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James Saylor, appellant, 

v. State of Nebraska 

et al., appellees.

___ N.W.2d ___

Filed June 19, 2020. No. S-18-794.

1. Summary Judgment: Appeal and Error. An appellate court will affirm 

a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from those facts and 

that the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Tort Claims Act: Political Subdivisions Tort Claims Act: Appeal 

and Error. Where the relevant facts are undisputed, whether the notice 

requirements of the State Tort Claims Act or the Political Subdivisions 

Tort Claims Act have been satisfied is a question of law, on which 

an appellate court reaches a conclusion independent of the lower 

court’s ruling.

4. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

5. Administrative Law. Agency regulations that are properly adopted and 

filed with the Secretary of State have the effect of statutory law.

6. Political Subdivisions Tort Claims Act: Notice. In cases under the 

Political Subdivisions Tort Claims Act, the substantial compliance doctrine applies when deciding whether the content of a claim satisfies the 

presuit claim presentment requirements in Neb. Rev. Stat. § 13-905 

(Reissue 2012).

7. ____: ____. Substantial compliance with the statutory provisions pertaining to a claim’s content supplies the requisite and sufficient notice 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/24/2020 08:07 AM CDT
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to a political subdivision in accordance with the Political Subdivisions 

Tort Claims Act when the lack of compliance has caused no prejudice to 

the political subdivision.

8. Tort Claims Act: Political Subdivisions Tort Claims Act. Generally, 

provisions of the State Tort Claims Act should be construed in harmony with similar provisions under the Political Subdivisions Tort 

Claims Act.

9. ____: ____. Under the State Tort Claims Act, when a question is raised 

about whether the content of a presuit tort claim complied with the manner in which the State Claims Board prescribed such claims to be filed, 

the substantial compliance doctrine may be applied, just as it is applied 

under the Political Subdivisions Tort Claims Act.

10. ____: ____. Under both the State Tort Claims Act and the Political 

Subdivisions Tort Claims Act, application of the substantial compliance 

doctrine is limited to the content of a presuit claim. The doctrine of substantial compliance does not apply when considering whether a presuit 

tort claim has complied with statutory timing requirements or whether it 

has been served on the recipient described in the statute.

11. Tort Claims Act: Political Subdivisions Tort Claims Act: Notice.

Under both the State Tort Claims Act and the Political Subdivisions 

Tort Claims Act, application of the doctrine of substantial compliance is 

confined to situations where the content of the tort claim nevertheless 

satisfies the primary purpose of the presuit notice requirements by notifying the state or political subdivision about possible tort liability for a 

recent act or omission so it may investigate and make a decision whether 

to pay or defend the claim.

Appeal from the District Court for Lancaster County: 

Robert R. Otte, Judge. Reversed and remanded for further 

proceedings.

Michael J. Wilson, of Berry Law Firm, for appellant.

Douglas J. Peterson, Attorney General, Scott R. Straus, and, 

on brief, David A. Lopez, Deputy Solicitor General, for appellee State of Nebraska.

Miller-Lerman, Cassel, Stacy, and Funke, JJ.

Stacy, J.

James Saylor, an inmate at the Nebraska Department of 

Correctional Services (DCS), appeals from an order dismissing 
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his lawsuit under the Nebraska State Tort Claims Act (STCA), 1

based on a finding that Saylor failed to comply with the presuit filing requirements of the STCA. 2 Because we find Saylor 

substantially complied with those requirements, we reverse, 

and remand for further proceedings.

BACKGROUND

Tort claims against the State are governed by the STCA. 3

This case requires us to focus on the presuit administrative 

requirements of the STCA. Before suit can be commenced 

under the STCA, a claimant must present the claim in writing 

to the Risk Manager for the State Claims Board within 2 years 

after the claim accrued. 4 Pursuant to § 81-8,212, such claim 

“shall be filed with the Risk Manager in the manner prescribed 

by the State Claims Board.” Generally speaking, a claimant 

cannot file suit under the STCA until the Risk Manager or 

State Claims Board makes a final disposition of the claim. 5

However, if no final disposition of a claim has been made after 

6 months, § 81-8,213 authorizes the claimant to withdraw the 

claim and commence an action under the STCA. 6

We have described the presuit claim presentment requirement in § 81-8,212 and the final disposition requirement in 

§ 81-8,213 as procedural conditions precedent to commencing a tort action against the State in district court, and not 

as jurisdictional prerequisites for the adjudication of a tort 

claim against the State. 7 Noncompliance with these procedural 

1 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp. 

2018).

2 See § 81-8,212.

3 Komar v. State, 299 Neb. 301, 908 N.W.2d 610 (2018).

4 See, § 81-8,227(1); Komar, supra note 3.

5 § 81-8,213; Komar, supra note 3.

