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Komar v. State

Supreme Court of Nebraska

March 16, 2018

Stacey L. Komar, appellant,
v.
State of Nebraska et al., appellees.

          1. Motions to Dismiss: Pleadings: Appeal and Error. A district court's grant of a motion to dismiss on the pleadings is reviewed de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

         2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

         3. Tort Claims Act: Limitations of Actions. Before suit can be filed under the State Tort Claims Act, a claimant must submit the claim in writing to the Risk Manager within 2 years after the claim accrued.

         4. __:__. Generally speaking, a claimant cannot file suit under the State Tort Claims Act until the Risk Manager or State Claims Board makes a final disposition of the claim. However, if the board has not made final disposition of a claim after 6 months, the claimant is permitted to withdraw the claim and file suit.

         5. __:__. The 2-year limitations period referenced in Neb. Rev. Stat. § 81-8, 227(1) (Reissue 2014) governs not just the time for submitting claims to the Risk Manager, but also the time for beginning suit under the State Tort Claims Act.

         6. Tort Claims Act: Limitations of Actions: Notice. Under Neb. Rev. Stat. § 81-8, 227(1) (Reissue 2014), the time to begin suit under the State Tort Claims Act shall be extended for a period of 6 months from the date of mailing of notice to the claimant by the Risk Manager or State Claims Board as to the final disposition of the claim or from the date of withdrawal of the claim under Neb. Rev. Stat. § 81-8, 213 (Reissue 2014) if the time to begin suit would otherwise expire before the end of such period.

          [299 Neb. 302] 7. __:__: __. Claimants who allow the State Claims Board to reach a decision must file suit on the claim within 2 years after the claim accrued, or within 6 months after the board mails notice of final disposition, whichever occurs later. On the other hand, claimants who withdraw their claim must file suit on the claim within 2 years after the claim accrued, or within 6 months after the first date on which the claim could have been withdrawn, whichever occurs later.

         Petition for further review from the Court of Appeals. Pirtle, Bishop, and Arterburn, Judges, on appeal thereto from the District Court for Douglas County, W. Russell Bowie III, Judge. Judgment of Court of Appeals affirmed.

          Denise E. Frost, of Johnson & Mock, PC, L.L.O., for appellant.

          Brien M. Welch and John A. McWilliams, of Cassem, Tierney, Adams, Gotch & Douglas, for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Stacy, J.

         This case involves a dispute over the calculation of the 2-year statute of limitations under the State Tort Claims Act (STCA).[1] The district court for Douglas County dismissed the action as time barred, and the Nebraska Court of Appeals affirmed.[2] On further review, we agree the claim is time barred and affirm the dismissal.

         BACKGROUND

         According to the allegations of the complaint, on January 15, 2013, Stacey L. Komar learned that an employee of the State of Nebraska had accessed her electronically stored medical records without her permission. Approximately 17 months [299 Neb. 303] later, on June 27, 2014, Komar presented a tort claim to the Risk Manager for the State Claims Board alleging the employee had invaded her privacy by accessing her medical records without permission. Under the STCA, Komar had to present her claim to the Risk Manager as a prerequisite to bringing suit.[3]

         Komar's claim remained pending before the State Claims Board for more than 1 year without final disposition. On July 14, 2015, she withdrew the claim. The next day, Komar filed a complaint in the Buffalo County District Court, alleging invasion of privacy and naming as defendants the State of Nebraska, the Board of Regents of the University of Nebraska, and Nebraska Medicine (collectively the State).

         District Court Action

         The State moved to dismiss Komar's complaint, arguing it was barred by the STCA statute of limitations set out in § 81-8, 227(1). That statute provides:

[E]very tort claim permitted under the [STCA] shall be forever barred unless within two years after such claim accrued the claim is made in writing to the Risk Manager in the manner provided by such act. The time to begin suit under such act shall be extended for a period of six months from the date of mailing of notice to the claimant by the Risk Manager or State Claims Board as to the final disposition of the claim or from the date of withdrawal of the claim under section 81-8, 213 if the time to begin suit would otherwise expire before the end of such period.

         This court has held that the 2-year limitations period referenced in § 81-8, 227(1) governs not just the time for submitting claims to the Risk Manager, but also the time for beginning suit.[4]

         [299 Neb. 304] In analyzing the timeliness of Komar's complaint, the district court found her claim accrued on January 15, 2013-the date she learned of the alleged invasion of privacy. It reasoned that under § 81-8, 227(1), Komar had until January 15, 2015, to file her complaint, unless the 6-month extension applied. No party has disputed either the accrual date or this preliminary calculation of the applicable limitations period.

         Komar claimed she was entitled to the 6-month extension under § 81-8, 227(1) and argued the extension began to run on the date she actually withdrew her claim, so her complaint filed the next day would be timely. The State argued that under this court's holdings in Coleman v. Chadron State College[5] and Hullinger v. Board of Regents, [6] the 6-month extension began to run on the first day Komar could have withdrawn her claim, not on the date she actually withdrew it.

         In both Coleman and Hullinger, this court held:

"[A] claimant who files a tort claim with the Risk Manager of the State Claims Board 18 months or more after his or her claim has accrued, but within the 2-year statute of limitations, has 6 months from the first day on which the claim may be withdrawn from the claims board in which to begin suit"[7]

          The district court found the first day Komar could have withdrawn her claim to begin suit was December 28, 2014, and, applying the rationale from Coleman and Hullinger, calculated that the last date on which Komar could timely have filed suit was June 28, 2015. Because she did not file suit until July 15, the district court dismissed her action as time barred. Komar appealed.

          [299 Neb. 305] Court of Appeals

         The Court of Appeals affirmed.[8] Like the district court, it reasoned Komar's claim accrued on January 15, 2013, and she had 2 years thereafter to bring suit unless the 6-month filing extension of § 81-8, 227(1) applied. In addressing whether Komar was entitled to the filing extension, the Court of Appeals reasoned:

Komar . . . filed her claim with the [Risk Manager] on June 27, 2014, a little more than 17 months after her claim accrued, but still within the 2-year statute of limitations. Pursuant to the language of § 81-8, 213, Komar could have withdrawn her claim from the [State Claims] Board and filed her complaint in the district court as early as December 28, 2014. On December 28, there remained approximately 19 days before the expiration of the 2-year statute of limitations for Komar's claim. If Komar had withdrawn her claim during these 19 days, she would have had an additional 6 months from the date of her withdrawal to file her complaint in the district court, pursuant to the language of § 81-8, 227(1). However, Komar did not withdraw her claim from the Board until July 14, 2015, almost 6 months after the 2-year statute of limitations had expired.[9]

          Like the district court, the Court of Appeals calculated June 28, 2015, was the last date on which Komar could timely have filed suit. Because she did not file suit until July 15, the Court of Appeals concluded Komar's action was time barred and affirmed the district court's dismissal.

         Komar petitioned for further review, urging this court to overrule our holdings in Coleman and Hullinger and interpret § 81-8, 227(1) to authorize a 6-month filing extension that runs from the date a claim is actually withdrawn, rather than the first date on which the claim could have been withdrawn [299 Neb. 306] under § 81-8, 213. We granted further review to ...


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