Memo 16:

Procedures For Handling Tort Claims and Other Claims Submitted to School Districts

INTRODUCTION

This memorandum discusses California law on governmental claims, a brief description of claims time limits, received by the district, suggested processing for claims how to handle court papers served on the district, and a sample policy to establish uniform requirements for claims by the public.

The memorandum includes a set of sample forms to use when papers are served on the district. The forms are also available through Self-Insured Schools of California (SISC II), the system providing self-insured liability insurance coverage to most members of Schools Legal Service.

CALIFORNIA LAW

The California Government Code contains a basic “claims” statute setting up procedures, and hurdles, when the public wants to obtain money from a public entity by claim or lawsuit. The purposes of the claims statute are (1) to give notice to the governing board so that it can investigate the claim and determine facts in a timely manner, and (2) to avoid unnecessary lawsuits by giving districts the opportunity to settle meritorious claims without going through trial.

The State Tort Claims Act (Government Code §§900, et seq.) requires the public to file a claim with the governmental entity before any lawsuit can be started. While certain types of losses are not automatically subject to the claims filing requirement (under Government Code §905), your district can adopt a policy under Government Code §935 which expands the scope of claims which must meet the filing requirement. (See "Recommended Policy” below.)

CLAIMS TIME LIMITS

The claims statutes set up initial time limits and procedural hurdles for claimants. In general, claims stemming from death, personal injury, or property loss must be submitted to the district within six months of the event giving rise to the claim (Government Code §911.2). Late claims may also be filed through a complicated procedure. Claims on most other losses must be filed within one year. (Again, see “Recommended Policy” below to extend these time limits and procedures to all types of claims.)

If a timely claim is filed, or if an application for leave to present a claim is granted, the governing board then has no more than 45 days to act upon a claim. If no action is taken, a claim or application for leave to file a late claim is deemed denied by operation of law after 45 days.

Upon denial of a claim, plaintiff may seek redress in court.

PROCESSING THE CLAIM

Schools Legal Service and SISC II both recommend use of the attached standardized form letters. Districts which have their public liability coverage through other insurance carriers should consult those carriers about use of these or similar forms.

    1. Upon Receipt of a Claim.

    When you get a claim–or anything resembling a claim–you should refer the paperwork immediately to your insurance carrier using Letter A. A copy of the transmittal should be sent to Schools Legal Service. Important: The insurance carrier, not Schools Legal Service, makes the recommendation regarding your governing board’s decision on what action should be taken on the claim. Absent very unusual circumstances, the district should act in accordance with the carrier’s recommendation. This is because failure to follow the carrier’s suggestions could jeopardize coverage for the claim under the public liability insurance policy.

    2. Turndown of a Timely Claim.

    Letter B is sent out by your governing board after action to deny the claim. The carrier will tell you when to use this approach.

    Letter C, more typical than Letter B, applies when the governing board takes no action and the claimant is told that the claim is deemed rejected by operation of law.

    Note: When the claim is timely, you will always use either Letter B or C to reject the claim. Failure to send out a denial letter can extend certain statutes of limitation for filing lawsuits against the district. And in some cases, the clock on time limits will not start running again until the correct notice letter is sent.

    If the carrier tells you nothing within 45 days, contact Schools Legal Service by telephone at once.

    3. Technical Defects.

    Letter D returns a claim (or other paper) to a claimant due to a technical defect in the papers.

    4. Late Claims.

    When a late claim is submitted, the law and court cases contain stumbling blocks for claimants and unwary districts alike.

    Letter E rejects a late claim. Be careful to distinguish Letter E from Letters F and G.

    Letter F gives notice of the governing board's action taken on an application to file a late claim. Be careful to distinguish Letter F from Letters E and G.

    Letter G returns an application for leave to file a late claim because the application itself was filed too late. Be careful to distinguish Letter G from Letters E and F.

    Warning: There are certain situations where the insurance carrier will advise the district to issue multiple letters at the same time. For instance, the facts of a loss might arguably require both a rejection of claim (Letter B or C) and a denial of late claim (Letter E, F, or G).