6 Komar, supra note 3.

7 See Cole v. Isherwood, 264 Neb. 985, 653 N.W.2d 821 (2002) (superseded 

by rule on other grounds as stated in Weeder v. Central Comm. College, 

269 Neb. 114, 691 N.W.2d 508 (2005)).
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conditions precedent is considered an affirmative defense to 

be raised by the State. 8 We apply the same rules to the presuit 

claim presentment and final disposition procedures under the 

Political Subdivisions Tort Claims Act (PSTCA). 9 Under both 

the STCA and the PSTCA, the primary purpose of the presuit 

claim presentment procedures is the same: to notify the state 

or political subdivision about possible tort liability for a recent 

act or omission, to provide an opportunity to investigate the 

allegedly tortious conduct, and to enable the state or political subdivision to make a decision whether to pay or defend 

the claim. 10

Saylor Files Tort Claims 

With Risk Manager

Between June 12, 2016, and February 23, 2017, Saylor filed 

16 separate tort claims with the Risk Manager. 11 Pursuant to 

§ 81-8,212 of the STCA, these claims had to “be filed with the 

Risk Manager in the manner prescribed by the State Claims 

Board.” Saylor filed all 16 of his claims using the standard 

form provided by the Risk Manager. Each claim form contained 18 fields requesting information regarding the claim. 

Some fields were marked with an asterisk indicating it was 

a “required” field. Further, each form contained a blank area 

with the following instructions:

Provide detailed itemization of all known facts/

circumstances/damages leading to your claim. Identify 

all property, places, and people involved. Include names, 

8 Id.

9 Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012 & Cum. Supp. 2018). 

See, e.g., Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007); 

Big Crow v. City of Rushville, 266 Neb. 750, 669 N.W.2d 63 (2003); 

Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003); Millman v. 

County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990) (superseded by 

rule on other grounds as stated in Weeder, supra note 7).

10 See, Cole, supra note 7; Chicago Lumber Co. v. School Dist. No. 71, 227 

Neb. 355, 417 N.W.2d 757 (1988).

11 See § 81-8,212.
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addresses and phone numbers of witnesses, if any. The 

information provided herein, along with the findings 

of the investigating agency, will form the basis of 

any decision.

In this section, most of Saylor’s claim forms described 

instances in which he claimed the actions of DCS or its 

employees either denied him timely medical care, aggravated 

his existing post-traumatic stress disorder, or deprived him 

of the use of devices that eased his pain. In a few claim 

forms, Saylor alleged DCS staff deprived him of the use of 

certain legal materials in his possession or interfered with 

his ability to meet with his attorney. Saylor generally stated 

that all these things caused him physical and emotional pain 

and suffering.

On each form, Saylor provided information in all required 

fields. One of the required fields, field No. 9, was titled “Total 

Amount of Claim.” When completing field No. 9 on each 

claim form, Saylor wrote “[t]o be proven” without specifying 

a dollar amount.

The Risk Manager, in a series of letters, acknowledged 

receiving all of Saylor’s claims. Those letters notified Saylor 

of the claim numbers assigned to his claims and advised it 

may take up to 6 months to receive final disposition. None 

of the letters indicated the claim forms were incomplete, and 

there is no evidence that additional information was requested 

from Saylor during the Risk Manager’s investigation. The 

parties generally agree the Risk Manager denied Saylor’s 

tort claims in a series of letters dated June 15, 2017. Those 

denial letters indicated that upon investigating the claims, “it 

was determined that there is no evidence of staff misconduct 

or negligence.”

Complaint and Motion for 

Summary Judgment

On June 16, 2017, Saylor filed a complaint in district 

court against the State of Nebraska, DCS, and 10 unnamed 

DCS employees (the State). He thereafter filed an amended 
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complaint, styled as 16 separate causes of action, each one 

premised on a tort claim previously submitted to and denied 

by the Risk Manager. The State moved to dismiss the amended 

complaint for failure to state a claim. 12 The parties stipulated 

to the receipt of evidence and agreed the motion should be 

treated as one for summary judgment. 13

The State’s sole argument for summary judgment was 

that Saylor failed to satisfy the claim presentment provisions of § 81-8,212 with respect to his claimed damages. 

The State asserted, summarized, that § 81-8,212 requires all 

tort claims to be filed “in the manner prescribed by the State 

Claims Board” and that regulations adopted by the State 

Claims Board 14 require all claims to “contain all information 

called for” on the claim form. 15 The State argued that Saylor’s 

claims did not “contain all information called for” on the form 

because he did not specify a dollar amount in field No. 9. In 

remarks to the court, the State suggested there were other possible deficiencies in Saylor’s tort claims, but in the interest of 

time, it had elected to seek dismissal only on the basis that no 

dollar amount was specified in field No. 9. The district court 

limited its analysis accordingly.

