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KOMAR v. STATE

Cite as 299 Neb. 301

Stacey L. Komar, appellan

State of Nebraska et al., appell

___ N.W.2d ___

Filed March 16, 2018. No. S-16-127.

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s 

grant of a motion to dismiss on the pleadings is reviewed de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. 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.

3. Tort Claims Act: Limitations of Actions. Before suit can be filed 

under the State Tort Claims Act, a claimant must submit the claim in 

writing to the Risk Manager within 2 years after the claim accrued.

4. ____: ____. Generally speaking, a claimant cannot file suit under the 

State Tort Claims Act until the Risk Manager or State Claims Board 

makes a final disposition of the claim. However, if the board has not 

made final disposition of a claim after 6 months, the claimant is permitted to withdraw the claim and file suit.

5. ____: ____. The 2-year limitations period referenced in Neb. Rev. Stat. 

§ 81-8,227(1) (Reissue 2014) governs not just the time for submitting 

claims to the Risk Manager, but also the time for beginning suit under 

the State Tort Claims Act.

6. Tort Claims Act: Limitations of Actions: Notice. Under Neb. Rev. 

Stat. § 81-8,227(1) (Reissue 2014), the time to begin suit under the State 

Tort Claims Act shall be extended for a period of 6 months from the 

date of mailing of notice to the claimant by the Risk Manager or State 

Claims Board as to the final disposition of the claim or from the date 

of withdrawal of the claim under Neb. Rev. Stat. § 81-8,213 (Reissue 

2014) if the time to begin suit would otherwise expire before the end of 

such period.

Nebraska Supreme Court Online Library

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

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7. ____: ____: ____. Claimants who allow the State Claims Board to reach 

a decision must file suit on the claim within 2 years after the claim 

accrued, or within 6 months after the board mails notice of final disposition, whichever occurs later. On the other hand, claimants who withdraw 

their claim must file suit on the claim within 2 years after the claim 

accrued, or within 6 months after the first date on which the claim could 

have been withdrawn, whichever occurs later.

Petition for further review from the Court of Appeals, 

Pirtle, Bishop, and Arterburn, Judges, on appeal thereto 

the District Court for Douglas County, W. Russell Bow

Judge. Judgment of Court of Appeals affirmed.

Denise E. Frost, of Johnson & Mock, P.C., L.L.O., for 

appellant.

Brien M. Welch and John A. McWilliams, of Cassem, 

Tierney, Adams, Gotch & Douglas, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Funke, J

Stacy, 

This case involves a dispute over the calculation of the 

2-year statute of limitations under the State Tort Claims Act 

(STCA).1 The district court for Douglas County dismissed 

the action as time barred, and the Nebraska Court of Appeals 

affirmed.2 On further review, we agree the claim is time barred 

and affirm the dismissal.

BACKGROUND

According to the allegations of the complaint, on January 

15, 2013, Stacey L. Komar learned that an employee of the 

State of Nebraska had accessed her electronically stored medical records without her permission. Approximately 17 months 

1 See Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014).

2 Komar v. State, 24 Neb. App. 692, 897 N.W.2d 310 (2017).
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later, on June 27, 2014, Komar presented a tort claim to the Risk 

Manager for the State Claims Board alleging the employee had 

invaded her privacy by accessing her medical records without 

permission. Under the STCA, Komar had to present her claim 

to the Risk Manager as a prerequisite to bringing suit.3

Komar’s claim remained pending before the State Claims 

Board for more than 1 year without final disposition. On July 

14, 2015, she withdrew the claim. The next day, Komar filed 

a complaint in the Buffalo County District Court, alleging 

invasion of privacy and naming as defendants the State of 

Nebraska, the Board of Regents of the University of Nebraska, 

and Nebraska Medicine (collectively the State).

District Court A

The State moved to dismiss Komar’s complaint, arguing 

it was barred by the STCA statute of limitations set out in 

§ 81-8,227(1). That statute provides:

[E]very tort claim permitted under the [STCA] shall be 

forever barred unless within two years after such claim 

accrued the claim is made in writing to the Risk Manager 

in the manner provided by such act. The time to begin 

suit under such act shall be extended for a period of six 

months from the date of mailing of notice to the claimant by the Risk Manager or State Claims Board as to the 

final disposition of the claim or from the date of withdrawal of the claim under section 81-8,213 if the time 

to begin suit would otherwise expire before the end of 

such period.

