decided before 
Minie v. Hudson, 1997 OK 
26, 934 P.2d 1082. In that 
case, the claimant relied on the line of cases which had consistently held that 
substantial compliance with the notice provisions of the GTCA was sufficient 
when the governmental entity was not prejudiced, and the information provided 
satisfied the purposes of the statutory notice provisions of the Act. The Court 
noted, however, that the notice section of the Act, section 156, had been 
amended effective October 1, 1985. The amendment added a provision requiring 
that: "A claim against a political subdivision shall be in writing and filed 
with the office of the clerk of the governing body." Id. ¶ 7, 934 P.3d at 
1086. As a result, the Court held "only a written claim is sufficient to invoke 
the protections of the Governmental Tort Claims Act." Id. ¶ 8, 934 P.2d 
at 1086.
¶11 Minie does not speak directly to the requirement for filing a 
claim with the clerk of the governing body. However, the Court did find that the 
claimant's verbal notice of his claim to the city manager and his written notice 
filed with the county clerk did not constitute valid notice of his claim against 
the city. We agree with this Court's holding in Smith v. White Oak Sch. 
Dist., No. 105,108, 2008 WL 9824868, at *3 (Okla. Ct. App. June 20, 2008), 
that Minie abrogated the doctrine of substantial compliance. As recently 
noted by the Supreme Court: "The limitations of the Tort Claims Act are narrowly 
structured, and a grant of substantial compliance under the general procedural 
regime is not allowed." Slawson v. Board of County Comm'rs of Logan 
Cnty., 2012 OK 87, ¶ 6, 288 P.3d 533, 534 (citing 
Carswell v. Oklahoma State Univ., 1999 OK 102, ¶ 7, 995 P.2d 1118, 1121).
¶12 Notice is the "cornerstone" of the GTCA. McWilliams v. Board of Cnty. 
Comm'rs of Cnty. Of Comanche, 2011 OK 103, ¶ 24, 268 P.3d 79, 85. The City's 
argument that the April 6 letter constitutes sufficient notice of Duncan's tort 
claim fails for three reasons.
¶13 First, of the information required by section 156(E), the April 6 letter 
includes only Duncan's name, the date of the accident, the name of the City 
employee involved in the accident, and the name, address, and telephone number 
of the agent authorized to settle Duncan's claim. It does not include Duncan's 
address and telephone number, the time, place or circumstances of the accident, 
the amount of compensation Duncan sought, and it was not filed with the City's 
Clerk. Citing section 156(E), the City argues that failure to include "the date, 
time, place and circumstances and amount of compensation demanded . . . shall 
not invalidate the notice unless the claimant declines or refuses to furnish 
such information after demand by the state or political subdivision." The plain 
meaning of this language is to provide a mechanism to cure an otherwise 
statutorily defective notice. "[N]o further construction is required or 
permitted." Hathaway v. State ex rel. Med. Research & Technical 
Auth., 2002 OK 53, n.13, 49 P.3d 740, 743 n.13. However, the 
City "did not exercise its prerogative under [section 156(E)] to obtain further 
information from the appellant." Reirdon v. Wilburton Bd. Of Educ., 1980 OK 67, ¶ 5, 611 P.2d 239, 241 (superseded by 
statute). Consequently, the April 6 letter remained statutorily deficient as 
notice of Duncan's tort claim.
¶14 Second, the April 6 letter does not meet the statutory definition of a 
"claim" for purposes of the GTCA. A claim is defined as:


[A]ny written demand presented by a claimant or the claimant's 
    authorized representative in accordance with this act to recover 
    money from the state or political subdivision as compensation for an act 
    or omission of a political subdivision or the state or an 
  employee.
51 O.S.2011 § 152(4) 
(emphasis added). The only "demand" in the April 6 letter is for a copy of the 
City's insurance policy. "The GTCA precludes any tort action against a political 
subdivision unless the plaintiff has provided notice and given the political 
subdivision the opportunity to accept or deny the claim." McWilliams,
2011 OK 103, ¶ 24, 268 P.3d 
at 85. Unless the amount of a claimant's demand is known, it is impossible for 
the government to decide whether to pay or deny the claim. Duncan's only demand 
for money is contained in his February Notice of Claim.
¶15 Third, the April 6 letter was not filed by Duncan's counsel with the 
City's Clerk as required by section 156(D) of the GTCA: "A claim against a 
political subdivision shall be in writing and filed with the office of the clerk 
of the governing body." "The use of 'shall' by the Legislature is normally 
considered as a legislative mandate equivalent to the term 'must', requiring 
interpretation as a command." Minie, 1997 OK 26, ¶ 8, 934 P.2d at 1086. 
The City's argument that the April 6 letter constituted notice of Duncan's tort 
claim is unpersuasive.
¶16 We are not dealing in this case with an attempt by a governmental tort 
claimant to avoid the GTCA limitations periods by filing a second notice of 
claim. Cf., Kennedy v. City of Talihina, 2011 OK CIV APP 108, 265 P.3d 757; Grider v. Indep. 
Sch. Dist. No. 89, 1994 OK CIV 
APP 34, 872 P.2d 951. Here we 
deal with an attempt by the City to cut off an otherwise GTCA compliant claim 
through a strained interpretation of a letter from Duncan's counsel to what 
appears to be an insurance agency representing the City. There is no evidence in 
this record proving that the City is insured for this loss by OMAG, that OMAG 
was authorized to receive notice of tort claims against the City or that OMAG 
transmitted the April 6 letter to the City's Clerk. To the extent that OMAG is 
the City's insurance company, we cannot permit the senior claims manager's 
promise "to be in touch in the near future" to "lull" Duncan, whether 
intentionally or unintentionally, "into a false sense of security concerning the 
applicable denial date under [section] 157 and then rely on the induced delay as 
a defense to an action." Carswell v. Oklahoma State Univ., 1999 OK 102, ¶ 13, 995 P.2d 1118, 1122.
¶17 Finally, the rule of interpretation proposed by the City would put 
claimants at risk anytime they communicated with a governmental entity prior to 
filing a formal notice of claim fully compliant with the requirements of section 
156. The GTCA "should not be given a construction which will defeat the ends of 
justice." Reirdon, 1980 OK 
67, ¶ 6, 611 P.2d at 241. Discouraging early communication between a tort 
claimant and the government would defeat the ends of justice and frustrate the 
purpose of the GTCA.


