Cite as Abraham v. Lusangulira ,
6 FSM Intrm. 423 (Pohnpei 1994)

[6 FSM Intrm. 423]






Andon L. Amaraich
Associate Justice

Hearing:  February 22, 1994
Decided:  June 8, 1994

For the Plaintiffs:        Delson Ehmes, Esq.
                                     P.O. Box 1018
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Richard L. Counts, Esq.
                                     Assistant Attorney General
                                     Office of the Pohnpei Attorney General
                                     Kolonia, Pohnpei FM 96941

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Statutes of Limitation
     Under section 24(1) of the Pohnpei Government Liability Act of 1991, the statute of limitations on a cause of action brought pursuant to the Act is not suspended during the period of

[6 FSM Intrm. 424]

administrative review required by the statute.  Abraham v. Lusangulira, 6 FSM Intrm. 423, 425 (Pon. 1994).

Administrative Law
     Where a state law contains potentially conflicting provisions regarding administrative procedures claimants must follow, the decision of a claimant to follow one provision but not the other so as to preserve her right to bring suit on a claim is reasonable and does not constitute a basis for dismissing the action.  Abraham v. Lusangulira, 6 FSM Intrm. 423, 425-26 (Pon. 1994).

Administrative Law
     It is incumbent on parties to follow administrative procedures concerning their disputes as designated by applicable state law before coming to court unless and until the state law is judged invalid.  Abraham v. Lusangulira, 6 FSM Intrm. 423, 426 (Pon. 1994).

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ANDON L. AMARAICH, Associate Justice:
     Pending in this matter is a motion by defendants to strike the complaint or in the alternative to dismiss the action.  The motion is denied at this time for the reasons discussed below.  The Court on its own motion orders a stay of further proceedings in this matter to allow for completion of the administrative review process as set forth in Pohnpei S.L. No. 2L-192-91.

Memorandum of Decision
     This case involves claims of negligence, wrongful death and violation of civil rights resulting from the death of David Abraham, a citizen of Pohnpei.  Mr. Abraham died in Pohnpei State Hospital on July 4, 1992.  The plaintiff, decedents's wife, filed an initial complaint against Pohnpei State Hospital and hospital personnel on July 5, 1993.  Prior to filing the complaint plaintiff's attorney wrote to the Director of Health Services on June 29, 1993 presenting plaintiff's claim for administrative review.  On August 19, 1993 plaintiff filed a second complaint naming Pohnpei State as a defendant.  The two complaints were consolidated by order of this Court on January 7, 1994.

     The basis of defendants' motion to strike the complaint or dismiss the action is plaintiff's failure to comply with the Pohnpei Government Liability Act of 1991, S.L. 2L-192-91 (hereinafter "Liability Act").  Defendants argue that pursuant to section 24(1) of the Liability Act, plaintiff could not initiate suit against the state or state employees unless she first filed a claim with the Department of Health Services and the claim was either denied in writing or not acted upon within fifty days.  In this case plaintiff filed suit only six days after notifying Health Services of her claim, and without receiving a final denial in writing from the agency.  Defendants also allege that plaintiff failed to comply with section 8(2) of the Liability Act, requiring service of an Advisement of Rights form approved by the State Attorney with service of the summons and complaint.

     Plaintiff counters that she could not wait fifty days after serving the demand letter on Health Services because her claims would then be barred by the one-year statute of limitations imposed by section 27 of the Liability Act.  Plaintiff also contends that the Liability Act itself is constitutionally suspect in that Pohnpei State may not legislatively extend sovereign immunity to all employees of the state, and that certain provisions of the Act are unconstitutionally vague.  Specifically, plaintiff

[6 FSM Intrm. 425]

argues, section 17 requires the court to issue a special verdict whether the action complained of was done within the scope of employment or public duty. If the court ultimately decides the action of the employee was not within the scope of duty or employment, plaintiff would be deprived of any claim against employees as individuals because the statute of limitations would have run. Regarding the Advisement of Rights form, plaintiff's counsel has stated he was not aware of the existence of any such form at the time this action was filed, and challenges whether any such form has been properly promulgated.

