Another notice-of-claim case.

Plaintiffs sued the State because of a one-car accident, alleging a defect in the road. The State said they hadn’t filed a notice of claim; they said they had and produced a notice of service saying they’d sent it in. The trial court dismissed the case and CA1 upheld it, saying that mailing isn’t good enough; the Supreme Court reversed, over the lengthy dissent of Justices McGregor and Berch, holding that mailing is good enough and, using the delivery rule, that whether Plaintiffs had served a notice was a question of fact.

But in a footnote the court expressly refused to say whether the question should be decided by judge or jury because the parties hadn’t raised the issue below. Someone at the court apparently had, though, because the footnote went on to cite law that the trial judge can decide jurisdictional facts but that a notice of claim issue is not jurisdictional.

So the case went back to the trial court to decide that issue, the parties citing the cases cited by the footnote. The court decided that it could decide the facts and decided them in the State’s favor, dismissing again. Plaintiffs appealed again.

Division One held that the jury must decide the question. The notice-of-claim requirement is procedural, not jurisdictional. It is an affirmative defense, not a “preliminary question” under Rule 104. The opinion agrees that the issue should be decided quickly, though, and so should be the subject of a separate trial which will, after all, “likely be no more than a one or two day jury trial.”

Well, yes, but what planet does he live on? Has he forgotten how things work down here at ground level? Call the superior court and see how soon you can get that “no more than one or two day jury trial.” The practical effect will be to expedite trial on the notice-of-claim issue not at all and to delay trial on the merits by many extra months, which is just fine by the State.

(link to opinion)