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Rouse v. Anaconda-deerlodge County9/11/1991
sonable time after presentation of the claim should the government entity fail to act upon the claim. See Annotation, Limitation period as affected by requirement of notice or presentation of claim against governmental body, 3 A.L.R.2d 711, § 10 (1949). We hesitate to legislate what a reasonable time would be after presentation of a claim before it should be deemed denied.
Furthermore, we think that the reasoning of the Wisconsin Supreme Court in Gutter v. Seamandel (1981), 103 Wis.2d 1, 308 N.W.2d 403, applies to this case. In Gutter, the court discussed the applicability of a statute [Wis. Stat. 1975 § 62.25(1)(e)] providing a six month limitation period after rejection of a claim and requiring the tribunal to serve the claimant with a notice of disallowance. In holding that this statute applied rather than a statute providing a 90 day disallowance period when the council fails to act [Wis. Stat. 1975 § 345.05], the court stated:
"Our interpretation is also consistent with the public policy justifications for statutes of limitation. Statutes of limitation are imposed to ensure prompt litigation of valid claims and to protect a defendant from fraudulent or stale claims. Armes v. Kenosha County, 81 Wis.2d 309, 319-320, 260 N.W.2d 515 (1977). Interpreting § 62.25(1)(e) to apply does not unduly lengthen the period during which suit may be commenced. On the contrary, the length of the period is controlled by the council which has only to serve notice of disallowance in order to start the six month period within which the action must begin. In this respect, § 345.05, not requiring proof of service of notice of disallowance, does little to ensure prompt litigation; such a statute is more likely to deprive unwary plaintiffs of the opportunity to litigate." (Emphasis added.)
Gutter, 308 N.W.2d at 414. Here, after Rouse filed his timely claim with the County, the County had notice of pending claims against it and also controlled the commencement of the six month limitation period. It would be inherently unfair to require Rouse to file a timely claim against the County before filing an action in District Court and then to penalize him for the County's failure to act, or stalling on the claim. We hold that under §§ 2-9-302 and 27-2-209(3), MCA, the initial period of limitation for claims against a county is tolled upon timely filing of the claim and the six month period of limitation for filing an action in district court does not begin to run until the claimant receives notice of the county board's first denial of the claim.
II. DEFENDANTS MARTELLI AND CUTLER
A. Malicious Prosecution Claim
The District Court held that § 27-2-204, MCA, is the statute of limitation applicable to the claims of assault and malicious prosecution against the individual defendants Martelli and Cutler. The statute provides:
"27-2-204. Tort actions — general and personal injury . (1) Except as provided in 27-2-216, the period prescribed for the commencement of an action upon a liability not founded upon an instrument in writing is within 3 years.
"(2) The period prescribed for the commencement of an action to recover damages for the death of one caused by the wrongful act or neglect of another is within 3 years.
"(3) The period prescribed for the commencement of an action for libel, slander, assault, battery, false imprisonment, or seduction is within 2 years." (Emphasis added.)
Subsection (3) provides a two year limitation period for specific intentional torts. Subsection (1) provides a residual three year limitation period for torts not specifically enumerated in the statute. The Distric
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