Opinion
No. 76-234
Decided January 13, 1977. Rehearing denied February 24, 1977. Certiorari granted May 9, 1977.
In personal injury action against Regional Transportation District and one of its drivers, trial court dismissed the complaint for failure to file 90-day notice required by Governmental Immunity Act. Plaintiff appealed.
Affirmed in Part, Reversed in Part.
1. NOTICE — Governmental Immunity Act — Requirement of Notice — Substantial Compliance — Not Present — Awareness — Accident Investigation — By Governmental Entity. In personal injury action against Regional Transportation District and one of its drivers, where plaintiff failed to file written notice of the accident from which the suit arose as required by the Governmental Immunity Act, the fact that RTD and its insurance carrier were aware of the accident and had made their own investigation did not constitute substantial compliance with the notice requirements of the Act so as to excuse the plaintiff from filing the required notice.
2. ESTOPPEL — Governmental Immunity Act — Failure to File Notice — Estoppel Not Present — Unless — Reliance — Representations Of Public Entity. Though the doctrine of equitable estoppel may be applied against a public entity, the party alleging estoppel must show that, to her detriment, she changed her position in justifiable reliance on the words or conduct of the other party; accordingly, in a personal injury action against a public entity, where plaintiff failed to file the notice required by the Governmental Immunity Act, since plaintiff made no allegation of, nor was there evidence of, any assurances or representations by the entity or its insurance carrier that compliance with notice requirements would be unnecessary, and since there was no allegation or evidence that plaintiff in any way changed her position to her detriment in justifiable reliance on any other representations of defendants, the doctrine of equitable estoppel did not apply.
3. NOTICE — Governmental Immunity Act — Required Notice Provision — Existence of Liability Insurance — Without Effect. The notice provision of the Governmental Immunity Act is a condition precedent to the commencement of an action against a public entity, and there is no provision in the Act which alters the purpose or requirement of notice where the entity has elected to carry liability insurance; thus, statute which provides that public entities having liability insurance "shall be deemed to have waived the defense of sovereign immunity" is without effect as to that notice requirement.
4. CARRIERS — Drivers of Public Vehicles — May Be Liable — Sovereign Immunity — Protects Their Employer. Public employees may be liable for their own negligence, even when the defense of sovereign immunity is available to their employer, and this includes drivers of public vehicles; consequently, since there exists no clear legislative intent to change the common law right of action against such employees in either the express provisions of the Governmental Immunity Act, or from necessary implication, an action against only an employee of public entity is not subject to the notice provision of the Act, and thus, in a personal injury action against the Regional Transportation District and one of its drivers, the trial court was correct in dismissing the complaint against RTD for plaintiff's failure to give notice, but the dismissal of the complaint against the driver in his individual capacity was error.
5. INDEMNITY — Governmental Immunity Act — Required Notice — Not Given — Public Entity — No Liability — As Indemnitor. If there is a failure to give notice of an accident as required by the Governmental Immunity Act, the public entity cannot be subject to liability as an indemnitor under the indemnity provision of the Act.
Appeal from the District Court of the City and County of Denver, Honorable Mitchel B. Johns, Judge.
Frickey, Cairns Wylder, P.C., Earl S. Wylder, for plaintiff-appellant.
Walberg Pryor, Hugh G. Bingham, for defendants-appellees.
Plaintiff appeals from a judgment dismissing her complaint for failure to file the 90-day notice provided for in § 24-10-109(1), C.R.S. 1973. We affirm in part and reverse in part.
The essential facts, for purposes of this appeal, are not in dispute. On May 22, 1975, plaintiff's car was struck from the rear by another car that had been rear-ended by a bus owned by defendant Regional Transportation District (RTD) and driven by one of its employees, defendant Kurt W. Kristensen. The bus driver, and an RTD Supervisor who was called to the scene of the accident, talked with plaintiff and filed accident reports that day with RTD which included comments that plaintiff was complaining of pain in her shoulder. The report forms were transmitted to RTD's insurance carrier the following day. On June 6, 1975, the insurance carrier paid plaintiff for the damage to her car. The insurance carrier and RTD were aware of the accident within 24 hours after its occurrence. Without filing any written notice of the accident as required by § 24-10-109(1), C.R.S. 1973 (Colorado Governmental Immunity Act), plaintiff filed this suit September 8, 1975, naming both the driver and RTD as defendants. It is acknowledged that RTD is a "public entity" and that the Act is applicable to RTD in this case.
[1] Plaintiff first contends that there was substantial compliance with the notice requirements and thus the court erred in dismissing her complaint. Plaintiff points to the fact that RTD and its insurance carrier were aware of the accident and had made their own investigation; therefore she argues the purpose of the notice section of the statute was fulfilled and there was at least substantial compliance. This same argument based on similar facts was considered and rejected by the court in Jacob v. Colorado Springs, 175 Colo. 102, 485 P.2d 889. Following Jacob, we hold that under the facts of this case there was neither substantial compliance nor evidence of any excuse from giving notice.
