No. 14538 

IN THE SUPREPIF, Cr)UHT OF THE STATE OF I'XN'I'ANA 

W3N S. NELSON, 

Plaintiff and Appellant, 

~~ BRIDGES HIGH SCHOOL, TWIN ERJDQS, 

MJNTANA; SCHOOL DISTRICT NO. 7, 

State of mntana, 

Defendants and Wspondents. 

Appeal fm: District Court of the Fifth Judicial District, 

Honorable Frank E. Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

Harlen, Norris and Picotte, Helena, Mntana 

Carter N. Picotte argued, Helena, hbntana 

For Wpondents : 

Corette Smith, Dean, Pohlman, and Allen, Butte, Mmkana 

R. D. Corette, Jr., argued, Butte, mntana 

S*tted: March 21, 1979 

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~ecided APR 1 ; 19: j 
Mr. Chief Justice Frank I. Haswell delivered the opinion of the 

Court. 

Plaintiff appeals from a summary judgment against him 

in the District Court of Madison County. 

Plaintiff Ron S. Nelson filed an action for damages 

against Twin Bridges High School and School District No. 7 for 

personal injuries allegedly suffered during a student-faculty 

basketball game at Twin Bridges High School on April 29, 1974. 

The game was part of an intra-mural program and plaintiff's 

participation was voluntary. Plaintiff claims that during the 

game he was violently hit from behind, knocked to the floor and 

suffered extensive and permanent injuries to his right knee. 

Plaintiff alleges that he filed a claim for damages with 

"the proper officials of defendants" on March 3, 1977. No compensation was paid by defendants. On October 31, 1977, plaintiff 

filed suit against them in the District Court, seeking damages 

for his alleged injuries. Defendants' amended answer alleged 

the action was barred by the three-year statute of limitations. 

The ~istrict Court granted summary judgment to defendants 

on the ground that plaintiff's action was barred by the statute 

of limitations, citing the three-year statute of limitations 

against personal injury actions, section 93-2605(3), R.C.M. 1947, 

now section 27-2-202 MCA, and the two-year statute of limitations 

applicable to claims against the state and its political subdivisions, section 82-4312, R.C.M. 1947, now section 2-9-301(2) MCA. 

The sole issue on appeal is whether plaintiff's action is 

barred by the statute of limitations. Whether the two-year or 

three-year statute of limitations applies is immaterial as plaintiff's action is either barred or permissible under either statute. 

Here the action was filed about 3-1/2 years after the alleged injury and about 8 months after the alleged presentation of the claim 

to defendants. 
The gist of plaintiff's contention is that the statute 

of limitations is no bar because his action was filed within 8 

months after presentation of his claim to the defendants. He 

cites sections 82-4316 and 82-4317, R.C.M. 1947, (since repealed 

by Sec. 12, Ch. 360, Laws 1977), providing that an injured party 

can file a civil suit for damages within two years of filing 

his claim with the political subdivision, here the High School 

and the School District. He contends that the statute of limitations begins to run at the time the claim is presented to the 

School District and High School. 

Although this case is relatively simple on its facts, it 

is complicated by changes in the laws respecting statutes of 

limitation as applied to personal injury claims against state and 

local governmental subdivisions. The 1972 Montana Constitution 

abolished sovereign immunity by providing: 

"The state, counties, cities, towns, and all 

other local governmental entities shall have 

no immunity from suit for injury to a person 

or property . . ." 1972 Mont. Const., Art. 11, 

518. 

Thereafter in 1973, the legislature enacted the Montana 

Tort Claims Act. Ch. 380, Laws of 1973, codified as section 

82-4301 et seq., R.C.M. 1947, now section 2-9-101 et seq. MCA. 

This act required a claim to be filed with the proper governmental 

unit within 129 days of the injury before suing the state or one 

of its political subdivisions. Sections 82-4311, 82-4312, R.C.M. 

1947, now sections 2-9-301(1), 2-9-301(2) MCA. If the claim was 

not paid, an injured party could commence a civil suit for damages 

within two years of the filing of the claim. Sections 82-4316, 

82-4317, R.C.M. 1947, (since repealed by Sec. 12, Ch. 360, Laws 

1977). 

In 1975, this Court held the 120 day claim requirement unconstitutional where a party sought to impose liability on the 

state. No11 v. City of Bozeman (1975), 166 Mont. 504, 534 P.2d 
880. By implication, No11 also struck down the claim requirement, applicable to actions against local governments. 

The No11 decision was based on our construction of the 

intent of the framers of the constitution "to preclude limitations upon the waiver of sovereign immunity." No11 at 508. 

We noted that the power of the legislature to enact statutes of 

limitation governing tort claims against the state had not been 

affected. No11 at 508. 

" . . . A true statute of limitation establishes 

a time period within which suit must be brought. 

(Citation omitted.) Its object is to suppress 

stale and fraudulent claims after the facts concerning them have become obscure from lapse of 

time, defective memory, or death or removal of 

witnesses. Eby v. City of Lewistown [1918], 55 

Mont. 113, 173 P. 1163." No11 at 509. 

We held that the 120 day claim requirement did not meet this test 

and was an unconstitutional limitation of actions. The applicable statute was cited as section 82-4317, R.C.M. 1947: "Every 

claim against a governmental entity permitted under the provisions 

of this act shall be forever barred unless an action is begun 

within two (2) years after the claim is filed with the governmental entity." 

Plaintiff argues that No11 struck down the 120 day requirement but did not affect the requirement that a claim be filed. 

He concludes that because the statute of limitation is made operative on the filing of a claim, an injured party may bring a civil 

suit for damages against a governmental entity any time within 

two years of filing. Thus, plaintiff argues, he is clearly within section 82-4317 as the suit was commenced within 8 months of 

the filing of the claim with defendants. 

If plaintiff's interpretation is correct, the result 

would effectively nullify the purpose of any statute of limitations. There would be no limitation on when the claim could be 

filed. The state or a political subdivision could be sued at any 
time in the future at the option of the plaintiff, simply by 

delaying presentation of a claim against the state or one of its 

political subdivisions. 

No11 strikes down the same requirement as a condition 

precedent or a limitation on an injured party's right to sue 

a governmental entity. Until the legislature, by a two-thirds 

vote of each house provides such a requirement, it is no part 

of Montana's law. 1972 Montana Constitution, Art. 11, S18, 

amended effective July 1, 1975. The statute of limitation begins 

to run from the date the cause of action accrues, Cassidy v. 

Finley (1977) , Mont . , 568 P.2d 142, 34 St.Rep. 879, not 

from the date the claim is filed. 

We note that the statute of limitations on actions 

against governmental units has since been amended to provide for 

a three-year statute of limitations. Sec. 7, Ch. 360, Laws 1977, 

codified as section 82-4312.1, R.C.M. 1947, now section 2-9-302 MCA. 

The statute of limitations on personal injury actions remains at 

three years. Section 93-2605(3), R.C.M. 1947, now section 27-2- 

202(3) MCA. This should eliminate such problems in the future. 

Affirmed. 

Justices 4 

Chief Justice