*1 from) purchase the client after
thereof. during
B. period specified That
above, with or practice he in association New supervision
under licensed attorney,
Mexico that‘at the end specified period, such associated opin- attorney verify his
supervising has Respondent complied
ion that in paragraph
with the conditions set forth writing with
A above filed the Court
in this cause.
IT ORDERED that costs IS FURTHER
of this amount proceeding of $339.98 they hereby
be and are assessed
Applicant.
625 P.2d MARTINEZ, Plaintiff-Appellant,
Rena Boney, Mark OF
CITY CLOVIS
Defendants-Appellees.
No. 4295. New Mexico. Appeals
May 1980. Gallager, Peter Albu-
Pedro Rael and G. appellant. querque, Butt, Shaffer, Davis, Thorn- Deborah S. Baehr, C., Albuquerque, appel- P. ton & lees.
OPINION WALTERS, Judge. the City of Clovis
Plaintiff’s suit officers was dismissed and one of its strictly failure to prejudice for her comply with the notice 41-4-16, Act, specifically § Tort Claims Act has N.M.S.A.1978. This section We reverse. previously been construed. requires claims are municipality against *2 notice, appellant’s We need not addi- presented be a written consider made “stating place, the and circumstance since we points appeal, tional two raised on ninety days or injury,” of the loss within with these agree contentions. rise to the giving after the occurrence provides B of that 41-4-16 Subsection case, disputed In this claim. it is not body for which a local public no suit attorney the insurer plaintiffs’ and main- has been “shall be immunity waived exchanged had communications and no court have tained shall regarding within the ninety-day period unless any or action to consider” such suit plaintiff’s injuries claims and the she sus- given, has been the notice above referred to tained in the collision with the vehi- notice or actual exists. cle. argu second Answering plaintiff’s on Motion to hearing At the defendant’s first, look of language we to the ment
Dismiss, of Clovis gave in effect time of the 41-4—4 at §§ testimony: following accident, liability 41—4-6 of regarding and Q. anyone ap- Do have you in this case employees. portions public pertinent company or a pointed or an insurance those statutes read as follows: City Attorney takes care of these lia- from tort Granting immunity 41-4^4. you? matters for exemptions. bility; authorizing correct, hardly A. why That’s that’s I any pub- governmental entity A. A insurance ever see it. It’s referred within employee acting lic while company through City Attorney and our immunity from duty granted are scope agents. through their any provided for as liability except tort han- Q. you And do of them approve to 41-4-25 the Tort Claims Act [41—4-1 dling your them in behalf? N.M.S.A.1978]. Yes, sir, policy. A. that’s been * * * * g liability any alleged against When C. Q. you get Is it ever the for policy alleged to employee any torts public these cases personally any involved in scope within have been committed authority delegated or is all of this property for a duty, or violation his attorneys? company your insurance immu- rights, or rights any privileges or un- get personally A. I involved do by secured the constitution nities (sic). requested less I am or summonsed the constitu- laws of the United or States the insurance Q. you And do authorize Mexico, govern- and laws of New tion they au- company attorneys, and the shall a defense entity provide mental you and receive by go thorized ahead an If judgment. pay any settlement handle however notice and the case provides a defense carrier insurance think best? sued, duty employee any public imposed by this subsection A. Yes. defend to have been satisfied. be deemed con- plaintiff urges Thus that the letters mayor’s dele- written notice to the stitute
gated agent. parks, Liability; buildings, public 41-4-6. furnishings. machinery, equipment and point by appel-
A raised second error pursuant granted of the requirements lant is that the notice 41-4-4 N.M.S.A. “claims A of Section apply only person when a Subsection for dam- apply liability any public does not damages from the state or wrong- resulting bodily injury, 41-4-16A, body.” ages N.M.S.A.1978. She caused property damage apply do not ful death says the notice while employees brought employee negligence when suit is duties of their scope or in opposed only, acting as to, itself. or maintenance operation addition machinery, equip- necessity giving written notice to building, public park, ment or furnishings. well offending public employee as as to
mayor, superintendent, to the school district *3 division, or to the management to the risk As we have already noted 41—4- Section pub- other local any administrative head of requires 16A claimant to spells body, lic as the statute out. See notice to the any officials therein named of Sneller, (Iowa N.W.2d 389 Vermeer v. against claim any public “the state or local 1971). body” ninety-day period, within the or suf- against fer dismissal for lack of in the plaintiff’s We hold that claim However, district court to hear the matter. not have been dis- Boney defendant should nothing there is notice provisions with the notice non-compliance missed for of 41—4-16 such notice from requiring 4-16, one § N.M.S.A.1978. § 41— damages who claims em- against public We now consider whether de ployee; and im- merely because 41—4—4C § to dismissal on fendant was entitled poses upon governmental entity ground. the same which the employee obligation works the to court de- argument In before the trial provide a defense employee pay to its correctly argued that fendant’s counsel reached, any judgment settlement or it does not public employee, convert a without im- [Njotice given must be to the . .. 4-6, munity under public into a “local being § for the notice to en- purpose [t]he 41— body,” “governmental entity,” or to correct public able local bodies ... “state or state terms agency,” as those problems or defects which have the defined in 41—4-3. § as a re- opportunity to become aware of sult of this notice.
An' employee
political
of a
subdivision’s
e.,
that,
now
or
the We are
since cases
“instrumentality”
persuaded
“institution” —i.
police department
not and cannot
Act
arising under
Tort Claims
almost
—is
instrumentality
(as
be considered the
or institu-
always present
impression
issues of first
tion
Legislature recognized
does),
itself. The
in
the instant case
statements made
separately defining “public
distinction in
compensation
regarding
workmen’s
suits
4-3D, N.M.S.A.1978,
employee” at
§
the reason for notice should be accorded
41—
specifying
in
the separate areas of liabilities
great weight.
