13-920. Suit against employee; act occurring after May 13, 1987; limitation of action.

(1) No suit shall be commenced against any employee of a political subdivision for money on account of damage to or loss of property or personal injury to or the death of any person caused by any negligent or wrongful act or omission of the employee while acting in the scope of his or her office or employment occurring after May 13, 1987, unless a claim has been submitted in writing to the governing body of the political subdivision within one year after such claim accrued in accordance with section 13-905.

(2) No suit shall be permitted on a claim filed pursuant to this section unless the governing body of the political subdivision has made final disposition of the claim, except that if the governing body does not make final disposition of the claim within six months after the claim is filed, the claimant may, by notice in writing, withdraw the claim from consideration of the governing body and begin suit.

(3) Except as provided in section 13-919, any suit commenced on any claim filed pursuant to this section shall be forever barred unless begun within two years after the claim accrued. The time to begin suit under this section shall be extended for a period of six months (a) from the date of mailing of notice to the claimant by the governing body as to the final disposition of the claim or (b) from the date of withdrawal of the claim from the governing body under this section, if the time to begin suit would otherwise expire before the end of such period.

Source

Annotations

1. Employee status

2. Procedure

3. Miscellaneous

1. Employee status

A claim alleging that an employee acting within the course and scope of his employment caused a motor vehicle accident by failing to stop on a rain-slicked street is a claim within and subject to the provisions of the Political Subdivisions Tort Claims Act. Wise v. Omaha Public Schools, 271 Neb. 635, 714 N.W.2d 19 (2006).

Employment agreements between a political subdivision hospital and a physician and a surgeon described employer-employee relationships, for the purposes of determining whether the physician and the surgeon were employees of the hospital, and therefore, whether medical malpractice suit by the special administrator of the patient's estate was subject to a 1-year presentment requirement as a condition precedent to suit under the Political Subdivisions Tort Claims Act, where, under agreements, the hospital controlled numerous aspects of job performance, including billing and patient records, salaries and deductions required by law, benefits, and means and methods of the defendants' services; agreements provided that the physician and the surgeon were required to comply with medical staff bylaws, rules, and regulations and the hospital's administrative policies, and that all space, facilities, supplies, and equipment furnished by the hospital had to be used exclusively for discharge of duties "as an employee." Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 (2013).

The physician who treated the patient who presented to the emergency room with coughing after eating meat was acting in the course of employment with the political subdivision hospital at the time of the alleged medically negligent treatment, and thus, the claim for wrongful death premised upon medical malpractice was subject to a 1-year presentment requirement as a condition precedent to suit under the Political Subdivisions Tort Claims Act; the employment agreement was between the hospital and the physician, and under the agreement, the physician was required to perform medical services at the hospital's clinics and area hospitals and to be on-call to provide emergency services, and she was providing medical services to the patient at the hospital pursuant to the agreement. Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 (2013).

The political subdivision hospital, the physician, and the surgeon believed they were creating an employer-employee relationship, and not an agency relationship, by executing agreements for the physician and the surgeon to work at the hospital, for the purposes of determining whether the physician and the surgeon were employees of the hospital, and therefore, whether the medical malpractice by the special administrator of the patient's estate was subject to a 1-year presentment requirement as a condition precedent to suit under the Political Subdivisions Tort Claims Act; the surgeon, who was an alien working at the hospital under a work visa, believed he was an employee of the hospital, as required under the terms of the visa, and a former chief executive officer of the hospital testified that the physician and the surgeon were employees of the hospital. Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 (2013).

The treating physician and the surgeon were "employees" of the political subdivision hospital, and thus, the wrongful death suit premised on the alleged medical malpractice of the admitting physician and the surgeon was subject to a 1-year presentment requirement as a condition precedent to suit under the Political Subdivisions Tort Claims Act. Neither the physician nor the surgeon offered services outside the hospital; both of the defendants were under the supervision of the hospital's chief executive officer and the chief of the medical staff; the hospital provided the defendants with all the facilities and supplies to perform their services; it controlled compensation, mandatory withholdings, and benefits; and the provision of medical services was part of the hospital's regular business. Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 (2013).

2. Procedure

The evident purpose of the 6-month extension of the filing deadline set forth in subsection (2) of section 13-919 is to provide claimants who filed timely claims, but filed those claims with the wrong tribunal or pursuant to the wrong statute, enough time to present their claims to the proper political subdivision. This requires, however, that those claimants still act promptly in order to satisfy the public purpose reflected in the notice requirements. A claim "made or filed under any other law of this state," within the meaning of subsection (2) of section 13-919, must still be filed within the 1-year time limit imposed by the appropriate notice provision of either subsection (1) of section 13-919 or subsection (1) of this section. Keller v. Tavarone, 265 Neb. 236, 655 N.W.2d 899 (2003).

The primary purpose of notice provisions in connection with actions against political subdivisions is to afford municipal authorities prompt notice of the accident and injury in order that an investigation may be made while the occurrence is still fresh and the municipal authorities are in a position to intelligently consider the claim and to allow it if deemed just or, in the alternative, to adequately protect and defend the public interest. Keller v. Tavarone, 265 Neb. 236, 655 N.W.2d 899 (2003).

While not a jurisdictional prerequisite, the filing or presentment of a claim to the appropriate political subdivision is a condition precedent to commencement of a suit under the Political Subdivisions Tort Claims Act. Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 (2013).

The filing of a notice of claim under the Political Subdivisions Tort Claims Act is a condition precedent to the institution of a suit to which the act applies. The partial payment of an insurance claim by a political subdivision's insurer standing alone is insufficient to create a question of fact precluding summary judgment as to whether the political subdivision is equitably estopped to assert the 1-year filing requirement. Keene v. Teten, 8 Neb. App. 819, 602 N.W.2d 29 (1999).

Written notice of the withdrawal of a claim from the consideration of the governing body is not mandatory, but is permissive or discretionary. Notice of withdrawal of a claim is not a requirement for commencing suit and applies only if the plaintiff wishes to extend the time period for filing suit under section 13-919(1). Keating v. Wiese, 1 Neb. App. 865, 510 N.W.2d 433 (1993).

3. Miscellaneous

The election by the treating physician and the surgeon, who were employees of the political subdivision hospital, for coverage under the Nebraska Hospital-Medical Liability Act did not excuse the special administrator of the patient's estate from compliance with the 1-year presentment requirement as a condition precedent to suit for wrongful death premised on the medical malpractice under the Political Subdivisions Tort Claims Act. Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 (2013).

The operation of the Nebraska Hospital-Medical Liability Act does not excuse a plaintiff from compliance with the requirement under the Political Subdivisions Tort Claims Act that the claim be presented to the political subdivision prior to filing suit. Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 (2013).