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Cummings v. City of Lakin12/12/2003
This case concerns the interpretation of the notice of claims statute, K.S.A. 2002 Supp. 12-105b. Based upon the district court's interpretation, it dismissed Connie Cummings' personal injury lawsuit against the City of Lakin as untimely. The Court of Appeals affirmed in Cummings v. City of Lakin, 31 Kan. App. 2d 532, 67 P.3d 166 (2003). We granted Cummings' petition for review, since another panel of the Court of Appeals appears to have reached dissimilar results 2 months later when it interpreted the same statute. See J.P. Asset Co. v. City of Wichita, 31 Kan. App. 2d 650, 70 P.3d 711 (2003).
We consider two closely-related issues on appeal:
1. What is the length of the extension of time provided to a claimant by K.S.A. 2002 Supp. 12-105b(d) when a claim is denied after the statute of limitations has expired?
2. When does the statutory extension of time begin, i.e., from the expiration of the original statute of limitations or from the time the claimant receives denial of the claim?
The lower courts in the instant case extended, beginning from the expiration date of Cummings' original statute of limitations, by the actual amount of time that elapsed between the filing of her notice of claim with the City of Lakin and her attorney's receipt of the City's denial. We affirm.
FACTS
Connie Cummings was injured when she stepped on a manhole cover and fell in the City of Lakin (City). She alleges the City installed the cover in a negligent manner. The following timeline is important to our determination of whether her lawsuit against the City to recover damages for her injuries was timely filed:
May 11, 2000: Cummings was injured.
May 10, 2002: City receives Cummings' notice of claim pursuant to K.S.A. 2002 Supp. 12-105b(d).
May 13, 2002: Statute of limitations was due to expire pursuant to K.S.A. 2002 Supp. 60-513(a)(4), since May 11, 2002, (2 years from the injury) was a Saturday.
July 2, 2002: The City denied Cummings' claim.
July 8, 2002: Cummings' attorney received the City's letter of denial.
July 24, 2002: Cummings filed her petition in the Kearny County District Court.
November 5, 2002: 120 days from Cummings' attorney's receipt of the denial letter.
After oral arguments on the City's motion for judgment on the pleadings, the district court granted the motion on September 19, 2002. Among other things, it found that while K.S.A. 2002 Supp. 12-105b(d) extended the statute of limitations, Cummings' lawsuit needed to have been filed by July 11 to be timely. It specifically found that the filing of her notice of claim with the City did not automatically extend the statute of limitations by 120 days, but only for the time during which the City had been considering the claim.
The Court of Appeals affirmed. After examining the statute and its opinions in Martin v. Board of Johnson County Comm'rs, 18 Kan. App. 2d 149, 848 P.2d 1000 (1993), and King v. Pimentel, 20 Kan. App. 2d 579, 890 P.2d 1217 (1995), the court held that the statute of limitations is extended by the actual amount of time that elapses between the filing of the notice of claim and the claimant's receipt of the denial. Under Cummings' facts, the statute of limitations was therefore extended to July 11, i.e., by 59 days. "This was the number of days between May 10, 2002, when the notice of claim was filed with the City, and July 8, 2002, the date when Cummings' attorney received the City's rejection letter." 31 Kan. App. 2d at 534-35.
Two months later a somewhat different panel of the Court of Appeals filed J.P. Asset Co. v. City of
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