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Williams v. Clay County11/13/2003
mined to have been given on November 15, 1999, or March 16, 2000, the result of commencing the 120 day tolling period upon notice, and allowing complaints to be brought in the following 90 days, works to reduce the statute of limitations to less than one year. None of the previous Court of Appeals or Supreme Court decisions interpreting this statute supports this conclusion. The decision in Marshall, that the Legislature did not intend to shorten the one year statute of limitations provided by the MTCA to something less than one year, is correct in my view.
. In order to lend some certainty to the determination of the timeliness of filing complaints under the MTCA, this Court should annunciate a clear procedure. Combining the efforts of both courts, in my view the bright line interpretation should be as follows: Actions must be brought within one year. Notice must precede any action by at least 90 days. When notice is given within 95 or 120 days (depending on the government entity given notice) of the running of the statute, the 95 or 120 day tolling period begins. During this period, no action may be brought by the claimant. At the end of this 95 or 120 day tolling period, or whenever a denial of claim is received, the claimant then has 90 days to file suit. When notice is given prior to the 95/120 cut-off date, no action may be taken by the claimant for 95/125 days. A complaint may then be filed within one year plus 95/120 days of the cause of action date.
. Applying this rule to the present case, the plaintiff's case is not time barred. Because the notice was directed to a county entity, the tolling period is 120 days. Because the notice was given prior to the 120 day cut-off, a suit must be filed within one year plus 120 days of the cause of action. The date of injury was November 1, 1999; therefore the last day for filing suit was February 28, 2001. The plaintiff in this case filed her timely lawsuit on January 31, 2001.
. Thus, the circuit court erred in dismissing this action as untimely. I would reverse its judgment and remand this case for further proceedings. For these reasons, I respectfully dissent.
PITTMAN, C.J., JOINS THIS OPINION.
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