No. 14538 INTHE SUPREPIF, Cr)UHT OF THE STATEOF I'XN'I'ANA

W3N S. NELSON, Plaintiff andAppellant,



## ~~BRIDGES HIGH SCHOOL,TWINERJDQS, MJNTANA; SCHOOLDISTRICTNO. 7, Stateof mntana, Defendantsand Wspondents.

Appeal fm: DistrictCourtof the FifthJudicialDistrict, HonorableFrankE. Blair, Judgepresiding. Counsel of Record: ForAppellant: Harlen, Norris and Picotte, Helena, Mntana CarterN. Picotte argued, Helena, hbntana ForWpondents: CoretteSmith, Dean, Pohlman, andAllen, Butte, Mmkana R. D. Corette, Jr., argued, Butte, mntana

S*tted: March 21, 1979 

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## 19: jMr. 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 DistrictNo. 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 "theproper officials of defendants" on March 3, 1977. No compensationwas 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 againstpersonal 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 iswhether 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 actionwas filed about 3-1/2 years after the alleged injury and about 8months 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, (sincerepealed 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 

# . .."1972Mont. 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 129days 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, (sincerepealed by Sec. 12,Ch. 360, Laws 1977). In 1975,this Court held the 120day claim requirementunconstitutional where a party sought to impose liability on the state. No11 v. City of Bozeman (1975), 166 Mont. 504, 534 P.2d880. By implication,No11 also struck down the claim requirement, applicable to actions against local governments. TheNo11 decisionwas based on our constructionof the intent of the framers of the constitution "topreclude limitationsupon 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. 

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# . . .A true statute of limitation establishes a time period within which suitmust be brought.

(Citationomitted.) Its object is to suppress stale and fraudulent claims after the facts concerning them have become obscure from lapse of time,defectivememory, 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 statutewas cited as section 82-4317, R.C.M. 1947: "Every claim against a governmental entity permitted under the provisions of this act shall be foreverbarred unless an action isbegun 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 clearlywithin section 82-4317 as the suit was commenced within 8months 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 anytime 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)

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# . , 568 P.2d 142, 34 St.Rep. 879, not from the date the claim is filed. We note that the statute of limitationson 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 limitationson 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