 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cummings v. City of Lakin12/12/2003
in King v. Pimentel, 20 Kan. App. 2d 579, Syl. 6, 890 P.2d 1217 (1995).
In support of Cummings' contention that Martin and Pimentel were wrongly decided and that she is entitled to a blanket extension of 120 days, she cites Stevenson, 245 Kan. 425. There, we considered whether the newly enacted requirements of 12-105b(d) applied to Stevenson's claim when the statute of limitations governing that claim expired 23 days after the statute was enacted on July 1, 1987. We ruled the statute did not apply retroactively to her claim because 23 days was not a reasonable period of time in which to comply with the new statute, and we reinstated her cause of action. We agree with Cummings that Stevenson contained the following language:
"It could be argued here that the statute provides a 120-day extension of the statute of limitations, and thus a reasonable time to commence a proceeding before the expiration of the limitation. However, this argument ignores the fact that Stevenson had only twenty-three days in which to provide notice of the claim. Such notice was necessary to activate the 120-day statute of limitations extension." 245 Kan. at 430.
Cummings' reliance on this language, however, is misplaced. We agree with the Court of Appeals in Martin, 18 Kan. App. 2d 155, holding this language was dicta. K.S.A. 12-105b(d) simply did not apply to Stevenson's claim, much less any extension under that statute.
Moreover, Cummings' statutory interpretation is contradicted by the plain language of K.S.A. 2002 Supp. 12-105b(d). It states that any action "shall be commenced within the time period provided for in the code of civil procedure," i.e., allowed by the statute of limitations, and that "such time period shall be extended by the time period required for compliance with the provisions of this subsection." (Emphasis added.) When construing a statute, we should give words in common usage their natural and ordinary meaning. International Ass'n of Firefighters v. City of Kansas City, 264 Kan. 17, Syl. 2, 954 P.2d 1079 (1998). This rule prohibits us from rewriting K.S.A. 2002 Supp. 12-105b(d) to give Cummings a blanket 120-day extension. We therefore affirm the Court of Appeals' rationale in Martin, Pimentel, and the instant case on this issue.
This affirmation is also consistent with the balanced legislative purposes behind K.S.A. 2002 Supp. 12-105b. On the one hand, the notice of claim requirement affords a municipality an opportunity to review and investigate tort claims against it and to approve or deny such claims before having to litigate an action under the Kansas Tort Claims Act. King, 20 Kan. App. 2d at 590. On the other hand, although there is no legislative history, the language of the statute makes clear the legislature's intent to insure that a party complying with the statute's notice of claim provisions will not be prejudiced if during the rejection period the statute of limitations expires. See Martin, 18 Kan. App. 2d at 157. Extending the period for filing suit only by the exact amount of time during which the entity considered the claim results in no prejudice against and just as important, also no advantage to the claimant. Cummings' interpretation, however, accomplishes more than mere erasure of any prejudice. It creates an additional enlargement of time without any basis in policy.
We are not turning a blind eye to the "traps" that can befall a litigant in the timing of the notice of claim. The pitfalls have been noted repeatedly. In Martin, the Court of Appeals stated:
"While it is true, as the Board notes, that the legislature could have specifically provided for the extension of the limitations period in a
Page 1 2 3 4 5 Kansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|