Plaintiff also contends that defendants are estopped from successfully contending that she failed to file the required notice. We do not agree.
[2] Though the doctrine of equitable estoppel may be applied against a public entity, the party alleging estoppel must show that, to her detriment, she changed her position in justifiable reliance on the words or conduct of the other party. City of Sheridan v. Keen, 34 Colo. App. 228, 524 P.2d 1390. Here, plaintiff makes no allegation nor is there evidence of any assurances or representations by RTD or its insurance carrier that compliance with notice requirements would be unnecessary. Furthermore, there is no allegation or evidence that plaintiff in any way changed her position to her detriment in justifiable reliance on any representation of defendants. See University of Colorado v. Silverman, 192 Colo. 75, 555 P.2d 1155; Wilson v. Denver, 168 Colo. 43, 449 P.2d 822.
Plaintiff further argues that the notice requirements of § 24-10-109, C.R.S. 1973, are not applicable where, as here, the public entity carries liability insurance. It is plaintiff's position that since § 24-10-104, C.R.S. 1973, provides that if a public entity has liability insurance "then such public entity shall be deemed to have waived the defense of sovereign immunity" that therefore the notice requirement as to public entities is also waived.
[3] Plaintiff cites no authority for this position, and we find none. The notice provision is a condition precedent to the commencement of an action against a public entity, Antonopoulos v. Telluride, 187 Colo. 392, 532 P.2d 346, and we find no provision in the Act which alters the purpose or requirement of notice where the entity has elected to carry liability insurance.
Plaintiff's final contention is that even if the court was correct in dismissing the complaint against RTD for failure to give notice, the dismissal of the complaint against the driver in his individual capacity was error. We agree.
Although the language of § 24-10-109(3), C.R.S. 1973, could be read to require that the 90-day notice must be given even when suit is brought against only the employee of a public entity, we conclude that the Immunity Act, when viewed as a whole, does not indicate that the legislature intended such a result. Therefore, we hold that the common law right of action against a public employee is not affected by the Act.
[4] Public employees may be liable for their own negligence, even when the defense of sovereign immunity is available to their employer. Liber v. Flor, 143 Colo. 205, 353 P.2d 590; Denver v. Madison, 142 Colo. 1, 351 P.2d 826. This includes drivers of public vehicles. See Johnsen v. Baugher, 92 Colo. 588, 22 P.2d 855. Accordingly, unless there exists a clear legislative intent to change the common law right of action against such employees, evidenced either from the express provisions of the Immunity Act, or by necessary implication, we will not impute to the legislature such an intent to do away with this common law right. See Uzzell v. Lunney, 46 Colo. 403, 104 P. 945.
We find no such clear expression of intent in the Immunity Act. Rather, a review of the Act as a whole indicates an intent to define and limit only the extent to which a public entity would be liable for its actions and those of its agents. This intent is revealed in the Legislative Declaration, § 24-10-102, C.R.S. 1973, which provides:
"It is . . . recognized that the state and its political subdivisions by virtue of the services and functions provided, the powers exercised, and the consequences of unlimited liability to the governmental process should be liable for their actions and those of their agents only to such an extent and subject to such conditions as are provided by this article. The general assembly also recognizes the desirability of including within one article all the circumstances under which the state or any of its political subdivisions may be liable in actions other than contract. . . ." (emphasis supplied)
Other sections of the Act further reveal that its purpose was to protect only the governmental entity. See §§ 24-10-104 through 108, C.R.S. 1973.
Consequently, so long as no liability arises under the Immunity Act against the entity, an action against only the employee is not subject to the notice provision of the Act. See, Antonopoulos v. Telluride, supra.
[5] To effect the protection of the public entity which we find was intended by the express provisions of the Act, we also hold that, if there is a failure to give the notice required by § 24-10-109, the entity cannot be subject to liability as an indemnitor under § 24-10-110. Otherwise, claimants would be able to do indirectly what their failure to give notice prevented them from doing directly, i.e., reach the resources of the entity via this indemnity provision.
This result is in accord with Antonopoulos, supra, where the right of action against police officers of a town was held uneffected by the Immunity Act, and the town was held subject to liability as an indemnitor, even though notice complying with § 24-10-109 was not given. In that case, the indemnity liability arose under § 29-5-111, C.R.S. 1973, which is limited to police officers, and which is wholly independent of the Immunity Act. In contrast, any indemnity liability to the public entity in the present case arises under § 24-10-110, C.R.S. 1973, which is a part of the Immunity Act. As such, notice in compliance with § 24-10-109 must be given before the entity is liable for a judgment against an employee or the employee's cost of defense.
The dismissal of the complaint against RTD is affirmed. The dismissal of the complaint against the driver, Kristensen, is reversed, and the cause is remanded for further proceedings.
JUDGE STERNBERG concurs.
JUDGE COYTE concurring in part and dissenting in part.