Issue: October, 2008
Author: Greg Weisz
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Wyoming Governmental Claims Act: Claims Procedures & Limitations Periods
An attorney representing a client with a money damages claim against a state or local governmental entity in Wyoming (or an attorney defending the entity against such a claim) should be familiar with the statutory and constitutional provisions relating to the notice of claim procedure and limitations period of the Wyoming Governmental Claims Act (“WGCA”), Wyo. Stat. Ann. §§ 1-39-101 to -121. The WGCA sets forth the claims procedures and the limitations period applicable to all money damage claims, whether the claim sounds in tort, contract or in the constitution. Strict compliance with these procedures normally is jurisdictional, and failure to comply will bar the claim.
Overview of Time Limitations
The WGCA process involves two steps. First, a claimant must present an itemized notice of claim within two years of the alleged act, error or omission by the governmental entity or its employee(s). Presentation of a notice of claim is a prerequisite to suit. While the two year period for presentation of the claim typically commences on the date of the alleged wrongful act, error or omission, the “discovery” rule sometimes applies. The two year period commences from discovery of the alleged act, error or omission if: (i) the alleged wrongdoing was not reasonably discoverable within the two year period, and (ii) the claimant failed to discover the alleged act, error or omission in that two year period despite the exercise of due diligence. Second, once a claim is filed, the claimant then has one year within which to file suit. A claimant’s failure to comply with any of these requirements operates as an absolute bar to suit.
Strict Application of Time Periods
A claimant must strictly abide by the two year period for presentation of a notice of claim and filing of suit within one year thereafter. However, the two year notice of claim requirement and the one year period for filing of suit may be different types of limitations periods. The two year statutory period for presentation of a claim is not a statute of limitations; it is a statutory condition precedent to the filing of suit. This time period is jurisdictional, and cannot be waived. The right to sue ceases to exist when the two year period expires if no valid notice of claim was presented. Thus, tolling under the doctrine of equitable estoppel likely does not apply, and a defective notice of claim cannot be cured by presentation of a valid claim after the two year period passes under “relation back” principles.
In contrast, the one year period to file suit after presentation of a claim is a statute of limitation. However, the Wyoming Supreme Court suggested that the question is open as to whether the one year period is a “special” statute of limitations (which would have jurisdictional effect) or a “pure” statute of limitations (an affirmative defense subject to waiver or potentially subject to tolling by equitable estoppel). With its earlier decisions, however, the Wyoming Supreme Court has repeatedly upheld strict application of the one year period for filing suit after the claim is presented, which seems to suggest the one year period is a “special” statute of limitations which is jurisdictional. For example, a plaintiff cannot revive a barred claim by including it in a claim for other damages that is not time barred. Finally, the filing of a second claim in relation to the same event (even if done within the two year period following the alleged wrongful act) does not cure a failure to meet the one year limitations period for filing suit after presentation of the first claim. However, the claim must have been a constitutionally-valid claim (see discussion below) to commence the running of the one year limitations period.
In summary, the process requires presentation of a claim within two years of the alleged wrongful event, and suit within one year of presentation of the claim. Thus, the total overall time period for presentation of the claim and filing of suit could extend to about three years, or be shortened to about one year. The one year period to file suit always commences upon presentation of the notice of claim: a claimant who files a notice of claim on the day of alleged wrongdoing must then sue within the next year.
Contents of Governmental Claim
A notice of claim must contain specific information. It must contain: (i) an itemized statement, (ii) the time, place and circumstances of the alleged loss or injury including the name of the public employee involved, if any, (iii) the name, address and residence of the claimant and his representative or attorney, if any, and, (iv) the amount of compensation or other relief demanded.
In addition to the WGCA, a claim must comply with the Wyoming Constitution. The Wyoming Constitution requires submission of a “full itemized statement” of the claim which must be “certified to under penalty of perjury.” The claim must be signed by the claimant; signing by the claimant’s attorney is ineffective. Additionally, courts insist on strict compliance with the “penalty of perjury” requirement; a claim signed by the claimant but not certified to under penalty of perjury does not suffice. Indeed, the “penalty of perjury” requirement affects the subject matter jurisdiction of the district court.
Required Jurisdictional Allegations
Once suit is filed, the plaintiff must make certain allegations in the complaint showing compliance with the above procedures and deadlines. The complaint must specifically allege compliance with the WGCA’s claims procedures and limitations period. The date of both the alleged wrongful act and the date of filing of the notice of claim must be alleged with specificity. Failure to include these allegations requires dismissal.
Moreover, the plaintiff must “allege in his or her complaint not only compliance with statutory filing requirements [of the WGCA] but compliance with constitutional signature and certification requirements.” Failure to include these allegations in the complaint deprives district courts of subject matter jurisdiction.
In conclusion, a practitioner representing a claimant with a money damages claim against a state or local governmental entity in Wyoming should know the WGCA claims procedures and time periods. A valid claim should be presented within two years of the alleged wrongful event. Suit, if any, must follow within one year of presentation of the claim. Numerous cases demonstrate that failure to do so will result in dismissal of a lawsuit, before the merits of the claim are explored.
Greg Weisz is a member of the Laramie, Wyoming, firm of Pence and MacMillan LLC. He has been admitted to practice law in state and federal courts in Wyoming and Colorado since 1995. As part of his general civil litigation practice, Mr. Weisz has defended a number of different of governmental entities in actions brought against the entities under the Wyoming Governmental Claims Act, and is familiar with the claims procedures of the Act.
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