District Court Order

The district court agreed with the State that by not specifying a dollar amount in field No. 9, Saylor had not filed his 

claim in the manner prescribed by the State Claims Board, and 

that therefore, he had not complied with § 81-8,212. The court 

expressly rejected Saylor’s assertion that the State waived its 

right to contest compliance with the claims procedure under 

§ 81-8,212 by accepting his claim forms, sending him letters 

acknowledging receipt and assigning claims numbers, and then 

denying the claims on their merits.

12 See Neb. Ct. R. Pldg. § 6-1112(b)(6).

13 § 6-1112(b).

14 See § 81-8,221.

15 Neb. Admin. Code, State Claims Board, rule No. 12 (1975).
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The district court granted the State’s motion for summary 

judgment and dismissed Saylor’s amended complaint with 

prejudice. Saylor timely appealed, and we moved the case to 

our docket on our own motion.

ASSIGNMENTS OF ERROR

Saylor assigns, restated, that the district court erred in granting the State’s motion for summary judgment because (1) 

Saylor’s tort claim forms provided the requested information 

and substantially complied with the presuit requirements of the 

STCA and (2) the State waived any challenge to compliance 

with requested information on the tort claim forms.

STANDARD OF REVIEW

[1,2] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law. 16 In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the 

party against whom the judgment was granted and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence. 17

[3] Where the relevant facts are undisputed, whether the 

notice requirements of the STCA or the PSTCA have been satisfied is a question of law, on which an appellate court reaches 

a conclusion independent of the lower court’s ruling. 18

[4] Statutory interpretation presents a question of law, 

for which an appellate court has an obligation to reach an 

16 JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71 

(2019).

17 Id.

18 Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461 

(2003).
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independent conclusion irrespective of the decision made by 

the court below. 19

ANALYSIS

The sole issue on appeal is whether the district court erred 

in dismissing Saylor’s STCA action for failure to comply with 

the presuit claim presentment requirement of § 81-8,212. As 

stated, that statute requires, in relevant part, that “[a]ll tort 

claims shall be filed with the Risk Manager in the manner prescribed by the State Claims Board.” 20

The State Claims Board has adopted rules and regulations 

that prescribe not only the manner of filing a tort claim, but 

also the form and content of such claims. Assuming without 

deciding that the statutory authority to prescribe the “manner” 

of filing tort claims with the Risk Manager includes prescribing the form and content of such claims, we summarize, in 

the next section, the pertinent regulations adopted by the State 

Claims Board.

[5] A certified copy of those regulations was received into 

evidence at the summary judgment hearing. It showed the 

regulations were adopted in 1975 and have not been amended 

since that time. It also showed the regulations have been signed 

and approved by the Governor and the Attorney General, as 

well as filed with the Secretary of State. We have held that 

agency regulations that are properly adopted and filed with the 

Secretary of State have the effect of statutory law. 21

State Claims Board Rules 

and Regulations

Regarding the manner of filing a tort claim, the regulations 

require it “shall be filed in triplicate with the Secretary of the 

Board, State Capitol Building, State House Station, Lincoln, 

19 JB & Assocs., supra note 16.

20 § 81-8,212 (emphasis supplied).

21 Val-Pak of Omaha v. Department of Revenue, 249 Neb. 776, 545 N.W.2d 

447 (1996).
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Nebraska, 68509.” 22 Regarding the form of filing a tort claim, 

the regulations require that it “should be typewritten and upon 

a form provided by the Board, but claims printed by hand 

upon the Board’s form will be accepted if legible.” 23 And 

regarding the content of a tort claim, the regulations require 

that “[a]ll claims shall contain all information called for on 

the Board’s ‘Claim for Injury or Damage’ form, including 

the instructions printed on the back of the blue sheet of the 

form set, and also such other information as is pertinent to 

the claim.” 24

Also received into evidence was a certified copy of a document titled “Standard Operating Procedures: How to File a 

Tort Claim Against the State of Nebraska.” According to the 

certificate, these operating procedures are available online 

and were created by the State’s risk management division of 

the Department of Administrative Services. Unlike properly 

adopted administrative regulations, an agency’s operating procedures do not have the force and effect of law. 25

As relevant to the issues on appeal, the Risk Manager’s 

operating procedures contain instructions regarding which 

form to use when filing a tort claim, how to complete the 

form, and how to file the form once completed. These instructions differ from the State Claims Board’s regulations in 

several key respects. Specifically, the Risk Manager’s instructions do not reference the “Claim for Injury or Damage” 

form required by the regulations, and instead, they direct 

that a “Tort & Miscellaneous Claim Form” be completed. 

