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Big Crow v. City of Rushwille12/10/2002
the collection of damages.'" 235 Neb. at 928, 458 N.W.2d at 215. In addition, the court found that the notice provision permits a political subdivision to investigate its liability and possibly settle the claim to avoid litigation.
[1,2] As the 6-month waiting period prescribed in § 13-906 clearly serves the same purpose as the notice provisions of § 13-905—to give a political subdivision an opportunity to investigate and dispose of a claim, if so inclined, without litigation—we find that extension of the holding in Millman to § 13-906 is only logical. The procedural requirements of § 13-906 are not jurisdictional prerequisites. Instead, they are conditions precedent to a plaintiff's right to bring suit under the Act. Noncompliance with § 13-906 must therefore be pled as an affirmative defense.
Did City Raise Defense of Noncompliance?
The City argues in its brief that it sufficiently raised the defense of noncompliance in its answer. We quote those portions of the City's answer which are claimed to allege noncompliance:
12. [The City] dmits that [Big Crow] has provided notice of this claim by certified mail . . . .
13. [The City] dmits that the [City] did not make final disposition of [Big Crow]'s claim.
14. [The City] enerally denies each and every other remaining allegation . . . .
18. [The City] pecifically alleges that [Big Crow]'s Amended Petition fails to state a cause of action against [the City].
In summary, the City admits that it did not make final disposition of the claim, asserts a general denial, and alleges that Big Crow stated no cause of action against it. Nothing in the City's answer alleges a failure to withdraw the claim after the passage of 6 months before filing suit or that the suit was filed prematurely. To raise the affirmative defense of noncompliance, a general denial is insufficient. See Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990). Because Millman also holds that the Act's procedural requirements affect only the right to sue, not the subdivision's tort liability or the substantive elements for the plaintiff's recovery, alleging that Big Crow had not stated a cause of action does not adequately raise the specific defense of noncompliance with the Act.
Further, Big Crow is not required to wait for the City to "finally" dispose of the claim. He must wait only 6 months, after which he can withdraw the claim and file suit. We find that the City did not raise the affirmative defense of noncompliance in its answer, but there are other considerations.
In the absence of a showing of prejudice, an affirmative defense may be raised for the first time on a motion for summary judgment. Rivera v. Anaya, 726 F.2d 564 (9th Cir. 1984). See, also, DeCosta Sporting Goods, Inc. v. Kirkland, 210 Neb. 815, 316 N.W.2d 772 (1982) (holding that purpose of placing affirmative defense in answer is to give opposing party opportunity to meet defense and that there is no distinction between defendant's filing answer raising affirmative defense followed by motion for summary judgment and defendant's inclusion of defense in motion itself). Nothing in the City's summary judgment motion directly or indirectly raises the affirmative defense of noncompliance with § 13-906. But, the record shows that noncompliance was the sole issue on summary judgment, and Big Crow and his counsel were clearly aware of that fact.
[4,5] Big Crow's pleading entitled "Plaintiff's Response to Defendant's Motion for Summary Judgment" clearly stated his understanding that noncompliance—and only noncompliance—would be addressed on summary judgment. As held in DeCosta Sportin
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