     The Court agrees with plaintiff that had she waited fifty days after presenting her claim to the state agency before filing her complaint, the action would be barred by section 27 of the Liability Act.  This section states:

     Statute of Limitations.  A lawsuit based on any of the claims described in Section 4 of this act, except claims for medical or dental malpractice, must be filed in a court of competent jurisdiction within two years from the date the cause of action arose, or the claim shall be forever barred.  Action based on medical or dental malpractice, must be filed in a court of competent jurisdiction within one year from the date the cause of action arose or the claim shall be forever barred.  For the purpose of this Section, a cause of action has arisen when all of the facts comprising said cause of action exist, regardless whether said facts are known or have been discovered by the claimant.

The cause of action in this case arose with the death of plaintiff's husband on July 4, 1992.  Since the plaintiff's action alleges medical malpractice, the applicable statute of limitations is one year from the date of death.  Therefore, under the Liability Act, Mrs. Abraham would have been barred from filing a lawsuit after July 5, 1993.

     The Court finds it curious that all of the State attorneys that have appeared thus far in this case have taken the view that section 24(1) of the Liability Act would have allowed plaintiff to wait out the full period of administrative review without running afoul of the statute of limitations.  Section 24(1) states:

     Disposition by the governmental agency.  (1) An action shall not be instituted upon a claim against the State or an employee acting within the scope of his or her public duties or employment unless the claimant shall have first presented the claim to the appropriate governmental agency and the claim shall have been finally denied by the agency in writing.  The administrative procedure heretofore or hereafter adopted by statute, if applicable, shall be followed.  If such statutory procedure has not been established or is not applicable, then the failure of the governmental agency to make a final disposition of a claim within fifty days after it is filed shall, at the claimant's option, be deemed a final denial of the claim for purposes of this Section.  The statute of limitations shall not toll during the period of administrative appeal and review.

(emphasis added).  The legal meaning of "toll" as a verb is "to suspend or stop temporarily."  Black's Law Dictionary 1334 (5th ed. 1979); 86 C.J.S. Toll at 910 n.84.5 (Supp. 1994).  Therefore, the plain meaning of the underlined final sentence above of section 24(1) is that the statute of limitations is not suspended during the period of administrative review but continues to run. Consequently a litigant who wishes to bring a claim against the state or state employees faces an impossible dilemma in attempting to comply with both section 24(1) and section 27 of the Act if

[6 FSM Intrm. 426]

the claim is presented less than fifty days prior to the expiration of one year from the date the cause of action arose.  Under these circumstances, it was not unreasonable for plaintiff in this case to have filed the complaint when she did in order to preserve her right to bring suit.

     This Court has stated its preference for adjudicating disputes on the merits and affording parties a reasonable opportunity to present their claims.  Paul v. Hedson, 6 FSM Intrm. 146, 147 (Pon. 1993); Truk Transp. Co. v. Trans Pacific Import Ltd., 3 FSM Intrm. 440, 443 (Truk 1988); Lonno v. Trust Territory (III), 1 FSM Intrm. 279, 281 (Kos. 1983).  In this instance while plaintiff clearly has not followed section 24(1) of the Liability Act, I find the lack of complete compliance justified given the language of section 27.  Concerning plaintiff's failure to serve the notice required by section 8(2), no authority has been cited to me warranting striking the complaint or dismissing the action on such grounds alone.

     The Court seeks to arrive at a result equitable to both parties concerning the issue of compliance with the Liability Act.  The plaintiff in this action has raised legitimate questions regarding interpretation of key provisions of the Act.  At the same time, it is incumbent on the plaintiff to follow administrative procedures designated by state law prior to coming to Court unless and until such law is judged invalid.  Administrative review aids in clarifying the issues and claims involved, and may render litigation unnecessary.  The Court notes that the Liability Act does not specify any time limit for seeking administrative review of a claim.1  I can see no prejudice to either party, therefore, in staying these proceedings to allow administrative review of this matter to resume. Although neither party has moved for such action, the Court orders this remedy under its authority to grant appropriate relief to which parties may be entitled and in the interests of fair administration of justice.  FSM Civ. R. 54(c); 4 F.S.M.C. 117.

     Because of my decision to stay this matter pending administrative review pursuant to S.L. 2L-192-91, I need not address plaintiff's arguments concerning the constitutional validity of the Liability Act.  I note, however, that upon completion of the administrative review process if the parties have not resolved their dispute, the Court may require that questions concerning the interpretation and constitutionality of certain provisions of the Act be certified to Pohnpei Supreme Court appellate division for decision.

     For the foregoing reasons the defendants' motion to strike the complaint or to dismiss the action is denied.
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1.  The statute of limitations in section 27 refers only to any "lawsuit" brought by a claimant.