¶1 The dispostive issue presented is whether a letter sent to the OHP to request that it preserve evidence regarding an accident constituted the required statutory notice of a governmental tort claim. We hold that it did not.

FACTS

¶2 On May 30, 2021, the plaintiffs/appellants, Nikohl Ullman and Breanna Parsons (collectively plaintiffs), were traveling on a jet ski on Lake Murray, in Love County, Oklahoma. Allegedly, Trooper Brinson of the defendant/appellee, Oklahoma Highway Patrol (OHP), drove a boat which collided with the plaintiffs, injuring them.

¶3 Eighteen days later, William Kennedy, the plaintiffs' lawyer (Kennedy/lawyer), mailed a letter addressed to the OHP Legal Department dated June 17, 2021. The letter is stamped "RECEIVED JUN 22, 2021 LEGAL." The letter notes "WARNING CONCERNING SPOLIATION OF EVIDENCE & NOTICE OF CLAIMS." It identified the accident of May 30, 2021, between the plaintiffs and an unnamed trooper who apparently did not give any information to the plaintiffs. It states that, due to the nature of their injuries, "[t]his is likely going to lead to litigation." The injuries between the two plaintiffs are described as epilepsy, migraines, broken pelvis and hip, two fractured femurs, and other not fully diagnosed injuries. The letter requests information about insurance coverage, and admonishes OHP to preserve and maintain all potentially relevant records and documents, including videos, security footage, body cam, names of the troopers working on the lake, pictures, incident reports, and email correspondence relating to the accident.

¶4 Apparently OHP forwarded the letter to Tara Hubbard (Hubbard/OMES), Liability Advisor for the Risk Management Department, Division of Capital Assets Management of OMES, because she responded to Kennedy by email with letters for each plaintiff, dated June 24, 2021, acknowledging the June 22, 2021, receipt. The response informed Kennedy that OMES had determined his letter served as written notice of a tort claim under the Oklahoma Governmental Tort Claims Act (the Act), 51 O.S. 2021 §§151et. seq.

¶5 Hubbard's OMES response referred to the lawyer's preservation of evidence letter as "the claim of compensation you have tendered, asking for damages under" the Act. It notified Kennedy that the State had 90 days to review and evaluate the claim, and it requested some additional information such as HIPAA forms, medical records and bills, etc, which, according to Kennedy, had not yet been determined. It also stated that:

The supplemental information must be received on or before July 08, 2021, the date on which the 90 days will begin. If neither timely submission nor satisfactory explanation is made by this date, the claim will stand denied at the end of the expiration of 90 days from the date the information is due. The right to seek compensation in court may be restricted by the limitations period prescribed by law of one hundred eighty (180) days after the denial of the claim.

¶6 On August 12, 2021, Hubbard emailed Kennedy two additional letters stating that both claims were denied.

¶7 The record also includes a copy of a letter from Kennedy to Hubbard dated June 2, 2022, which was emailed and mailed. It stated:

I am in receipt of your letter dated June 1, 2022, stating that the claim was previously denied. Your correspondence from June 1, 2022, was sent by certified mail. How was the letter dated August 12, 2021 delivered? Do you have the certified mail receipt number? That "denial" was premature in that the information contained in our preservation of evidence letter sent on June 17, 2021, was insufficient in terms of a notice letter and was sent to ensure the preservation of evidence. The code requires a "valid notice" letter. The previous letter barely contained a basic description of the facts related to the preservation of evidence notice. Our contentions regarding your employee's negligent actions and why we believe him to be your employee were lacking. More importantly, there were no medical records, no calculation of damages, economic or otherwise, or really, any information whatsoever that would allow a complete examination of the claim which is the intent of requiring a valid notice letter. Our previous communication was intended to preserve evidence and was not a valid claim as the statute required.

The June 1, 2022, letter referenced above as a letter from Hubbard is not included in the record.

¶8 On October 3, 2022, the plaintiffs filed a lawsuit against the OHP in the District Court of Love County, Oklahoma. They asserted claims of negligence, and respondeat superior. The plaintiffs alleged that they notified the OHP

¶9 On November 4, 2022, the OHP filed a Motion to Dismiss, attaching records from OMES. The OHP attempted to establish that the plaintiffs failed to file suit within 180 days of August 12, 2021, the alleged denial of the claims by OMES. The OHP attachments included an affidavit of Hubbard, stating that: 1) OMES received tort claims filed by the plaintiffs on June 22, 2021; 2) OMES denied both claims on August 12, 2021; and 3) pursuant to the August 12, 2021, denial, the filing period to file a lawsuit expired on February 9, 2022.

¶10 On November 21, 2022, Kennedy responded to the Motion to Dismiss, stating that the purpose of the June 17, 2021, letter received June 22, 2021, sent only to the OHP, as stated, was to preserve any evidence related to the case. It was not intended to serve as the statutorily required notice of a governmental tort claim to OMES, nor did it in any way attempt to sufficiently fulfill statutory notice requirements.

¶11 Kennedy's letter also noted that the accident occurred on May 30, 2021, and there was no possible way, in less than three weeks, the extent of the plaintiffs' injuries could be determined, much less presented as a written claim for loss. Rather, the plaintiffs presented their actual notice of claim on May 27, 2022, when they explained the trooper's alleged negligence, itemized their medical expenses, made a statement as to a wage claim, provided a HIPAA release, and stated a full settlement amount which would be accepted. This notice was filed less than one year after the incident as allowed by the Act.