This court has held that the 2-year limitations period referenced in § 81-8,227(1) governs not just the time for submitting claims to the Risk Manager, but also the time for beginning suit.4

3 See §§ 81-8,212 and 81-8,213.

4 Hullinger v. Board of Regents, 249 Neb. 868, 546 N.W.2d 779 (1996), 

overruled on other grounds, Collins v. State, 264 Neb. 267, 646 N.W.2d 

618 (2002).
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In analyzing the timeliness of Komar’s complaint, the district court found her claim accrued on January 15, 2013—the 

date she learned of the alleged invasion of privacy. It reasoned 

that under § 81-8,227(1), Komar had until January 15, 2015, to 

file her complaint, unless the 6-month extension applied. No 

party has disputed either the accrual date or this preliminary 

calculation of the applicable limitations period.

Komar claimed she was entitled to the 6-month extension under § 81-8,227(1) and argued the extension began 

to run on the date she actually withdrew her claim, so her 

complaint filed the next day would be timely. The State 

argued that under this court’s holdings in Coleman v. Chadron 

State College5 and Hullinger v. Board of Regents,

6

 the 

6-month extension began to run on the first day Komar could 

have withdrawn her claim, not on the date she actually withdrew it.

In both Coleman and Hullinger, this court held:

“[A] claimant who files a tort claim with the Risk Manager 

of the State Claims Board 18 months or more after his or 

her claim has accrued, but within the 2-year statute of 

limitations, has 6 months from the first day on which the 

claim may be withdrawn from the claims board in which 

to begin suit.”7

The district court found the first day Komar could have withdrawn her claim to begin suit was December 28, 2014, and, 

applying the rationale from Coleman and Hullinger, calculated 

that the last date on which Komar could timely have filed 

suit was June 28, 2015. Because she did not file suit until 

July 15, the district court dismissed her action as time barred. 

Komar appealed.

5 Coleman v. Chadron State College, 237 Neb. 491, 466 N.W.2d 526 (1991), 

overruled on other grounds, Collins, supra note 4.

6 Hullinger, supra note 4.

7 Id. at 871-72, 546 N.W.2d at 783 (emphasis supplied) (quoting Coleman, 

supra note 5).
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Court of Appea

The Court of Appeals affirmed.8 Like the district court, it 

reasoned Komar’s claim accrued on January 15, 2013, and 

she had 2 years thereafter to bring suit unless the 6-month filing extension of § 81-8,227(1) applied. In addressing whether 

Komar was entitled to the filing extension, the Court of 

Appeals reasoned:

Komar . . . filed her claim with the [Risk Manager] on 

June 27, 2014, a little more than 17 months after her 

claim accrued, but still within the 2-year statute of limitations. Pursuant to the language of § 81-8,213, Komar 

could have withdrawn her claim from the [State Claims] 

Board and filed her complaint in the district court as early 

as December 28, 2014. On December 28, there remained 

approximately 19 days before the expiration of the 2-year 

statute of limitations for Komar’s claim. If Komar had 

withdrawn her claim during these 19 days, she would 

have had an additional 6 months from the date of her 

withdrawal to file her complaint in the district court, pursuant to the language of § 81-8,227(1). However, Komar 

did not withdraw her claim from the Board until July 14, 

2015, almost 6 months after the 2-year statute of limitations had expired.9

Like the district court, the Court of Appeals calculated June 

28, 2015, was the last date on which Komar could timely have 

filed suit. Because she did not file suit until July 15, the Court 

of Appeals concluded Komar’s action was time barred and 

affirmed the district court’s dismissal.

Komar petitioned for further review, urging this court to 

overrule our holdings in Coleman and Hullinger and interpret 

§ 81-8,227(1) to authorize a 6-month filing extension that 

runs from the date a claim is actually withdrawn, rather than 

the first date on which the claim could have been withdrawn 

8 Komar, supra note 2.

9 Id. at 696, 897 N.W.2d at 313-14.
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under § 81-8,213. We granted further review to address the 

proper application and computation of the 6-month filing 

extension under this factual scenario.

ASSIGNMENT OF ERROR

On further review, Komar assigns several errors which we 

consolidate into one: The Court of Appeals erred in concluding 

her complaint was time barred under § 81-8,227(1).