The Risk Manager’s instructions do not direct that the claim 

form be filed in triplicate with the secretary of the State 

22 Neb. Admin Code, State Claims Board, rule No. 6 (1975).

23 Neb. Admin Code, State Claims Board, rule No. 7 (1975).

24 Rule No. 12, supra note 15.

25 See, e.g., Reed v. State, 272 Neb. 8, 717 N.W.2d 899 (2006) (in contrast to 

agency regulations, agency manuals and guidelines lack force of law and 

do not warrant deference).
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Claims Board as required by the regulations, but instead, 

they direct that the form should be submitted electronically to 

“as.riskmanagement@nebraska.gov” or mailed to the “Office 

of Risk Management” at a specific post office box in Lincoln. 

The Risk Manager’s operating procedures also provide that 

“[o]nly fully completed and signed Tort Claim Forms will 

be accepted by the office of Risk Management.” It is undisputed that all of Saylor’s tort claims were accepted by the 

Risk Manager and that all were presented using the “Tort & 

Miscellaneous Claim Form.”

Arguments of Parties

After Saylor commenced his tort action in district court, the 

State sought dismissal based on a single affirmative defense: 

that Saylor’s presuit tort claims were deficient because when 

he answered field No. 9, asking for the “Total Amount of 

Claim,” he did not provide a dollar amount, and instead stated 

“[t]o be proven.” The State contends that because the answer 

to field No. 9 did not reference a dollar amount, the forms 

did not “contain all information called for,” 26 and that thus, 

the claims were not filed “in the manner prescribed by the 

State Claims Board” as required by § 81-8,212. The State also 

asserts, as it did before the trial court, that the substantial compliance doctrine which this court has applied when reviewing 

the content of presuit claims under the PSTCA 27 should not 

be applied under the STCA. The State argues, summarized, 

that the substantial compliance doctrine is inconsistent with 

the principle that “requirements of the [STCA] must be followed strictly.” 28

26 Rule No. 12, supra note 15.

27 See, e.g., Jessen, supra note 9; West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 

785, 420 N.W.2d 291 (1988); Chicago Lumber Co., supra note 10.

28 See Jill B. & Travis B. v. State, 297 Neb. 57, 69, 899 N.W.2d 241, 252 

(2017).
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Saylor contends that even though his answer to field No. 9 

was not stated in dollars, he nevertheless provided “all information called for” 29 on the standard form, and that he thus 

substantially complied with the provisions of § 81-8,212. He 

also argues it was impossible for him to strictly comply with 

the “manner prescribed by the State Claims Board” for filing claims, pursuant to § 81-8,212, because the State Claims 

Board’s rules and regulations are outdated and inconsistent 

with the information and instructions on the only claim form 

currently made available for filing tort claims—the “Tort & 

Miscellaneous Claim Form.”

Substantial Compliance Doctrine 

Under PSTCA

[6] In cases under the PSTCA, we have long applied the 

substantial compliance doctrine when deciding whether the 

content of a claim satisfied the statutory presuit claim presentment requirements. 30 Section 13-905 sets out the PSTCA’s presuit claim presentment requirements, and it is the counterpart 

to § 81-8,212 under the STCA.

Section 13-905 requires that “[a]ll [tort] claims shall be in 

writing and shall set forth the time and place of the occurrence giving rise to the claim and such other facts pertinent 

to the claim as are known to the claimant.” We pause here to 

observe that when the Legislature prescribed the content of 

presuit claims under the PSTCA, it identified some requirements that are specific and objective (like the time and place 

of the occurrence) and some which are nonspecific and subjective (like “other facts pertinent to the claim as are known to 

the claimant”). The challenge of determining compliance with 

similar presuit notice requirements that predated the PSTCA 

29 Rule No. 12, supra note 15.

30 See, e.g., Jessen, supra note 9; West Omaha Inv., supra note 27; Chicago 

Lumber Co., supra note 10.
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led this court, more than a century ago, to adopt the substantial 

compliance doctrine.

In City of Lincoln v. Pirner,

 31 we applied the substantial 

compliance doctrine to a statute requiring that before a tort 

action could be commenced against the city, “‘it shall be necessary that the party file in the office of the city clerk, within 

three months from the time such right of action accrued, a 

statement giving full name and the time, place, nature, circumstances and cause of the injury or damage complained 

of.’” In that case, the plaintiff’s written claim stated that he 

fell into a “coal-hole” in a city sidewalk, but it incorrectly 

identified the block number. 32 We rejected the city’s argument 

that this claim was deficient, reasoning that the presuit notice 

requirement “should be liberally construed by the courts” and 

that “if the description given and the inquiries suggested by it 

will enable the agents and servants of the city to find the place 

where the accident occurred, there is a substantial compliance 

with the law.” 33

In Chicago Lumber Co. v. School Dist. No. 71,

 34 we addressed 

whether a letter complied with the presuit claim presentment 

requirements of the PSTCA. At the time, those requirements 

were codified at Neb. Rev. Stat. § 23-2404 (Reissue 1983) and 

provided, as § 13-905 does now, that a claim must “set forth 

the time and place of the occurrence giving rise to the claim 

and such other facts pertinent to the claim as are known to 

the claimant.”

