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Big Crow v. City of Rushwille12/10/2002
t shall be permitted under the . . . Act . . . unless the governing body of the political subdivision has made final disposition of the claim, except that if the governing body does not make final disposition of a claim within six months after it is filed, the claimant may, by notice in writing, withdraw the claim from consideration of the governing body and begin suit . . . .
It is undisputed that Big Crow filed suit 7 days prior to the end of the 6-month period prescribed in § 13-906, without first withdrawing his claim from the City.
Big Crow's "final response" argues that noncompliance with the notice requirements of the Act is an affirmative defense which must be specifically pled in an answer or a demurrer, which the City had not done.
After citing Nebraska case law requiring only "substantial compliance" with the notice provisions of the Act, the trial court found that " f substantial compliance were the rule with regard to not only notice, but also every other aspect of the . . . Act, then the require ments of the ct become only a rough skeleton upon which the courts will hang flesh as they see fit from time to time." The court therefore sustained the City's motion for summary judgment, saying, "A line has to be drawn somewhere." Big Crow appeals.
ASSIGNMENTS OF ERROR
Big Crow alleges that the trial court erred in allowing the affirmative defense of noncompliance with the Act even though the City did not raise the defense in its answer, in determining that the action is barred, and in ruling on the summary judgment motion without allowing discovery of and considering additional evidence.
STANDARD OF REVIEW
There are no disputed facts, and the case involves application of the Act. Interpretation of a statute presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Tighe v. Cedar Lawn, Inc., 11 Neb. App. 250, 649 N.W.2d 520 (2002).
ANALYSIS
Affirmative Defenses Must Be Pled.
Big Crow argues that because the City did not raise noncompliance with the Act in its answer, the City waived any such defense. Thus, the first step in our analysis is to determine whether noncompliance with § 13-906 of the Act is a defense which must be specifically alleged. This necessarily involves examination of the Act's notice requirements.
In Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990), the court held that compliance with the filing or presentment of claim provision of the Act is not a jurisdictional prerequisite for adjudication of a tort claim against a political subdivision. Instead, such filing or presentment is a condition precedent to commencement of an action against that subdivision. Id. The court then held:
Although noncompliance with the notice requirement affords a political subdivision a defense to a negligence action under the . . . Act, a general denial in the political subdivision's answer does not raise the issue of noncompliance, which must be raised as an affirmative defense specifically expressing the plaintiff's noncompliance with the notice requirement of § 13-905 of the . . . Act. Id. at 931-32, 458 N.W.2d at 217.
Millman dealt specifically with § 13-905, the provision of the Act which details the content and filing requirements for notice of a claim against a political subdivision. The Millman court concluded that § 13-905 serves "'to enable the city to make a prompt investigation as to its liability. The notice . . . affects only . . . the remedy of instituting and maintaining an action for
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