81-8,227. Tort claim; limitation of action.

(1) Except as provided in subsection (2) of this section, every tort claim permitted under the State Tort Claims Act 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.

(2) The date of a qualifying pardon from the Board of Pardons, a final order by a court vacating a conviction, or a conviction that was reversed and remanded for a new trial and no subsequent conviction was obtained, whichever is later, shall be the date the claimant's claim shall accrue under the Nebraska Claims for Wrongful Conviction and Imprisonment Act for purposes of complying with the notice and filing requirements of the State Tort Claims Act. The Nebraska Claims for Wrongful Conviction and Imprisonment Act applies to a claimant who would have had a claim if the act had been in effect before August 30, 2009, or who has a claim on or after such date. If a claimant had a qualifying pardon from the Board of Pardons, a final order by a court vacating a conviction, or a conviction that was reversed and remanded for a new trial and no subsequent conviction was obtained, before August 30, 2009, the claimant's claim shall accrue under the Nebraska Claims for Wrongful Conviction and Imprisonment Act on August 30, 2009, for purposes of complying with the notice and filing requirements of the State Tort Claims Act.

(3) If a claim is made or filed under any other law of this state and a determination is made by a state agency or court that the State Tort Claims Act provides the exclusive remedy for the claim, the time to make a claim and begin suit under such act shall be extended for a period of six months from the date of the court order making such determination or the date of mailing of notice to the claimant of such determination by a state agency if the time to make the claim and to begin suit under such act would otherwise expire before the end of such period. The time to begin a suit under such act may be further extended as provided in subsection (1) of this section.

(4) If a claim is brought under the Nebraska Hospital-Medical Liability Act, the filing of a request for review under section 44-2840 shall extend the time to begin suit under the State Tort Claims Act an additional ninety days following the issuance of the opinion by the medical review panel if the time to begin suit under the State Tort Claims Act would otherwise expire before the end of such ninety-day period.

(5) This section and section 25-213 shall constitute the only statutes of limitations applicable to the State Tort Claims Act.

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Cross References

Annotations

The 6-month filing extension in this section runs from the first date on which the claim could have been withdrawn under section 81-8,213, not the date the claim is actually withdrawn. Komar v. State, 299 Neb. 301, 908 N.W.2d 610 (2018).

The beneficence of the discovery rule is not bestowed on a potential plaintiff where the potential plaintiff in fact discovers, or in the exercise of reasonable diligence should have discovered, an injury within the initial period of limitations running from the wrongful act or omission. Carruth v. State, 271 Neb. 433, 712 N.W.2d 575 (2006).

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 in subsection (1) of this section, has 6 months to file suit from the date the board gives written notice to the claimant as to the final disposition of the claim. Collins v. State, 264 Neb. 267, 646 N.W.2d 618 (2002).

The discovery rule is applicable to the State Tort Claims Act, and in a case in which the plaintiff cannot reasonably become aware of the injury at the time of the act or omission, the discovery rule applies, and the period of limitations under the State Tort Claims Act begins to run when a potential plaintiff discovers, or in the exercise of reasonable diligence should discover, the existence of the injury. Shlien v. Board of Regents, 263 Neb. 465, 640 N.W.2d 643 (2002).

The 6-month time period contained in subsection (1) of this section is an extension of time, not a limitation, in those instances where the claimant has filed a so-called fourth-quarter claim. A claimant who files a tort claim with 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 date of mailing of notice by the board as to the final disposition of the claim or from the date of withdrawal of the claim, in which to begin suit. Sharkey v. Board of Regents of Univ. of Neb., 260 Neb. 166, 615 N.W.2d 889 (2000).

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. There is nothing in the State Tort Claims Act which contemplates the tolling of the limitations period or the granting of an extension of the limitations period because the claims board has set a date for hearing. Hullinger v. Board of Regents, 249 Neb. 868, 546 N.W.2d 779 (1996).

The language "time to begin suit" as used in this section means 2 years. Coleman v. Chadron State College, 237 Neb. 491, 466 N.W.2d 526 (1991).

A claimant who files a tort claim with the risk manager of the State Claims Board prior to 18 months after the claim has accrued and who, as a result, could have withdrawn a claim from the board prior to the expiration of the 2-year statute of limitations should be given an additional 6 months from the time the claimant could have withdrawn the claim from the board, rather than an additional 6 months from the time the claimant actually withdrew the claim, to file a complaint in the district court. A claimant cannot delay the expiration of the statute of limitations by choosing to delay the withdrawal of a claim from the board. Komar v. State, 24 Neb. App. 692, 897 N.W.2d 310 (2017).