On review from the Court of Appeals. Appeal from Circuit Court, Multnomah County. Charles S. Crookham, Judge. 45 Or. App. 395, 608 P.2d 590 (1980). Richard S. Mannis, Portland, argued the cause for petitioner. With him on the briefs was Kenneth D. Orcutt, Portland.
In spite of the absence of any reference in the applicable version of ORS 30.275(1) to "officers, employes or agents," the trial court nonetheless ruled that plaintiff was required to file the requisite notice with respect to such persons, including the defendant. In doing so, the court relied upon this court's decisions to that effect in Smith v. Pernoll, 45 Or. App. 395, 608 P.2d 590 (1980), and Bradford v. Davis, 46 Or. App. 213, 611 P.2d 326 (1980). However, the Supreme Court has granted review and reversed both those cases.
In this case there is no question whether notice of claim against an individual is meant to be required only when the alleged tort is one which is known to have been committed by a defendant engaged in a public employment or duty or which could only be committed in a public role, or whether the requirement also extends to bar a claim against an individual defendant for an ordinary tort that can equally be committed by a private person independently of any public function (for instance a typical claim of negligent driving), and possibly under circumstances in which the plaintiff knew nothing of the defendant's public employment until lack of the statutory notice is raised in defense. Cf. Smith v. Pernoll, 45 Or. App. 395, 608 P.2d 590, rev allowed, 289 Or. 275 (1980). "(1) Every person who claims damages from a public body for or on acount of any loss or injury within the scope of ORS 30.260 to 30.300 shall cause to be presented to the public body within 180 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, and the amount of compensation or other relief demanded.
Either way, by the time the public body pays the reimbursement request, it has sufficient information to give it the opportunity and the incentive to investigate to determine whether the injured person intends to make a claim against it beyond the PIP reimbursement request. See Smith v. Pernoll, 45 Or.App. 395, 398, 608 P.2d 590 (1980), rev'd on other grounds,291 Or. 67, 628 P.2d 729 (1981) (“The policy behind the 180 day notice requirement is to afford the public body timely notice of the alleged tort to allow its officers an opportunity to investigate all matters promptly and ascertain the facts before they become stale.”). Reimbursement of PIP benefits is not necessarily voluntary. If a tortfeasor's liability insurer denies that the tortfeasor is liable, a PIP insurer can compel arbitration of the liability issue.
291 Or at 72; Or Laws 1975, ch 609, § 14. In Smith v. Pernoll, 45 Or. App. 395, 608 P.2d 590 (1980), we read that language to require a notice of claim as a prerequisite to an action against a state employee acting in the scope of employment. The Supreme Court rejected that conclusion.
Pleading notice sufficient to satisfy the requirements of ORS 30.275(1) is jurisdictional. Urban Renewal Agency v. Lackey, supra; Smith v. Pernoll, 45 Or. App. 395, 608 P.2d 590, rev allowed 289 Or. 275 (1980). Even if defendants could have waived the notice requirement ( see Urban Renewal Agency v. Lackey, supra, at 40, n 4), plaintiff did not allege any facts showing that defendants had done so.
However, without notice to the state, the claims against the individuals must be barred. This is the same conclusion reached by this court in the recent case of Smith v. Pernoll, 45 Or. App. 395, 608 P.2d 590 (1980). This was a suit against named individuals under the pre-1977 statute which did not join the state as a defendant.