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Cummings v. City of Lakin12/12/2003
Wichita, 31 Kan. App. 2d 650. There, the court considered the 40-day period which the City of Wichita had taken to deny plaintiff''s claims. A split panel applied the 40-day extension to the date the claim was denied by the City, not to the earlier date when the statute of limitations would have otherwise expired. The City's petition for review is pending before this court.
ANALYSIS
Issue 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?
Cummings generally contends the Court of Appeals in the instant case misconstrued K.S.A. 2002 Supp. 12-105b(d) by relying upon Martin v. Board of Johnson County Comm'rs, 18 Kan. App. 2d 149. She argues we should overrule Martin. Citing Stevenson v. Topeka City Council, 245 Kan. 425, 781 P.2d 689 (1989), she specifically contends the proper interpretation of the statute would provide a claimant with a blanket 120-day extension, regardless of how long the governmental entity reviewed the claim.
Second, citing J.P. Asset Co. she also specifically contends the proper interpretation of the statute would apply the 120-day extension to the date the claimant receives the entity's denial, not to the date the statute of limitations would originally have expired. Combining her readings of Stevenson and J.P. Asset Co., she calculates her deadline for filing suit as November 5, 2002 120 days after her attorney received the City's denial of her claim on July 8.
The City responds that the Court of Appeals was correct in Martin, Pimentel, and the instant case, and Cummings misinterprets this court's holding in Stevenson.
While these two issues will be analyzed separately below, they both require us to interpret K.S.A. 2002 Supp. 12-105b(d). Statutory interpretation is a question of law, and this court's scope of review is unlimited. State v. Anthony, 274 Kan. 998, 999, 58 P.3d 742 (2002). The statute states:
"Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act [K.S.A. 75-6101 et seq.] shall file a written notice as provided in this subsection before commencing such action. . . . Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, if compliance with the provisions of this subsection would otherwise result in the barring of an action, such time period shall be extended by the time period required for compliance with the provisions of this subsection." (Emphasis added.)
Contrary to Cummings' first contention regarding a blanket 120-day extension, the Martin court had interpreted 12-105b(d) and stated the length of the extension would vary from case to case depending upon the length of time that elapses between the filing of the notice of claim with the governmental entity and its denial. 18 Kan. App. 2d at 157. The same statutory language was given the same interpretation by the Court of Appeals 2 years later
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