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Big Crow v. City of Rushwille12/10/2002
§ 13-905 provides a governmental subdivision a period of time before commencement of a lawsuit to examine the merits of a tort claim and possibly avoid the expense and other difficulties associated with litigation by settling the claim.
Clearly, § 13-906 serves virtually the same purpose as § 13-905. We therefore hold, in accordance with the liberal construction doctrine from Chicago Lumber Co., supra, that substantial compliance with § 13-906 is sufficient when a lack of precise compliance has caused no prejudice to the political subdivision. Filing suit 7 days before the 6-month period has run is clearly substantial compliance.
The City argues in its brief that because Big Crow withdrew the claim 7 days early, its "opportunity to investigate and obtain information about its allegedly tortious conduct was ended abruptly and it was left with no choice but to defend [against] the litigation." Brief for appellee at 12. That naked conclusion is without evidentiary support, and as the moving party, the City would have the burden to prove it was prejudiced. See Smeal v. Olson, 263 Neb. 900, 644 N.W.2d 550 (2002). As a practical matter, the City's ability to investigate or settle the claim could hardly be prejudiced by the filing of suit 7 days early, given that it had 30 days to respond to the petition. See Neb. Rev. Stat. § 25-821 (Reissue 1995). In addition, although Big Crow filed suit on April 21, 2000, the City was not served notice of the suit until May 5, by which time the statutory 6-month period had run. The City's argument that it was prejudiced is not viable because the time which it had to make its decision to settle or litigate was unaffected given that the City was unaware of the suit and certainly was not compelled to act on the suit until May 5. Thus, lacking proof in the record of any prejudice to the City, we hold that substantial compliance with § 13-906 is sufficient.
CONCLUSION
Viewing the evidence in the light most favorable to the City, we find that Big Crow substantially complied with § 13-906 and that such compliance was sufficient on these facts. We therefore reverse the district court's decision and remand the cause for further proceedings.
Reversed and remanded for further proceedings.
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