The purposes of the notice requirement are to further legitimate 
    interests by promoting prompt investigation; by providing the opportunity to 
    repair any dangerous condition and for speedy and amicable settlement of 
    meritorious claims; and to allow the opportunity to prepare to meet possible 
    fiscal liabilities.5
Conway v. Ohio Cas. Ins. Co., 1983 OK 83, ¶ 7, 669 P.2d 766, 767 (superseded by 
statute). Accord McWilliams, 2011 OK 103, ¶ 24, 268 P.3d at 85. 
The City's proposed rule of interpretation is a rule we are unwilling to adopt 
and a rule we find inconsistent with Minie v. Hudson.
CONCLUSION
¶18 The evidence submitted in support of the City's motion to dismiss is 
insufficient to contradict the allegation in Duncan's petition that on February 
23, 2013, he "gave timely and proper notice of his claim to the City of Stroud 
pursuant to Okla. Stat. Tit. 51, §156 and within the one (1) year set forth 
therein." Taking this allegation in Duncan's petition "as true," we find that 
the district court erred in granting the City's motion to dismiss. Gens v. 
Casady Sch., 2008 OK 
5, ¶ 8, 177 P.3d 565, 596. 
The order appealed is reversed.

¶19 REVERSED.

GOODMAN, V.C.J., and WISEMAN, J., concur.

FOOTNOTES

1 
Although some provisions of the GTCA have been amended since 2011, those 
amendments were not effective until after Duncan's injury. Further, those 
amendments did not affect the material provisions of the GTCA relevant to this 
litigation. Therefore, we will cite to the 2011 version of the GTCA.

2 
Duncan's Motion for Leave to Submit Appellate Brief is denied.

3 In 
other litigation, OMAG has provided a form for GTCA claimants to fill out and 
submit regarding claims against its insureds. See, e.g., 
Kennedy v. City of Talihina, 2011 OK CIV APP 108, 265 P.3d 757. There is no evidence 
in this record that OMAG provided any such form to Duncan or his 
counsel.

4 The 
February Notice of Claim appears to have been mailed on February 19, 2013, and, 
according to the return receipt, received by the City Clerk the following 
day.

5 
According to the investigating officer's report, the accident occurred because 
the city vehicle "disobeyed the traffic sign" at an intersection striking 
Duncan's vehicle while Duncan had the right of way.


Citationizer© Summary of Documents Citing This Document


Cite
Name
Level


None Found.


Citationizer: Table of Authority


Cite
Name
Level


Oklahoma Court of Civil Appeals Cases
 CiteNameLevel
 1994 OK CIV APP 34, 872 P.2d 951, 65 OBJ        1432, Grider By and Through Grider v. Independent School Dist. No. 89Discussed
 2011 OK CIV APP 108, 265 P.3d 757, KENNEDY v. CITY OF TALIHINADiscussed at Length
Oklahoma Supreme Court Cases
 CiteNameLevel
 1997 OK 26, 934 P.2d 1082, 68 OBJ        909, Minie v. HudsonDiscussed at Length
 2002 OK 53, 49 P.3d 740, HATHAWAY v. STATE EX. REL. MEDICAL RESEARCH & TECHNICAL AUTHORITYDiscussed
 1996 OK 67, 918 P.2d 73, 67 OBJ        1844, Shanbour v. HollingsworthDiscussed
 2008 OK 5, 177 P.3d 565, GENS v. CASADY SCHOOLDiscussed at Length
 2009 OK 4, 212 P.3d 1158, TUFFY'S, INC. v. CITY OF OKLAHOMA CITYDiscussed
 2011 OK 103, 268 P.3d 79, MCWILLIAMS v. BOARD OF COUNTY COMMISSIONERS OF COUNTY OF COMANCHEDiscussed at Length
 2012 OK 87, 288 P.3d 533, SLAWSON v. BOARD OF COUNTY COMMISSIONERSDiscussed
 2014 OK 22, 324 P.3d 399, HALL v. THE GEO GROUP, INCDiscussed
 1980 OK 67, 611 P.2d 239, Reirdon v. Wilburton Bd. of Ed.Discussed at Length
 1999 OK 102, 995 P.2d 1118, 71 OBJ        17, Carswell v. Oklahoma State UniversityDiscussed at Length
 1983 OK 83, 669 P.2d 766, Conway v. Ohio Cas. Ins. Co.Discussed
Title 12. Civil Procedure
 CiteNameLevel
 12 O.S. 2012, Defenses and Objections - When and How Presented - By Pleading or MotionCited
Title 51. Officers
 CiteNameLevel
 51 O.S. 156, Claims - Petition - Limitation of Actions - Notice - Wrongful DeathDiscussed at Length
 51 O.S. 152, DefinitionsCited
 51 O.S. 153, Liability - Scope - ExemptionCited
 51 O.S. 157, Notice of Approval or Denial of ClaimDiscussed at Length













