Opinion
Case No. 20060593-CA.
Filed July 19, 2007. Not For Official Publication
Appeal from the Fourth District, Provo Department, 050402970 The Honorable Fred D. Howard.
Michael P. Studebaker, Ogden, for Appellant.
Mark L. Shurtleff and J. Clifford Petersen, Salt Lake City, for Appellee.
Before Judges Billings, Orme, and Thorne.
MEMORANDUM DECISION
Moises N. Morales appeals the district court's order granting the State's motion to dismiss. Morales argues that the district court erred in dismissing his claim under the Utah Governmental Immunity Act and in refusing to apply the doctrine of equitable estoppel against the State.
Lisa M. Morales was listed as an appellant in the notice of appeal. However, Lisa M. Morales has failed to raise any issue in the opening brief applicable to her. Accordingly, any such claims she may have had were waived. See Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540 (stating that issues not presented in an opening brief are waived).
Utah courts have "consistently and uniformly held that suit may not be brought against the state or its subdivisions unless the requirements of the Governmental Immunity Act are strictly followed." Hall v. Department of Corr., 2001 UT 34, ¶ 23, 24 P.3d 958. Accordingly, the courts have "repeatedly denied recourse to parties that have even slightly diverged from the exactness required by the Immunity Act." Wheeler v. McPherson, 2002 UT 16, ¶ 12, 40 P.3d 632.
At the time this action arose, Utah Code section 63-30-15 stated that a "claimant shall begin the action within one year after denial of the claim or within one year after the denial specified in this chapter has expired." Utah Code Ann. § 63-30-15(2) (1997). Morales timely filed a notice of claim with the State on December 15, 2003. The State did not respond to the notice. Accordingly, the claim was deemed denied ninety days later on March 15, 2004. See id. § 63-30-14 (1997) ("A claim shall be deemed to have been denied if at the end of the ninety-day period the governmental entity or its insurance carrier has failed to approve or deny the claim."). As such, Morales should have initiated this lawsuit by March 15, 2005. Morales did not bring this action until September 29, 2005, making the filing approximately six months late. Therefore, Morales did not strictly comply with the statute.
The Utah Immunity Act was amended and renumbered in 2004.
Morales, however, argues that the State should have been equitably estopped from asserting the statute of limitations defense based upon the Governmental Immunity Act because the State had misled Morales into believing that it had accepted Morales's claim. Specifically, on May 22, 2004, Morales sent a letter to the State inquiring into the State's investigation and whether the State had made any determination of liability or coverage. The State responded in a letter four days later that the parties should settle the property damage portion of the claim as outlined in a previous settlement offer from the State. The letter went on to state: "Once Mr. Morales reaches an appropriate stage in his recovery I'd welcome obtaining any information you feel might help us in evaluating and settling his bodily injury claim." Morales argues that he understood this language to be an acceptance of his claim and, as such, was lulled into believing that he did not need to file a lawsuit.
Morales's argument fails for several reasons. First, he overlooks the language in the letter that states: "This letter does not constitute a waiver of any provisions or requirements of the Governmental Immunity Act, Utah Code Ann. 63-30-1 et seq., nor does it confirm or verify the sufficiency of the claimant's notice of claim as required by the act." This language unambiguously informed Morales that despite its willingness to discuss a potential settlement, the State was not waiving any defenses available to it under the Utah Governmental Immunity Act, nor was it excusing Morales from strictly complying with the Act's requirements. Second, Morales could not rely on the letter as an acceptance of his notice of claim because the notice of claim was denied on March 15, 2004, by operation of law. See Utah Code Ann. § 63-30-14. Once the notice of claim was denied by operation of law, Morales was compelled to comply with the express dictates of the Act. The letter merely constituted the beginning of settlement negotiations on a disputed claim. Finally, even if we were to assume that the State intentionally misled Morales into believing that it was going to settle his claim, Morales still had to strictly comply with the unambiguous provisions of the Utah Governmental Immunity Act. See Davis v. Central Utah Counseling Ctr., 2006 UT 52, ¶¶ 44-49, 147 P.3d 390 (concluding that even a claim adjuster's intentionally misleading behavior does not excuse strict compliance with the Utah Governmental Immunity Act when the Act is unambiguous as to the actions that must be taken by the claimant). Because the Utah Governmental Immunity Act unambiguously required Morales to initiate his lawsuit within one year of the date his notice of claim was deemed denied due to a lack of response from the State, we cannot "`disturb explicit legislative requirements' and abrogate the government's sovereign immunity." Id. at ¶ 46 (citations omitted). Accordingly, the district court properly granted the State's motion to dismiss.
Affirmed.
Gregory K. Orme, Judge William A. Thorne Jr., Judge