(This article was contributed by Charles F. Alden, a partner in
the law firm of Holloway, Dobson, Hudson, Bachman, Alden, Jennings, Robertson &
Holloway. Mr. Alden has represented OAMIC insureds in legal malpractice
defense for many years).
Perhaps the most frequently encountered professional negligence
claim at OAMIC involves a missed statue of limitations. These kinds of claims
are probably the most easily avoided through proper attention and docketing.
And, once made, they are the most difficult to defend. Of these, one of the most
persistent problems involves the alleged failure to meet one or more of the time
requirements of the Oklahoma Governmental Tort Claims Act, 51 O.S. 1991,
Section, 151-172.
In Vanderpool v. State of Oklahoma, 672
P.2d 1153 (Okla. 1983), the Oklahoma Supreme Court repudiated the common law
doctrine of sovereign immunity for all claims accruing after October 1, 1985.
The Court left the question of whether, and to what extent, sovereign immunity
might be claimed or be waived to the Legislature. The Legislature responded by
enacting what is now known as the Oklahoma Governmental Tort Claims Act. The
purpose of this article is to briefly acquaint you with the notice and time
requirement which must be met in order to prosecute a claim against the State of
Oklahoma or one of its political subdivisions. I Hopefully, you will have a
renewed awareness of these requirements and will be able to avoid the
"pit-falls" which others have encountered.
The primary notice and time requirements of the Governmental Tort
Claims Act may be found at 51 O.S. 1991 Section 156 and 157. Section 156
provides that claims against the State or its political subdivisions must be
presented within one year of the date the loss occurred. A failure to give such
notice within that time forever bars the claim. (5 10. S. 1991 Section 156(B)).
Subsection (E) of Section 156 provides that the time for giving notice does not
include the time during which the claimant is actually unable, due to
incapacitation from his injuries, to give notice. This "grace period", however,
may not exceed 90 days of incapacity.
If the claim is to be made against the State of Oklahoma, written
notice which satisfies the provision of 51 O.S. 1991 Section 156(E) must, be
filed with the Office of the Risk Management Administrator of Purchasing
Division of the Office of Public Affairs. If the claim is against a political
subdivision of the State, it must be filed with the office of the Clerk of the
governing body of such political subdivision.
After a claim is presented, the State and/or political subdivision
is permitted 90 days within which to approve or deny the claim. If the claim is
expressly denied during the 90 day period time, an action for, damages must be
commenced within 180 days thereafter. 51 O.S. 1991 Section 157(B). If, the State
or its political' subdivision simply fails to act on the claim, it is
automatically deemed to have been denied 90 days after it was presented and an
action for damages must be commenced within 180 days of that time.
May an action -which has been timely commenced be safely dismissed
without prejudice? Apparently so. In Cruse v. Board of County
Commissioner of Atokanty, 66 OBAJ 4005, December 23, 1995, the
Oklahoma Supreme Court, in effect, overruled Johns v. Wynnewood
School Board of Education, 656 P.2ct 248 (Okla. 1982). The Court
held, for the first time, that if an action against the State of-Oklahoma and/or
one of its political subdivision has been timely commenced in the first
instance, 12 O.S. 1991 Section 100 operates to allow the refilling there of
within one year of the time the action fails other than on the merits.
In sum, it is very important for a lawyer who intends to represent
a client against the State of Oklahoma to carefully consult the Governmental
Tort Claims Act, in its entirety. There are many requirements contained within
the Act which do not apply in damage claims arising to other Defendants. Many of
these requirements, if not met, can be dispositive of your clients' claim and a
failure to properly consider them may form the basis of a professional
negligence case.