The claim letter at issue did not reference a particular time 

or place, but it complained that the plaintiff had provided the 

school district with building materials and supplies in connection with a recent project to renovate a specific school. The 

31 City of Lincoln v. Pirner, 59 Neb. 634, 639-40, 81 N.W. 846, 847 (1900) 

(quoting Comp. Stat. ch. 13a, § 36 (1899)).

32 Pirner, supra note 31, 59 Neb. at 637, 81 N.W. at 846.

33 Id. at 640, 81 N.W. at 847.

34 Chicago Lumber Co., supra note 10.
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letter cited to statutes requiring the school district to obtain 

a construction bond from the contractor. The letter further 

stated that the district had failed to obtain such a bond in 

connection with the particular renovation project and that the 

plaintiff had suffered damages as a result.

[7] On appeal, the school district claimed this presuit 

notice was insufficient under the PSTCA because it did not 

state with precision the time and location of the occurrence 

giving rise to the claim. 35 We disagreed, reasoning that the 

language of § 23-2404 did not require a claimant to “state the 

indicated information, circumstances, or facts with the fullness or precision required in a pleading.” 36 We explained “the 

notice requirements for a claim filed pursuant to the [PSTCA] 

are [to be] liberally construed so that one with a meritorious 

claim may not be denied relief as the result of some technical noncompliance with the formal prescriptions of the act.” 37

And we said that “substantial compliance with the statutory 

provisions pertaining to a claim’s content supplies the requisite and sufficient notice to a political subdivision in accord

ance with [the PSTCA], when the lack of compliance has 

caused no prejudice to the political subdivision.” 38 Because 

the claim letter identified the contractor to whom the plaintiff 

had delivered the supplies and identified the particular school 

renovation project at issue, we found the content of the claim 

substantially complied with the time and place requirements 

under the PSTCA.

In West Omaha Inv. v. S.I.D. No. 48,

 39 we again addressed 

whether the content of a letter complied with the presuit presentment requirements of the PSTCA. In a letter to the political 

35 Id.

36 Id. at 368, 417 N.W.2d at 765.

37 Id. at 369, 417 N.W.2d at 766.

38 Id. (emphasis supplied).

39 West Omaha Inv., supra note 27.
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subdivision, the plaintiff claimed fire damage to specific property on a specific date and alleged that a contributing cause of 

the fire damage was the defendant’s negligence in failing to 

furnish water with which to extinguish the fire. The political 

subdivision argued this claim was insufficient because it did 

not specify a dollar amount of damage. We held the contents 

of the letter were sufficient, noting in part that the statutory 

language did not “mandate that the claim contain the amount 

of damages or loss.” 40 We also reasoned that the letter substantially complied with the statute because it set forth the date, 

location, and circumstances of the event giving rise to the 

claim and alleged that property loss had occurred as a result of 

the political subdivision’s negligence.

As these cases illustrate, we have long applied the substantial compliance doctrine when the question presented 

was whether the content of a presuit tort claim satisfied the 

statute and supplied the political subdivision with sufficient 

notice to enable it to accomplish the primary goals of the 

presuit claim presentment requirements under the PSTCA 

and similar statutes. 41 But as other cases illustrate, we have 

declined to apply the substantial compliance doctrine when the 

question presented did not involve compliance with contentbased requirements.

We have refused to apply the substantial compliance doctrine when the presuit claim was not filed with the statutorily 

authorized recipient, 42 reasoning that notice to the wrong 

recipient may deprive a political subdivision of the opportunity 

40 Id., 227 Neb. at 790, 420 N.W.2d at 295. Compare Jessen, supra note 9 

(holding presuit presentment requirements of PSTCA not substantially met 

because claim did not make any demand).

41 Accord, Loontjer v. Robinson, 266 Neb. 902, 914, 670 N.W.2d 301, 310 

(2003) (Hendry, C.J., concurring) (“‘[s]ubstantial compliance with a statute 

is not shown unless it is made to appear that the purpose of the statute is 

shown to have been served. What constitutes substantial compliance with 

a statute is a matter depending on the facts of each particular case’”).

