383 P.3d 1259
Idaho2016Background
- CNW LLC owns an office building whose parking lot developed a sinkhole in June 2012 caused by water from Porter Canal (operated by New Sweden Irrigation District) infiltrating an abandoned City-owned sewer line.
- CNW’s counsel contacted NSID’s president, who directed them to NSID’s attorney, Jerry Rigby; from July–October 2012 communications were routed through Rigby.
- On October 18, 2012 CNW mailed a notice of tort claim addressed to “New Sweden Irrigation District c/o Jerry R. Rigby”; Rigby forwarded it to NSID’s secretary, DeLillian Reed, who passed it to NSID’s insurer and informed CNW Rigby did not represent NSID and requested completion of an internal form (which CNW never returned).
- CNW sued NSID and the City on December 19, 2012 and served an amended notice on NSID January 25, 2013. NSID moved for summary judgment, arguing failure to comply with ITCA presentment requirements (I.C. § 6-906).
- The district court granted summary judgment, finding the October 18 notice insufficient and the 180-day filing period expired before the amended notice; CNW appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether delivery of the October 18, 2012 notice satisfied presentment under I.C. § 6-906 | CNW: sending notice "c/o" NSID’s attorney satisfied presentment because Rigby forwarded it to NSID’s secretary and the secretary received it | NSID: notice was not properly presented to the clerk/secretary; Turner requires direct delivery to the clerk/secretary | Held: Presentment satisfied — notice was received by NSID’s secretary after being forwarded by counsel, which meets § 6-906 when an agent/employee delivers notice to the clerk/secretary |
| Whether presentment requires formal/personal service on clerk/secretary | CNW: § 6-906 does not require formal service or personal delivery; liberal construction favors substantial compliance | NSID: presentment must be to the clerk/secretary directly, not merely to other officials or intermediaries | Held: § 6-906 does not require formal personal service; delivery via an agent/employee who causes the notice to reach secretary suffices |
| Proper consequence if notice was inadequate: when 180-day period began and estoppel | CNW: alternative arguments that the 180-day period had not begun until NSID admitted canal work in Dec. 2012 and that NSID should be estopped from denying notice | NSID: statute bars claims not presented timely; alternative defenses apply if initial notice inadequate | Held: Court did not reach these alternatives because it resolved presentment in CNW’s favor |
| Entitlement to fees/costs on appeal | CNW: requested attorney fees under I.C. §§ 12-121 and 12-117 | NSID: requested fees/costs under I.C. § 6-918A and/or § 12-117 | Held: CNW entitled to costs on appeal; no attorney fees awarded because CNW cited wrong statutory basis and § 6-918A requires clear-and-convincing showing of bad faith, which was not shown |
Key Cases Cited
- Turner v. City of Lapwai, 157 Idaho 659 (2014) (notice must reach clerk/secretary, but Turner does not mandate personal delivery in all circumstances)
- Huff v. Uhl, 103 Idaho 274 (1982) (delivery to receptionist who brought claim to secretary satisfied notice requirement)
- Doe v. Durtschi, 110 Idaho 466 (1986) (liberal approach to ITCA notice requirement)
- Farber v. State of Idaho, 102 Idaho 398 (1981) (ITCA notice purposes and interpretation)
- Smith v. City of Preston, 99 Idaho 618 (1978) (rejecting interpretation that personal submission is sole method of compliance)
- Block v. City of Lewiston, 156 Idaho 484 (2014) (I.C. § 6-918A is exclusive statutory basis for attorney-fee awards under ITCA)