    Letter H is a routine notice that an application to file a late claim has been granted.

WHAT TO DO WHEN YOU ARE SUED

Copies of any summons and complaint from the claimant/plaintiff should be sent immediately both to the insurance carrier and to Schools Legal Service. Ask the carrier to give you a written acknowledgment within 15 days that the carrier will provide a defense. Tell the carrier the date on which you received the papers. If no acknowledgment is received from the carrier, contact us at the end of the 15 days.

COPIES TO SCHOOLS LEGAL SERVICE

This office should be kept apprised of the status of each claim filed with your governing board. A good practice is to send us a copy of each claim, all correspondence, and any court papers or pleadings.

RECOMMENDED POLICY

The courts have recently recognized that districts may tighten up their claims exposure by adopting the policy authorized by Government Code §935. The policy expands the scope of matters which must meet the claims filing requirements. A sample policy text is attached.

If adopted, the policy would require that all money claims of any category (other than statutorily exempted wage claims) must first be filed with the governing board under the claims statute before a lawsuit may be filed. We urge adoption of this policy so as to make the procedures of this memo applicable to virtually all lawsuits for money damages.

Please contact this office when questions arise.

RECOMMENDED POLICY RELATING TO CLAIMS NORMALLY EXCEPTED BY GOVERNMENT CODE SECTION 905

Pursuant to Section 935 of the California Government Code, it is the policy of this board that all claims, including those enumerated and described in Section 905 of the Government Code (but excluding those expressly governed by other statutes or regulations), be presented and acted upon in accordance with Chapters I and II of Part 3 of Division 3.6 of Title I of the Government Code.

Also pursuant to Section 935 of the Government Code, it is the express policy of this board that presentation and action upon such claims in accordance with the above-cited Chapters I and II shall be a prerequisite to any suit thereon.

FORM LETTER A

[Letter to be sent to District's Liability Insurance Carrier, Insurance Agent, upon receipt of claim.]

[Date]

[Liability Insurance Carrier c/o Insurance Agent Address]

Re: Notice of Receipt of Claim

Dear ________________:

Enclosed for processing under the district’s insurance plan is a claim presented by ________________________ (name) on behalf of ____________________________ (name of client) and received by this district on _______________ (date).

Unless otherwise advised by you in writing, the governing board of the district will take no action on this claim, with the result that it will be denied by operation of law on the 45th day after it was received. In accordance with our standard practice, we will give notice of this denial to the claimant.

Very truly yours,

[Name and Title]

Enclosure cc: Schools Legal Service (for information only)

FORM LETTER B

(SISC Letter 1A)

[To be used only when a claim has been timely filed and you desire to inform the claimant that the board has rejected the claim.]

[Date]

[Name and Address as Set Forth in the Claim]

Re: Rejection of Claim

Dear ____________:

You are hereby notified that on _________________ (date), _________________ (the governing board of this district/this office) rejected your claim which was filed on _______________ (date), on behalf of _____________________(name of claimant).

The following information is provided to you as prescribed by Section 913 of the California Government Code:

WARNING

Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. (See Government Code Section 945.6.)

You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately.

Very truly yours,

[Name and Title]

cc: Schools Legal Service SISC II [or other liability insurance carrier]

FORM LETTER C

(SISC Letter 1B)

[To be used only when a claim has been timely filed and you desire to inform the claimant that the claim is deemed to be denied by operation of law.]

[Date]

[Name and Address as Set Forth in the Claim]

Re: Claim Rejected by Operation of Law

Dear ______________:

You are hereby notified that the claim which you presented to __________________ (this district/this office) on ___________________ (date), for alleged damages for the period of ________________ (dates), and currently, has been rejected by operation of law as of _______________________ (date).

The following information is provided to you as prescribed by Section 913 of the California Government Code:

WARNING

Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. (See Government Code section 945.6).

You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately.

Very truly yours,

[Name and Title]

cc: Schools Legal Service SISC II (or other liability insurance carrier)

FORM LETTER D

(SISC Letter No. 5)

[To be used only when a claim or an application to present a late claim is timely filed but is insufficient in its contents or signature. This notice must be sent within 20 days after the claim or application is presented.]