42 See, e.g., Estate of McElwee, supra note 18; Willis v. City of Lincoln, 232 

Neb. 533, 441 N.W.2d 846 (1989).
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to investigate and settle claims and thus must be given to a 

person or entity specified in the statute. 43 Similarly, we have 

refused to apply the substantial compliance doctrine to presuit 

claims that did not comply with the statutory time limits under 

the PSTCA, reasoning that, unlike the general requirements 

regulating the content of presuit claims, the time limits are 

specific and can be determined with precision. 44 And finally, 

we have refused to apply the substantial compliance doctrine 

when the content of the purported claim was so indefinite or 

contingent in nature it could not fairly be characterized as presenting a tort claim at all. 45

Substantial Compliance 

Doctrine and STCA

[8] We have not yet had occasion to consider the propriety 

of applying the substantial compliance doctrine to the content 

of a presuit claim under the STCA. Generally, provisions of the 

STCA should be construed in harmony with similar provisions 

under the PSTCA. 46 We have expressly recognized the similarity of the presuit content claim presentment requirements 

under § 81-8,212 of the STCA and § 13-905 of the PSTCA, 47

and as discussed already, we have consistently applied the 

substantial compliance doctrine to the content of such claims 

under the PSTCA.

The State concedes the substantial compliance doctrine has 

been applied for decades to similar presuit claims under the 

43 Willis, supra note 42.

44 See, Big Crow, supra note 9; Schoemaker v. Metro. Utilities Dist., 245 

Neb. 967, 515 N.W.2d 675 (1994).

45 See, e.g., Jessen, supra note 9 (letter to physician accusing malpractice 

but not making any demand is not written tort claim under § 13-905); 

Peterson v. Gering Irr. Dist., 219 Neb. 281, 363 N.W.2d 145 (1985) (letter 

to irrigation district that made no actual demand but merely alerted district 

to possible claim for damages that may occur is not claim).

46 Cole, supra note 7.

47 See id.
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PSTCA, but it asks us to find the doctrine is incompatible 

with the STCA. As support for this argument, the State relies 

exclusively on the principle, articulated in Jill B. & Travis B. 

v. State,

 48 that “because the State has given only conditional 

consent to be sued and there is no absolute waiver of immunity by the State, requirements of the [STCA] must be followed strictly.” The State argues this principle is incompatible 

with the doctrine of substantial compliance.

We agree that strictly following the requirements of the 

STCA, and any statute that purports to waive the sovereign 

immunity of the state or a political subdivision, 49 is a foundational principle in our sovereign immunity jurisprudence. 

But as we explain, we are not persuaded that this principle 

is offended by applying the substantial compliance doctrine 

to the content of presuit claims under either the PSTCA or 

the STCA.

The principle from Jill B. & Travis B. on which the State 

relies was not being applied to the content of presuit claims. 

Instead, in Jill B & Travis B., we were considering the 

applicability of exceptions to the State’s waiver of sovereign 

immunity for tort claims arising out of misrepresentation and 

deceit. 50 In that context, we emphasized the importance of 

strictly construing statutes that are in derogation of sovereign 

immunity. 51

The presuit claim procedures under the PSTCA and the 

STCA are not statutes in derogation of sovereign immunity, 

but, rather, they are administrative in nature, intended to give 

the government notice of a recent tort claim so it can investigate and, if appropriate, resolve the claim before suit is commenced. 52 Unlike statutes in derogation of sovereign immunity, 

48 Jill B. & Travis B., supra note 28, 297 Neb. at 69, 899 N.W.2d at 251-52.

49 Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019).

50 See § 81-8,219(4).

51 Jill B. & Travis B., supra note 28.

52 See, e.g., Cole, supra note 7; Chicago Lumber Co., supra note 10.
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the presuit claim procedures do not identify the particular tort 

claims for which the State has conditionally waived its sovereign immunity and consented to suit, 53 nor do they identify 

the tort claims the State has exempted from that waiver. 54

Instead, the presuit claim presentment requirements are procedural conditions precedent to commencing a tort action against 

the government in district court; they are not jurisdictional. 55

We see no incompatibility between our precedent that rules 

of strict construction must be applied to statutes in derogation 

of sovereign immunity and our precedent that the doctrine of 

substantial compliance may be applied to statutes governing 

the content of presuit notice requirements. 56 Indeed, given how 

some of the content requirements are described in the statutes 

and regulations, it is difficult to imagine how strict compliance 

could be utilized by courts if we were to require it.