It
has been said
repeatedly
granted
and immunities
“governmen-
purpose
requirement
that the
of a notice
tal entity”
any “public employee”
person
entity
enable the
to whom
4—4,supra,
subsequent
sections.
given,
notice must be
or its insurance com
41—
pany,
investigate
the matter while the
The language of the written notice sec-
accessible,
witnesses,
question
facts are
include,
tion does not
and therefore does
protect
aggravated
simulated or
to,
apply
employees.
practi-
claims,
pay
and to consider whether to
cal effect of
an interpretation,
such
while
See,
Big
claim or refuse it.
e.
g., Collins
defeating
provision
the notice
insofar as the
380,
Four Paving, Inc. 77 N.M.
«57
similarity.
purpose
tor. There is no such
provision
Sanchez
the notice
having
expressly
served,
noted that
the board of commis-
step
process
been
and one
in the
“had neither authorized nor
sioners
at-
investigation
eliminat-
prompt
having been
tempted
impose upon
respon-
the sheriff
ed, we
court
hold it was error for the trial
sibility
relay”
receive or
notices of road
ground
to dismiss
defendants on the
defects to the Board.
Michigan Highway Dept., 58 St. 189, (1975); 227 N.W.2d Turner v. 286 This legislature. established (1973); Nev. Staggs, 89 governmental I But policy respect. Department, 386 Reich v. Highway State therein, influ- unit, who live people not the 617, 194 (1972); Mich. N.W.2d 700 Batcheld word, or a phrase the use of ence N.E.2d Haxby, Ind.App. er statute in the enactment sentence Staton, J., (1975), Sears v. dissenting; fundamental adverse may be Southworth, (Utah 1977), Mau P.2d result, trywe As a rights people. its Annot., ghan, J., Modern Sta dissenting. governmental protection balance the tus Law To Statute Validity Of The As Of rights peo- of the unit and the fundamental Tort Requiring Or Ordinances Notice Of period limitation hold the ple. may We Entity, Against Claim Local Governmental gov- of the the protection constitutional (1974). 59 A.L.R.3d erase the notice We must ernmental unit. limitations, inde year one people. the benefit provision for Act, for actions pendent of the Tort Claims alternative, 41-4- we must In has been held constitutional. against municipalities fa- Espa 16(A) (B) interpretive approach Housing Authority v. nola provision notice people. vorable to (1977), Atencio, 90 N.M. *5 unit governmental N.M. if reversing Appeals, 90 is not effective “the (Ct.App.1977). Some states An occurrence.” had notice of the actual difference between are confused about the “the broad than much more “occurrence” is and statutory period a of limitation a of loss or the place and circumstances of notice under the presentment definitions, see 67 C.J.S. injury.” For Nevertheless, 41-4- Tort Act. Claims Phrases (1978); Words and p. occur 198 29 16(A) nature of a statute (B) and “is in the that an (1972). may say et We p. seq. 324 protect governmental enti limitations event, hap- an incident is “occurrence” ties claims from stale fraudulent pening. oppor governmental the defendant the had actual notice City If of Clovis tunity investigate the incident and to that a occurred between vehicular accident litiga attempt to settle the claim short city offi- plaintiff Boney, police and Mark tion. The formal notice omitted.] [citation course, requirement, exception: has an cer, mayor lack of notice to the the de required no formal notice is where was report An police irrelevant. official fendant has ‘actual notice’. This ‘actual by report police made another officer and a therefore, notice’ is in the exception, nature The city police department. made to the of a of limitation.” defense avoidance vehicle City damage knew of Regional Airport Bell v. Dallas-Fort Worth operated by Boney the need of restor- Bd., (D.C. 1977). F.Supp. 427 929 Texas ing it to operation. police Another officer may apply Atencio to the instant case. riding was Boney knew of validity in judgment When we sit on the City’s accident. The insurance carrier was aof notice of claim statute enacted notified of the accident some member of unit, protection we governmental must city personnel. people compose overlook the that fact Mathes, City v. 528 625 of Denton S.W.2d unit, people injured and seek who personal in a (Tex.Civ.App.1975) held relief but are unaware of existence of injury third-party claim action which a the statute. favor Some courts which indemnity had been filed sovereign denial of relief on the old rely trial City under Claims created as doctrine admitting portions of court did not err in the law our land. Courts like Su- police purposes on the accident for report preme recognized the burden Court acci- showing notice of the actual it under decrepit theory swept old and police is “actual” dent. Notice to officers State, rug. Hicks v. N.M. Ran- (1975). City. or “constructive” notice dolph City Chicago, Ill.App. (1942).
N.E.2d 143 City places department
charge present of accidents. Police are at
the scene and have actual notice and knowl-
edge of the event. We cannot allow the
City to hide behind the lack of notice to the
mayor to escape liability. To show “actual
notice” to a or governmental agency,
it is unnecessary to show that they actually
knew the fact or facts to be sought charged by positive testimony.
to them direct It is
sufficient to show by circumstances that
they knew the facts or have known should
them, if proper inquiry having were made
knowledge putting of facts them on inquiry.
They may not remain purposely ignorant. (Tex.Civ.
West Jennings, S.W.2d
App.1938). of Clovis had “actual notice.” *6 Mexico,
STATE of New
Plaintiff-Appellee, HINOJOS,
Robert Gutierrez
Defendant-Appellant.
No. 4299. Mexico. Appeals of New
June 1980.