Shrontz v. UDOT

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Duane Shrontz,
Plaintiff and Appellant,

v.

Utah Department of Transportation,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991016-CA

F I L E D
November 16, 2000 2000 UT App 317 -----

Third District, Salt Lake Department
The Honorable Frank G. Noel

Attorneys:
Bryan W. Cannon, Sandy, and John R. Riley, Salt Lake City, for Appellant
Jan Graham and Brent A. Burnett, Salt Lake City, for Appellee

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Before Judges Davis, Orme, and Thorne.

THORNE, Judge:

Plaintiff Duane Shrontz appeals from the trial court's order dismissing his complaint with prejudice for failure to file a notice of claim with the Utah Attorney General as required by Utah Code Ann. § 63-30-12 (1999) (the Act).(1) Whether Shrontz complied with the notice provision "is a legal conclusion which we review for correctness, according no particular deference to the trial court." Brittain v. State, 882 P.2d 666, 668 (Utah Ct. App. 1994).

"The doctrine of sovereign . . . immunity--requiring the consent of the State in order to subject it to suit in its own courts--is a deeply rooted and well recognized doctrine of American common law." Id. at 668-69. "The Act . . . codified [this] common law principle." Id. at 669. In pertinent part, the Act establishes the requirement that "[a]ny person having a claim for injury against a governmental entity . . . shall file a written notice of claim with the entity before maintaining an action." Utah Code Ann. § 63-30-11(2) (Supp. 2000) (emphasis added). "The notice of claim shall be . . . directed and delivered to . . . the attorney general, when the claim is against the State of Utah." Utah Code Ann. § 63-30-11(3)(b)(ii)(e) (Supp. 2000).

In the instant case, Shrontz served his complaint upon the Attorney General's office on December 11, 1998, approximately eleven months after his claim arose. However, he failed to file the required notice with the Attorney General, and our case law makes clear that "'an action against the State is barred if the required notice is not filed.'" Lamarr v. Utah Dep't. of Transp., 828 P.2d 535, 541 (Utah Ct. App. 1992) (quoting Madsen v. Borthick, 769 P.2d 245, 249 (Utah 1988)). "[T]he Utah Supreme Court has repeatedly held that strict compliance with the notice of claim provision is essential to maintain a suit pursuant to the Governmental Immunity Act." Kabwasa v. University of Utah, 785 F. Supp. 1445, 1446-47 (D. Utah 1990).

Shrontz invites this court to broaden our traditional view of the notice provision, arguing that the service of his complaint on the Attorney General provides the Attorney General notice of his claim and, for support, he cites Johnson v. Utah State Retirement Office, 621 P.2d 1234 (Utah 1980). However, Shrontz's reliance on Johnson is misplaced as Johnson is clearly distinguishable from the instant case. In Johnson, the plaintiffs filed a notice of claim with the Attorney General on the same day that they filed the complaint. See id. at 1236. Less than one year later, plaintiffs filed an amended complaint which "indicated plaintiffs' compliance with the [Act]." Id. In examining whether the trial court erred in dismissing the complaint for failure to strictly comply with the Act's notice requirement, the supreme court held that "plaintiffs action [was] not barred . . . ,[p]laintiffs' complied with the requirements of the [A]ct." Id.

Here, Shrontz simply served his complaint upon the Attorney General without providing any prior notice of claim. He then filed his complaint. If this court were to adopt plaintiff's interpretation of the notice requirement, we would effectively render the notice provision superfluous. See State v. Hunt, 906 P.2d 311, 312 (Utah 1995) (holding we avoid interpretations which render parts or words in a statute superfluous).

Accordingly, we decline to adopt plaintiff's argument that serving a complaint upon the State prior to filing satisfies the Act's notice requirement. We affirm the decision of the trial court.
 
 
 
 

______________________________
William A. Thorne, Jr., Judge -----

WE CONCUR:
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

_____________________________
Gregory K. Orme, Judge

1. Shrontz also appeals the trial court's dismissal of his complaint without prejudice for failure to file an undertaking as required by Utah Code Ann. § 63-30-19 (1997). Because we affirm the trial court's dismissal with prejudice, we do not reach this issue.