[Date]

[Name and Address as Set Forth in the Claim]

Re: Insufficient Claim or Application

Dear ________________:

You are hereby notified that your [claim/application for leave to present a late claim] which was filed on behalf of [name of claimant] on [date], fails to comply substantially with the requirements of law in 'that it does not provide the following:

1. _______________________________________________________________

2. _______________________________________________________________

3. _______________________________________________________________

4. _______________________________________________________________

5. _______________________________________________________________

6. _______________________________________________________________

Pursuant to Section 910.8 of the California Government Code, you have 15 days within which to correct these defects and/or omissions.

Very truly yours,

[Name and Title]

cc: Schools Legal Service SISC II [or other liability insurance carrier]

FORM LETTER E

(SISC Letter No. 6)

[To be used only when rejectinq a claim which has been filed late. This is the form prescribed by Government Code Section 911.3.]

[Date]

[Name and Address as Set Forth in the Claim]

Re: Late Claim

Dear ______________:

The claim you presented to [this district/this office] on [date], is being returned because it was not presented within six months after the event or occurrence as required by law. (See Sections 901 and 911.2 of the California Government Code). Because the claim was not presented within the time allowed by law, no action was taken on the claim.

Your only recourse at this time is to apply without delay to [name of public entity] for leave to present a late claim. (See Sections 911.4 to 912.2, inclusive, and Section 946.6 of the Government Code). Under some circumstances, leave to present a late claim will be granted. (See Section 911.6 of the Government Code).

You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately.

Very truly yours,

[Name and Title] Enclosure cc: Schools Legal Service SISC II [or other liability insurance carrier] [As modified by Ch. 1208, Stats. of 1987]

FORM LETTER F

(SISC Letter No. 4)

[To be used only when an application for leave to present a late claim has been filed in a timely manner (within one year after the accrual of the cause of action) and the application has been denied.]

Date]

[Name and Address as Set Forth in the Claim]

Re: Denial of Application for Leave to Present Late Claim

Dear ____________:

You are hereby notified that on [date], [the governing board of this district/this office] denied your application for leave to present a late claim which was filed on [date], on behalf of [name of claimant].

The following information is provided to you as prescribed by Section 911.8 of the California Government Code:

WARNING

If you wish to file a court action on this matter, you must first petition the appropriate court for an order relieving you from the provisions of Government Code Section 945.4 (claims presentation requirement). (See Government Code Section 945.6). Such petition must be filed with the court within six (6) months from the date your application for leave to present a late claim was denied.

You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately.

Very truly yours,

[Name and Title] cc: Schools Legal Service SISC II [or other liability insurance carrier]

FORM LETTER G

(SISC Letter No. 3)

(To be used only when an application for leave to present a late claim is not timely filed [not filed within one year after the accrual of the cause of action].)

[Date]

[Name and Address as Set Forth in the Claim]

Re: Denial of Application for Leave to Present a Late Claim; Application Not Timely Filed

Dear _________________:

You are hereby notified that on [date], [this district’s governing board/this office] denied your application for leave to present a late claim filed on behalf of [name of claimant] on [date], for the reason that the application was not filed in a timely manner as prescribed by Section 911.4 of the California Government Code.

Very truly yours,

[Name and Title]

cc: Schools Legal Service SISC II [or other liability insurance carrier]

FORM LETTER H

(SISC Letter No. 4)

(To be used only when an application for leave to present a late claim has been timely filed and has been granted.)

[Date]

[Name and Address as Set Forth in the Claim]

Re: Granting of Application for Leave to Present Late Claim

Dear _____________:

You are hereby notified that on [date], [this district's governing board/this office] granted your application for leave to present a late claim filed on behalf of [name of claimant] on [date].

[This district's governing board/This office] will consider your claim in the immediate future, and you will be notified of the action taken on your claim.

Very truly yours,

[Name and Title]

cc: Schools Legal Service SISC II [or other liability insurance carrier]



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