¶12 The trial court held a hearing on the Motion to Dismiss on January 19, 2023. On January 18, 2023, the OHP filed a brief arguing that the lawsuit was untimely because the plaintiffs' lawyer ignored their unilateral determination that his June 22, 2021, letter constituted the statutorily required notice. It also argued that Kennedy's May 2022, claim merely served as a "second" notice of the claim.

¶13 On February 10, 2023, the trial court filed an order memorializing its ruling in the January 19, 2023, hearing. It granted the OHP's Motion to Dismiss. On February 17, 2023, the plaintiffs filed a Motion for a New Trial, again arguing that they never filed a notice of claim with OMES in 2021. Instead, OMES used the preservation of evidence letter sent to the OHP against the plaintiffs to get their lawsuit dismissed.

¶14 After a hearing on the new trial motion on May 26, 2023, the trial court, on June 1, 2023, filed an order outlining its ruling. It determined that:

1) the June 17, 2021, correspondence was a claim contemplated by the Act;
2) the plaintiff had 180 days after denial [August 12, 2021] or until February 8, 2022;
3) an amendment cannot cure the defect;
4) the plaintiff's petition should be dismissed with prejudice.

Consequently, the court sustained the OHP's motion to dismiss, denied the plaintiffs' motion for new trial, and dismissed the cause. The plaintiffs appealed on July 3, 2023. The Court retained the appeal on July 18, 2023, and assigned it for an opinion on August 18, 2023.

THE LETTER SENT TO THE OHP TO REQUEST THAT IT
PRESERVE EVIDENCE REGARDING AN ACCIDENT DID NOT
CONSTITUTE THE REQUIRED STATUTORY NOTICE OF A
GOVERNMENTAL TORT CLAIM.

A.

Standard of Review

¶15 Generally, an abuse of discretion standard is used for appellate review of an order denying a motion for new trial.de novo standard.de novo.

B.

Preservation of Evidence Request.

¶16 Because the disputed issue concerns a preservation of evidence request, the nature and purpose of such requests are instrumental in resolving this cause. A litigant who is on notice that documents and information in its possession are relevant to litigation or potential litigation or are reasonably calculated to lead to the discovery of admissible evidence has a duty to preserve such evidence.

¶17 The repercussions of the failure to preserve evidence can be severe, not only in the criminal context, but regarding civil actions as well. When an accident occurs, an attorney neglecting to attempt to preserve evidence relevant to his or her client's claim could be subject to a malpractice lawsuit.

¶18 Preserved evidence might be necessary to not only prove a claim, but to determine whether a plaintiff might even have an action to bring at all. A request to preserve evidence is not in its own right notice that a lawsuit is certain to be filed. In this cause the letter does use a heading which included a warning against spoiling evidence and notice of claims, but the body of the letter clearly identifies it as an attempt by Kennedy to preserve evidence so that he could make determinations about whether tort claims existed and what the extent of damages might be if they did exist.

C.

Notice and The Act.

¶19 This cause is unusual because the plaintiffs argue that the letter was not intended to serve as notice of the claim, nor could it, because it did not meet the statutory requirements for notice. The OHP argues that the letter, even if it wasn't intended to serve as notice, was sufficient and Kennedy had the opportunity to object to it.

¶20 Notice of a claim is critical under the Act because the Act provides for the exclusive liability of a governmental entity for a tort claim.

¶21 A "claim" means any written demand presented by a claimant, or the claimant's representative, in accordance with the Act to recover money for the governmental entity's act or omission.

¶22 What must be included in a claim also depends on what the claimant is seeking. Title 51 O.S. 2021 §156

¶23 Although the failure to provide some details of the claim does not necessarily invalidate the entire claim, we have held that notice of claims must be substantially complied with to constitute the required statutory notice.

¶24 If the claim is for personal injuries, it must include the name and address of all health care providers who treated the claimant and a HIPAA compliant release form.

¶25 While the letter to preserve evidence included some of the required information, we cannot say it substantially complied with the statutory notice requirements. It was clearly not intended to serve as a notice to trigger the time constraints of the Act. It was not addressed or sent to OMES. It stated that a claim might be made, but that evidence must be preserved to make such an evaluation. Most of the information it was seeking was information necessary to determine if a legitimate claim even existed.

¶26 Furthermore, it did not state the name of the OHP officer who allegedly caused the accident. It provided no details about healthcare providers or the injuries sustained, other than to generally list some of them. It was sent so soon after the accident, the extent of the plaintiffs' injuries could not have been fully known. If the plaintiffs had been relying on the submission of the letter to be in substantial compliance with the Act, they would have been substantially unsuccessful. If the plaintiffs' lawyer had relied on the letter as notice of a tort claim, filed the lawsuit within 180 days after the August 2021 OMES "denial," the lawsuit could have been dismissed for ineffective notice of claim.

CONCLUSION

¶27 A letter which notifies a potential litigant to preserve evidence serves a purpose of preventing the destruction or alteration of evidence in order for a plaintiff to determine if an actionable claim exists. While such a letter may further a governmental entity's interest in promoting a prompt investigation, it must also contain language and information in accordance with the Act to constitute notice under the Act. The letter in this cause did not include enough language and information to substantially comply with the Act and constitute notice. The trial court is reversed and the cause remanded for further proceedings.

APPEAL PREVIOUSLY RETAINED;
TRIAL COURT REVERSED AND CAUSE REMANDED.

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