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Greene v. Utah Transit Authority12/18/2001
Third District, Salt Lake The Honorable Stephen L. Henriod
Teresa Greene filed a complaint against the Utah Transit Authority ("UTA"). The trial court dismissed her complaint, holding that she failed to comply with the Utah Governmental Immunity Act ("Immunity Act"). We affirm.
BACKGROUND
Although the trial court characterized its order as granting UTA's motion to dismiss, the order is more properly characterized as granting summary judgment. Because UTA's motion was brought, in part, under Rule 12(b)(6) of the Utah Rules of Civil Procedure, and because matters outside the pleadings were considered by the trial court, Rule 12 requires that the motion be treated as one for summary judgment and disposed of as provided in Rule 56. Utah R. Civ. P. 12(b), (c); see also, e.g., DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 838 n.3 (Utah 1996). When determining whether a trial court properly granted a motion for summary judgment, we review the facts in the light most favorable to the losing party below. Bearden v. Croft, 2001 UT 76, 5, 31 P.3d 537. We review the facts accordingly.
Teresa Greene sued UTA to recover for injuries she sustained while boarding a UTA bus on September 21, 1998. Ms. Greene retained Mitchell Jensen to pursue recovery from UTA in excess of UTA's standard personal injury insurance coverage.
Because UTA is a governmental entity, an action against it may proceed only if allowed by the Immunity Act. The Immunity Act requires that before maintaining an action against UTA, an individual must first direct and deliver a written notice of claim ("Notice") to UTA's president or secretary of the board within one year after the claim arises. See Utah Code Ann. ยงยง 63-30-11, -13 (Supp. 2001).
Mr. Jensen engaged in oral and written communications with David C. Pitcher, UTA's sole claims adjuster, regarding Ms. Greene's claim. In a telephone call between Mr. Pitcher and Mr. Jensen, Mr. Pitcher directed Mr. Jensen to send all communications, including the Notice, to Mr. Pitcher. Pursuant to these instructions, Mr. Jensen delivered the Notice to Mr. Pitcher at UTA by letter dated August 6, 1999. Mr. Pitcher denied the claim in a letter dated September 24, 1999, explaining that UTA would not make a settlement offer as the Notice did not comply with the delivery requirements of the Immunity Act. By this time the one-year limitations period had expired.
Shortly thereafter, Ms. Greene filed a complaint to recover compensation from UTA. In response, UTA filed a motion to dismiss, alleging Ms. Greene's noncompliance with the Immunity Act's requirement that the Notice be served on the president or secretary of the board. The trial court denied the motion without prejudice to allow discovery on whether UTA had waived or was estopped from raising objections to the requirements of the Immunity Act.
Mr. Jensen deposed Mr. Pitcher and Kathryn Pett, UTA's general counsel and secretary. Both testified that Mr. Pitcher is not authorized by UTA's board to accept a Notice on UTA's behalf. Mr. Pitcher estimated that he is the initial recipient of Notices approximately 40% of the time and that in such cases he takes no action to inform the claimant that he or she has delivered the Notice to the wrong individual. Mr. Pitcher denied having told Mr. Jensen to whom the Notice was to be delivered.
After discovery UTA renewed its motion to dismiss, which the trial court ultimately granted. It found that Ms. Greene failed to strictly or substantially comply with the Immunity Act, that she had been represented by counsel, and that UTA had no legal obligation to help Ms. Green prosecute her case. Ms.
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