STANDARD OF REVIEW

[1] A district court’s grant of a motion to dismiss on the 

pleadings is reviewed de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party.10

[2] 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.11

ANALYSIS

Statutory Backgr

[3,4] Tort claims against the State are governed by the 

STCA. Before suit can be filed under the STCA, a claimant 

must submit the claim in writing to the Risk Manager within 

2 years after the claim accrued.12 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.13

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

6 months, the claimant is permitted to withdraw the claim and 

file suit under the STCA.14

10 Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 

(2018).

11 Id.

12 § 81-8,227(1).

13 § 81-8,213.

14 Id.
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[5,6] The 2-year limitations period referenced in 

§ 81-8,227(1) governs not just the time for submitting claims 

to the Risk Manager, but also the time for beginning suit under 

the STCA.15 Under certain circumstances, the STCA provides 

a 6-month extension for beginning suit:

The time to begin suit under [the STCA] shall be extended 

for a period of six months from the date of mailing of 

notice to the claimant by the Risk Manager or State 

Claims Board as to the final disposition of the claim or 

from the date of withdrawal of the claim under section 

81-8,213 if the time to begin suit would otherwise expire 

before the end of such period.16

Overview of Case Prec

This court has had several opportunities to interpret and 

apply the 6-month filing extension of § 81-8,227(1). We have 

addressed its application when the State Claims Board makes 

a final disposition17 and when a claimant withdraws the claim 

to begin suit, as Komar did here.18

This court first interpreted § 81-8,227 in Coleman v. Chadron 

State College.

19 In that case, the tort claim was submitted to 

the State Claims Board 22 months after the cause of action 

accrued. Ten months later, the board had not made final disposition, so the claimant withdrew the claim and, a few weeks 

later, filed suit in district court. The district court dismissed the 

action as time barred, and the claimant appealed.

15 Hullinger, supra note 4.

16 § 81-8,227(1).

17 See, Collins, supra note 4, disapproved on other grounds, Geddes v. 

York County, 273 Neb. 271, 729 N.W.2d 661 (2007); Sharkey v. Board 

of Regents, 260 Neb. 166, 615 N.W.2d 889 (2000), abrogated on other 

grounds, A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 

N.W.2d 907 (2010).

18 See, Hullinger, supra note 4; Coleman, supra note 5.

19 Coleman, supra note 5.
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We observed that under § 81-8,227(1), the 2-year limitations period “shall be extended for a period of six months 

from . . . the date of withdrawal of the claim under section 

81-8,213 if the [2-year period] to begin suit would otherwise expire before the end of such period.” We provided an 

example of how the 6-month extension would work in a typical case:

If, for example, one filed his or her claim in the 17th 

month after the claim accrued and withdrew the claim in 

the 23rd month after it accrued, § 81-8,227 provides that 

he or she is given an additional 6 months in which to file 

suit, as the 2-year period of limitation would otherwise 

expire during the ensuing 6 months.20

In Coleman, the defendant argued the claimant was not entitled to the 6-month extension, because by the time the claimant 

withdrew his claim to file suit, the 2-year limitations period 

already had expired. This court recognized the “dilemma” 

confronted by those who submitted claims to the State Claims 

Board 18 months or more after their claim accrued, but within 

the 2-year limitations period.21 We described these claimants as “fourth quarter” claimants,22 and we observed that the 

interplay between §§ 81-8,213 and 81-8,277(1) presented a 

predicament for such claimants:

The source of [the claimant’s] predicament is 

§ 81-8,213. As stated, that section mandates that before 

suit may be filed in court, a claim may not be withdrawn 

from the State Claims Board for at least 6 months. In 

order to comply with § 81-8,213, [the claimant], who 

filed his claim with the board in the 22d month after his 

claim accrued, was prevented from filing his lawsuit in 

the district court before the 24-month statute of limitations ran. In essence, one statute prevents filing of a 

20 Id. at 499, 466 N.W.2d at 532.

21 Id. at 500, 466 N.W.2d at 532.

22 Id. at 501, 466 N.W.2d at 533.
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claim in court and another requires filing of that same 

claim in court. This appears to be a classic example 

of the “right hand not knowing what the left hand 

is doing.”23

We applied the statutory rule of construction that a court will, 

if possible, avoid construing a statute in a way that leads to 

absurd, unjust, or unconscionable results,24 and we held:

