64 J. Kan. Bar Assn. October, 36 (1995). NOTICE OF CLAIMS EASY TO FOLLOW BUT TIMING IS IMPORTANT.

• Author: Maurice Ryan

Kansas Bar Journals

Volume 64.

64 J. Kan. Bar Assn. October, 36 (1995).

NOTICE OF CLAIMS EASY TO FOLLOW BUT TIMING IS IMPORTANT

Journal of the Kansas Bar AssociationOctober, 1995NOTICE OF CLAIMS -- EASY TO FOLLOW BUT TIMING IS IMPORTANTMaurice RyanKathleen Lynch

Copyright (c) 1995 by the Kansas Bar Association; Maurice Ryan and Kathleen Lynch

Soon after achieving statehood the legislature imposed conditions on submitting claims to governmental agencies. [FN1] Subsequent to its original enactment, [FN2] the notice of claim statute, K.S.A. 12-105, went through several revisions concentrating mainly on the amount of time available to file a claim after a tortious act. [FN3]

In 1979, K.S.A. 12-105 was repealed [FN4] in conjunction with the enactment of the Kansas Tort Claims Act (KTCA). [FN5]

In enacting the KTCA, no specific procedure was delineated for processing claims. In a subsequent Washburn Law Review article, [FN6] its authors raised a question whether cities could establish their own notice of claim ordinances. This possibility was deemed remote because it would exempt cities from provisions of the tort claims act which is prohibited. Further the article questioned whether the notice of claim would withstand constitutional scrutiny. [FN7]

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Subsequent to the enactment of the Tort Claims Act and the repeal of K.S.A. 12-105, some confusion resulted as to whether a notice of claim was a condition precedent to filing a tort claim against a governmental unit. In Quigley v. General Motors, [FN8] Judge Saffels brought an end to the confusion. In this lawsuit brought against the Board of Commissioners of Johnson County and others, the court, after briefly discussing the history of the notice of claim statutes, [FN9] ruled that K.S.A. 12-105b did not require tort victims to give notice of their claims prior to filing suit against a municipality. [FN10] In the session immediately following Quigley, the legislature amended K.S.A. 12-105b to specifically include tort claims against governmental entities. [FN11]

Since enactment of K.S.A. 12-105b(d), the notice of claim provision has withstood challenges to its constitutionality. See Unified School District No. 451 v. Phifer. [FN12]

APPLICABILITY.

K.S.A. 12-105b(d) provides in part, "Any person having a claim against a municipality which could give rise to an action brought under the Kansas Tort Claims Act shall file a written notice as provided in this subsection before commencing such action." K.S.A. 12-105a(a) broadly defines municipality to include counties, townships and cities.

Hubert v. Board of Public Utilities [FN13] involved a personal injury action brought against a city operated power and light plant. The Court held the city was an indispensable party and therefore the plaintiff was required to give the city notice of the claim. [FN14] More recently, the Kansas Court of Appeals held, "Absent express authority conveyed upon it by statute or ordinance, an administrative agency of a city does not have the capacity to sue or be sued without the joinder of the city as a 'contingently necessary' party to the action." Murphy v. City of Topeka. [FN15]

Determining whether a governmental entity has the capacity to be sued is no easy task. In Lindenman v. Umscheid [FN16] the plaintiffs, co-administrators of three day-care centers, filed an action against the Kansas Department of Health and Environment (KDHE); its secretary; the Kansas City, Kansas-Wyandotte County Department of Health (KC-WCDH); its director and one of its employees; the City of Kansas City, Kansas, (City) and Wyandotte County (County) for violation of their civil rights, malicious prosecution, and abuse of process. The district court either dismissed or granted summary judgment to all of the defendants. [FN17] One issue on appeal was whether the KC-WCDH had the capacity to sue or be sued. [FN18] The Lindenmans argued the language of the Kansas Tort Claims Act indicated that a joint board of health has the capacity to be sued. The Court noted "the KTCA states that, 'each governmental entity shall be liable for damages,' [FN19] or in other words, has the capacity to be sued for the negligent wrongful acts of its employees." [FN20] The Court further noted the KTCA defined "government entity" as a state or municipality and defined "municipality" as a county or city and "any agency, authority, institution or instrumentality thereof" pursuant to K.S.A. 1993 Supp. 75-6102(b). [FN21] The Court concluded that the language in the KTCA did not prove legislative intent to bestow upon all local government agencies the capacity to sue or be sued, and upheld the district court's ruling that KC-WCDH lacked the capacity to sue or be sued. Because the statute broadly defines municipality, the safer course of action in a personal injury suit in which a city may be named as a defendant, is to file a notice of claim.

On February 24, 1995, the Kansas Court of Appeals in the case King v. Pimentel [FN22] corrected a problem faced by both plaintiffs and defendants when suit was brought based upon the negligent actions of a city employee acting within the scope of employment. Prior to King, the courts had declined to require notice where a municipal employee was being sued. In Bradford v. Mahan, [FN23] the court allowed the plaintiff to bring suit against a police officer for libelous statements made in a police accident report, even though no notice of claim had been filed with the city. However, in Murphy v. City of Topeka, [FN24] the plaintiff brought suit against the Department of Labor Services, an administrative agency

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of the City of Topeka, and three of its employees for retaliatory discharge. [FN25] The plaintiff failed to give notice as required by K.S.A. 12-105 to the City of Topeka. Therefore, the district court could not order the City of Topeka to be made a party and dismissed the action against the Department of Labor Services. [FN26] The Court of Appeals upheld the dismissal. [FN27]

In King, the court conceded that a strict interpretation of K.S.A. 12-105b(d) supported the trial court's conclusion that the notice of claim requirement applies only to claims against a municipality and not to municipal employees. The court also pointed out that the statute is silent with regard to claims which could give rise to an action against municipal employees under the Kansas Tort Claims Act. [FN28] The court went onto explain that the statutory language permitted a broader interpretation and that K.S.A. 12-105b(d) applies to both claims against a municipality and to claims against municipal employees acting within the scope of their employment. [FN29] In justifying this interpretation, the court found that the law with regard to municipal liability had changed significantly since the Bradford decision and that under the KTCA a governmental...