Applying the substantial compliance doctrine to the general 

content provisions under the PSTCA was, in some respects, a 

practical necessity because there was no principled way for a 

court to determine whether a claimant had strictly complied 

with the general requirement in § 13-905 that a claim include 

“such other facts pertinent to the claim as are known to the 

claimant.” Similarly, under the STCA, we question how a court 

would go about determining whether a claimant has strictly 

complied with the State Claims Board’s regulation requiring 

that a claim include “such other information as is pertinent to 

the claim.” 57

But as our cases make clear, our application of the substantial compliance doctrine has been limited to a claim’s content, 

53 See, e.g., §§ 81-8,215 and 81-8,215.01.

54 See, e.g., § 81-8,219.

55 See Cole, supra note 7.

56 Accord Franklin v. City of Omaha, 230 Neb. 598, 432 N.W.2d 808 (1988) 

(acknowledging some states apply strict construction to all presuit claim 

requirements under their tort claims acts, but Nebraska does not).

57 Rule No. 12, supra note 15.
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and the doctrine is not applied to all of the presuit notice 

requirements. We still apply rules of strict construction when 

considering whether a presuit tort claim has complied with 

statutory timing requirements 58 and whether it has been served 

on the recipient described in the statute. 59

We therefore disagree with the State that applying the substantial compliance doctrine when analyzing the content of 

presuit tort claims under the PSTCA and the STCA is inconsistent with the well-settled principle that statutes in derogation 

of sovereign immunity must be strictly construed or with the 

principle that the “requirements of the [STCA] must be followed strictly.” 60

[9-11] We hold that when a question is raised about whether 

the content of a presuit tort claim complied with the manner 

in which the State Claims Board prescribed such claims to 

be filed, the substantial compliance doctrine may be applied 

under the STCA, just as it is applied under the PSTCA. And, 

consistent with what we have done under the PSTCA, the 

doctrine is limited to the content of the presuit claim and does 

not apply when such a claim is not filed with the statutorily 

authorized recipient 61 or when it is not filed in compliance 

with the statutory time limits. 62 Furthermore, application of 

the doctrine of substantial compliance under both the PSTCA 

and the STCA is confined to situations where the content of 

the presuit claim nevertheless satisfied the primary purpose of 

the presuit notice requirements by notifying the state or political subdivision about possible tort liability for a recent act or 

58 Big Crow, supra note 9; Schoemaker, supra note 44. See, also, State v. 

Saylor, 304 Neb. 779, 936 N.W.2d 924 (2020) (strictly construing STCA 

statute of limitation provisions).

59 Estate of McElwee, supra note 18; Willis, supra note 42.

60 Jill B. & Travis B., supra note 28, 297 Neb. at 69, 899 N.W.2d at 252.

61 See, e.g., Estate of McElwee, supra note 18; Willis, supra note 42.

62 See, e.g., Big Crow, supra note 9; Schoemaker, supra note 44.
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omission so it may investigate and make a decision whether to 

pay or defend the claim. 63

Having concluded the substantial compliance doctrine can 

apply to the content of claims under the STCA, we proceed 

to analyze whether Saylor’s claim was properly dismissed for 

failing to comply with the presuit presentment requirements 

under the STCA.

Content of Saylor’s Claim Forms 

Substantially Complied

As noted, the State argues that on all 16 of Saylor’s claim 

forms, his response to field No. 9 was insufficient in that it 

did not reference a dollar amount. Saylor responds that even 

though his answers were not stated in dollars, they nevertheless contained “all information called for” 64 on the standard 

form, and thus, they substantially complied with the provisions 

of § 81-8,212. Saylor also contends that on the record in this 

case, he could not have strictly complied with all the requirements of the State Claims Board.

We agree with Saylor that, in this case, there was no 

way he could have strictly complied with the “manner prescribed by the State Claims Board” 65 for filing his tort claims. 

This is so for at least two reasons. First, the specific claim 

form required by the regulations—the Board’s form entitled 

“Claim for Injury or Damage”—is not the same form currently 

being used by the Risk Manager—the “Tort & Miscellaneous 

Claim Form.” Consequently, there was no way the content of 

Saylor’s claims could have strictly complied with the regulation’s requirement that it “contain all information called for 

on the Board’s ‘Claim for Injury or Damage’ form.” 66 Second, 

the requirement under the regulations that the completed 

63 See, Cole, supra note 7; Chicago Lumber Co., supra note 10.

64 Rule No. 12, supra note 15.

65 § 81-8,212.

66 Rule No. 12, supra note 15.
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claim form be filed in triplicate with the secretary of the State 

Claims Board is not the same filing method as is required under 

either § 81-8,212 (which requires filing the claim “with the 

Risk Manager”) or under the Risk Manager’s standard operating procedures (which asks that the form be either emailed or 

mailed to the Risk Manager). Consequently, although Saylor 

filed his claims with the statutorily authorized recipient, there 

was no way he could have strictly complied with the statutory 

requirement that he do so “in the manner prescribed by the 

State Claims Board.” 67 The State’s briefing ignored the disparity between the Board’s adopted regulations and the Risk 

Manager’s standard operating procedures, but we agree with 

Saylor that, as a practical matter, this disparity prevents strict 

compliance with the statutory and regulatory requirements 

concerning the manner of filing a tort claim.