A statutory scheme which precludes one from withdrawing a claim from the State Claims Board and thereby 

prevents that person from filing suit before the statute of 

limitations runs leads to absurd, unjust, or unconscionable results. We, therefore, hold that a claimant who 

files a tort claim with the Risk Manager of the State 

Claims Board 18 months or more after his or her claim 

has accrued, but within the 2-year statute of limitations, 

has 6 months from the first day on which the claim 

may be withdrawn from the claims board in which 

to begin suit. This interpretation ensures that effect is 

given to the legislative intent embodied in §§ 81-8,213 

and 81-8,227 and that both are applied in a consistent 

and commonsense fashion. Furthermore, fourth-quarter 

claimants are given the same opportunity as those who 

file earlier to withdraw their claim and file suit within 6 

months thereafter.25

Because the claimant in Coleman filed his lawsuit within 6 

months after the first day on which he could have withdrawn 

his claim, we found the 6-month extension applied to render 

his lawsuit timely.

Five years later, in Hullinger v. Board of Regents,

26 we 

applied the same rule to a different factual scenario. The 

23 Id. at 499, 466 N.W.2d at 532.

24 See, Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014); In re Boundaries 

of McCook P.P. Dist., 217 Neb. 11, 347 N.W.2d 554 (1984).

25 Coleman, supra note 5, 237 Neb. at 501, 466 N.W.2d at 533. 

26 Hullinger, supra note 4.
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claimant in Hullinger submitted his claim to the State Claims 

Board just 2 days before the end of the 2-year limitations 

period. He let the claim pend for more than a year before he 

withdrew it, and 51⁄2 months later, he filed suit in district court. 

We reiterated the rule, announced in Coleman, that fourthquarter claimants have 6 months from the date the claim 

first could have been withdrawn from the board in which to 

begin suit.

But unlike the claimant in Coleman, we found that by the 

time the claimant in Hullinger withdrew his claim and filed 

suit, the 6-month extension period had already expired. The 

claimant in Hullinger urged an interpretation of § 81-8,227(1) 

that would allow claimants to withdraw a claim at any point 

after the 6-month repose period and still receive an additional 

6 months after withdrawal to begin suit. We rejected that interpretation as inconsistent with Coleman and contrary to the 

purposes of a statute of limitations. We noted such a construction would effectively allow claimants to extend the 2-year 

limitations period for as long as they wanted and then receive 

an additional 6 months to file suit once they finally withdrew 

the claim. We observed that “[t]he mischief which a statute 

of limitations is intended to remedy is general inconvenience 

resulting from delay in assertion of a legal right which it is 

practicable to assert.”27

In Sharkey v. Board of Regents,

28 we again considered the 

applicability of the 6-month extension under § 81-8,822(1). In 

that case, the claimants’ cause of action accrued on October 

6, 1993. The claimants submitted their first claim to the State 

Claims Board on February 15, 1994, and received notice of the 

board’s denial roughly 4 months later on June 13, 1994. They 

submitted a second claim on January 24, 1995, and that claim 

was denied on June 2, 1995. Thereafter, the claimants filed suit 

on their claims in district court on September 20, 1995.

27 Id. at 873, 546 N.W.2d at 784.

28 Sharkey, supra note 17.
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Although suit had been filed within 2 years of the date the 

claim accrued, the district court dismissed the suit as untimely, 

reasoning the claimants had not begun suit within 6 months 

after receiving notice that their first claim had been denied. We 

noted that the rule announced in Coleman was an extension 

of time in which to bring suit, not a limitation as the district 

court concluded. Because the claimants in Sharkey had filed 

suit within 2 years of the accrual of their claim, we held their 

suit was timely, and the 6-month extension under § 81-8,227(1) 

was inapplicable.

And finally, in Collins v. State,

29 we had the opportunity to 

consider how the 6-month extension under § 81-8,227(1) is 

calculated when a claimant elects not to withdraw the claim 

after 6 months and instead waits for the State Claims Board 

to make a final disposition. The claimant in Collins submitted her claim to the board 6 days before the 2-year limitations 

period expired. More than 7 months later, the board rejected 

the claim. The claimant in Collins filed suit on the claim just 

over 5 months later. The district court applied the reasoning of Coleman and Hullinger, and found the suit was time 

barred because it had been filed more than 6 months after 

the first date on which the claim could have been withdrawn. 

