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University of Colorado v. Booth11/3/2003
JUDGMENT AFFIRMED EN BANC
We granted certiorari in this case to review the court of appeals decision in Booth v. University of Colorado, 64 P.3d 926 (Colo. App. 2002). We affirm. We hold that timely filing of a notice of claim upon the Board of Regents of the University of Colorado ("University") complies with the Colorado Governmental Immunity Act's ("GIA") notice provisions set forth in section 24-10-109(3), 7B C.R.S. (2002).
I.
In October of 1998, a dry erase board--not properly secured to a classroom wall at the University of Colorado--collapsed and struck Deborah Eileen Booth, a student at the University, in the head while she was sitting at her desk. Booth suffered serious injury. Well within the required 180-day period specified by section 24-10-109(1), 7B C.R.S. (2002), she filed her notice of claim with the University's Board of Regents, which transmitted the notice to its Office of University Counsel the next day.
Moving to dismiss the personal injury lawsuit Booth subsequently filed, the University alleged that section 24-10-109(3) required Booth to file the notice of claim with the Colorado Attorney General instead of the Board of Regents.
The University's argument relied--as it does here--on Schmidt v. Harken, 42 P.3d 34 (Colo. App. 2001), holding that a claimant against the University must file the GIA notice of claim with the Attorney General. The court of appeals decided Schmidt after Booth filed her notice with the University's Board of Regents.
The trial court found Booth's notice of claim proper for three reasons: (1) the decision in Schmidt v. Harken should be applied prospectively only; (2) the Office of University Counsel received the notice of claim within the 180-day limitation established by section 24-10-109(1); and (3) the Colorado Attorney General had appointed the Office of University Counsel attorneys as special assistant Attorneys General and, therefore, notice to the Office of University Counsel was notice to the Attorney General for Schmidt purposes. Booth, 64 P.3d at 927.
In affirming the trial court, the court of appeals relied upon a Memorandum of Understanding ("MOU") executed February 1983 between the Board of Regents and the Attorney General. The MOU transferred from the Attorney General to the Office of University Counsel all responsibility for court proceedings involving the University. The MOU states that the Office of University Counsel will "represent the Board of Regents and the University in court proceedings, . . . serve in the capacity of special assistant Attorney General." The MOU identifies the Office of University Counsel as "structurally part of the Central Administration of the University of Colorado."
Under the MOU, if the Attorney General received a notice of claim against the University it would provide a letter to the claimant stating, "this office does not represent the University of Colorado, . . . Your future contact concerning your claim should be with their representatives." The Attorney General would also send a letter to the Office of University Counsel that provided:
Pursuant to the agreement between our offices, I am forwarding a copy of the notice of claim to you for such action as you deem appropriate. Unless we are advised to the contrary, it is our understanding that either your office or the University's insurance counsel will handle the representation of the interests of the University of Colorado, the Board of Regents or University Hospital in this case.
Booth, 64 P.3d at 928. The Office of University Counsel would then send a letter to the claimant, informing the
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