The question then is whether the content of Saylor’s 

tort claims substantially complied with the requirements of 

§ 81-8,212 and its related regulations prescribing the manner 

of filing such claims. We conclude that as to the challenged 

content, Saylor’s tort claims did substantially comply with the 

requirements of § 81-8,212 and afforded the State sufficient 

notice to satisfy the purpose of the presuit claim presentment 

requirement. 68

The State challenges the sufficiency of Saylor’s responses 

to only field No. 9 on the claim forms, which asks for the 

“Total Amount of Claim.” The State insists that the term 

“Amount” in this context necessarily requires the answer to 

be stated in terms of a dollar amount. But the claim form 

does not specify that a dollar amount must be provided, 

and the regulation governing the content of claims does not 

require that a dollar amount be provided. And to the extent 

the instructions in the Risk Manager’s operating procedures 

can fairly be understood to indicate that “Total Amount of 

67 § 81-8,212.

68 See Cole, supra note 7.
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Claim” should be stated in terms of dollars, those instructions 

do not have the force and effect of law. On this record, we 

find Saylor’s answer stating “[t]o be proven” substantially 

complied with the question asked in field No. 9.

That is particularly so where, as here, the tort claims were 

seeking general damages. The State’s singular focus on the 

answer to field No. 9 paints an incomplete picture of the 

State’s knowledge regarding the damages being sought, and it 

ignores altogether the additional information Saylor provided 

in the narrative sections of his claim forms, many of which 

stated that the various acts and omissions of the State caused 

him physical and emotional pain and suffering. So although 

it is true that Saylor did not, in either field No. 9 or in his 

narratives, place a specific dollar amount on his damages, his 

failure to do so is nevertheless consistent with the nature of 

his claims and the relief he sought.

Saylor’s tort claims were premised on assertions that the 

State had denied him (1) timely and adequate medical care, 

(2) the use of his personal property, and (3) access to his 

attorney. His claims generally stated that this conduct caused 

him physical and emotional pain and suffering. In light of the 

nature of Saylor’s claims, his answer that the total amount of 

his claim was “[t]o be proven” was entirely consistent with 

how we treat allegations of general damages. 69 It would be an 

odd result if we were to demand more specificity regarding 

general damages in a presuit tort claim than is required in the 

complaint once litigation is commenced.

Finally, we do not doubt the State’s assertion that knowing the specific dollar amount of a tort claim can make “a 

significant difference in terms of how the claim is processed 

and at what level.” 70 But given the nature of his claims and the 

69 See, e.g., Neb. Ct. R. Pldg. § 6-1108(a) (“[i]f the recovery of money be 

demanded, the amount of special damages shall be stated but the amount 

of general damages shall not be stated . . .”).

70 Brief for appellee at 6.
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damages he seeks, we cannot find that Saylor’s answer to field 

No. 9 caused the State any prejudice regarding its ability to 

investigate his claims or decide whether to settle them before 

litigation commenced. Indeed, the State’s frank admission 

during oral argument that it would have sufficed for Saylor to 

write any amount in field No. 9, even an “exorbitant” amount 

such as “$20 million,” belies its argument that a particular 

dollar amount was essential to the proper investigation and 

processing of his claims. Although the Risk Manager certainly 

has the prerogative to refuse to accept a tort claim form on the 

basis that it does not contain all of the information called for, 

that is not what happened here.

On this record, we reject the State’s contention that Saylor’s 

presuit tort claims were deficient because they did not state 

a specific dollar amount being sought as damages and that 

therefore, they were not filed “in the manner prescribed by the 

State Claims Board” as required by § 81-8,212. We instead 

find, as a matter of law, that the content of Saylor’s presuit 

tort claims in regard to damages substantially complied with 

the presuit notice provisions of § 81-8,212.

Given this disposition, we do not reach Saylor’s argument 

that the State waived his failure to comply with § 81-8,212 by 

accepting the forms when submitted.

CONCLUSION

Because the content of Saylor’s tort claims substantially 

complied with the requirements of § 81-8,212, the district 

court erred in granting summary judgment in favor of the 

State and dismissing his action. We therefore reverse the judgment in favor of the State and remand the matter for further 

proceedings.

Reversed and remanded for

further proceedings.

Heavican, C.J., and Papik and Freudenberg, JJ., not 

participating.