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Cummings v. City of Lakin12/12/2003
ll cases for the length of the rejection period, the legislature apparently intended the extension to be contingent, as Martin argues, upon whether the claim was rejected or 120 days passed before expiration of the limitations period. As written, the statute creates two different rules which are applicable to the filing of an action after a claim is denied. The applicability of either is contingent upon whether the claim was denied before or after the statute of limitations. These are the two 'traps' identified in 57 J.K.B.A. 21, 28 (Nov./ Dec. 1988).
"While our interpretation of 12-105b(d) would eliminate the second trap, the first trap remains. The first trap could also be eliminated by amendment of the statute to clearly provide a period for a claimant to file an action after a claim has been denied. Under the Federal Tort Claims Act, a claimant has two years to present a claim to the appropriate agency and six months after that agency denies the claim to initiate an action. 28 U.S.C. § 2401(b) (1988); 28 U.S.C. § 2675 (1988). A statute which makes clear provision for a period during which a claimant is to file an action after the notice of claim is denied is preferable to a statute such as 12-105b(d) which creates traps." (Emphasis added.) 18 Kan. App. 2d at 157-58.
We agree with the concurring opinion of Judge Elliott in the Court of Appeals opinion in the instant case, i.e., it is for the legislature to address this problem, should they feel a need to do so. To date, 10 years after Martin, they have not.
Issue 2: When does the extension begin, i.e., from the expiration of the original statute of limitations or from the time the claimant receives denial of the claim?
For Cummings' second argument, she contends the proper interpretation of the statute would apply the extension to the date the claimant receives the denial, not to the date the statute of limitations would originally have expired. As previously noted, she cites J.P. Asset Co. as support, and our scope of review is unlimited.
Her interpretation, and the relied upon holding in J.P. Asset Co., are incorrect. The statutory language is clear:
"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.) K.S.A. 2002 Supp. 12-105b(d).
As mentioned regarding issue 1, this language clearly establishes that the time period provided for in the code of civil procedure for filing lawsuits, i.e., allowed by the statute of limitations, shall be extended. It logically follows that the extension starts with the date the original statute of limitations was to expire, not the date upon which the claimant received the denial. Once again, this interpretation is not only mandated by the clear language of the statute, but it is also consistent with one of the legislative purposes, i.e., not to prejudice the claimant.
Cummings' reading would not prejudice the claimant. As with her position regarding issue 1, however, her reading would unfairly benefit the claimant because it extends the lawsuit filing deadline by a time period greater than that specifically lost to the claimant by the entity's review process. We will not rewrite K.S.A. 2002 Supp. 12-105b(d) to provide Cummings an extension from the date she received denial of the claim. Consequently, the contrary rationale and holding in JP Asset Co. is dis
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