On appeal, we explained that our holdings in Coleman and 

Hullinger do not apply when a claimant allows the board to 

reach a decision:

Under the plain language of § 81-8,227, a claimant 

has 6 months to file suit after notice of the denial of the 

claim is mailed by the claims board. The reasoning of 

Coleman and Hullinger does not apply to claims that are 

decided by the claims board. Accordingly, we hold that 

a claimant who files a tort claim with the Risk Manager 

of the State Claims Board 18 months or more after his 

or her claim has accrued, but within 2 years as provided 

by § 81-8,227(1), has 6 months to file suit from the date 

29 Collins, supra note 4.
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the board gives written notice to the claimant as to the 

final disposition of the claim. . . . Because [the claimant] 

filed suit within 6 months after the claims board denied 

her claim, her suit was not time barred.30

[7] These cases illustrate the following general rules for calculating the statute of limitations under the STCA. Claimants 

who allow the State Claims Board to reach a decision must 

file suit on the claim within 2 years after the claim accrued, or 

within 6 months after the board mails notice of final disposition, whichever occurs later.31 On the other hand, claimants 

who withdraw their claim must file suit on the claim within 2 

years after the claim accrued, or within 6 months after the first 

date on which the claim could have been withdrawn, whichever 

occurs later.32

Komar’s Action Is Time

Applying these principles to the present case, we agree 

with the district court and the Court of Appeals that Komar’s 

suit is time barred. Komar’s claim accrued on January 15, 

2013. She filed her claim with the Risk Manager for the State 

Claims Board on June 27, 2014, a little more than 17 months 

after it accrued and well within the 2-year statute of limitations. Section 81-8,213 prevented Komar from withdrawing 

her claim for a period of 6 months.

Nebraska has a statutory rule for computing time,33 and we 

have held this rule governs time calculations of the 6-month 

time period under the STCA.34 As such, the 6-month period 

is computed by excluding the day the claim was filed, and 

including the last day of the period unless it falls on a 

30 Id. at 272, 646 N.W.2d at 621.

31 Id.; Sharkey, supra note 17.

32 See, Hullinger, supra note 4; Coleman, supra note 5.

33 See Neb. Rev. Stat. § 25-2221 (Reissue 2016).

34 See Geddes, supra note 17.
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Saturday, Sunday, or a day on which the courts of record may 

legally be closed, in which event the period shall run until 

the end of the next day on which the courts of record will be 

open.35 Using this computation, the district court and Court of 

Appeals found the first day on which Komar could have withdrawn her claim was December 28, 2014. However, because 

that date fell on a Sunday, the first date on which Komar 

could have withdrawn her claim was actually December 

29, 2014.

If Komar had withdrawn her claim on December 29, 2014, 

she would have been entitled to the 6-month filing extension 

under the plain language of § 81-8,227(1), because the 2-year 

statute of limitations would otherwise have expired during the 

ensuing 6-month period. Indeed, the typical factual scenario 

Justice Fahrnbruch described in Coleman in 1991 is precisely 

how the 6-month extension would have functioned in the present case if Komar had withdrawn her claim on the first date 

allowed by § 81-8,213.

But Komar did not withdraw her claim until much later, 

on July 14, 2015, and did not file suit until July 15. By that 

time, the 2-year statute of limitations had expired, as had the 

6-month extension under § 81-8,227. The district court and 

Court of Appeals correctly found this action was time barred.

Komar urges this court to overrule our holdings in Coleman 

and Hullinger, and instead interpret § 81-8,227(1) to authorize a 6-month filing extension that runs from the date a claim 

is actually withdrawn, rather than the first date on which the 

claim could have been withdrawn under § 81-8,213. For the 

same reasons we rejected this interpretation in Hullinger, 

we reject it here. Such a construction would allow claimants to extend the 2-year limitations period for as long as 

they wanted and then receive an additional 6 months to file 

suit once they finally withdrew the claim. In addition, the 

35 Id.
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expansive interpretation urged by Komar runs contrary to the 

settled rule that statutes purporting to waive the State’s protection of sovereign immunity are strictly construed in favor 

of the sovereign.36

CONCLUSION

For the foregoing reasons, we affirm the decision of the 

Court of Appeals.

Affirmed

Kelch, J., not participating in the decisi

Wright, J., not participating.

36 See Amend, supra note 10.