Opinion
No. 14063
Decided April 7, 1978.
Plaintiff brought personal injury action against city. The Circuit Court, Summers County, Charles M. Lobban, Judge, dismissed action on ground that plaintiff had failed to comply with statute requiring that notice of claim against municipality be filed within 30 days after cause of action accrues, and plaintiff appealed.
Reversed and remanded
David L. Ziegler for appellant
No appearance for appellee.
By order entered December 21, 1976, the Circuit Court of Summers County dismissed the plaintiff's personal injury action because the plaintiff had failed to comply with the provisions of W. Va. Code, 8-12-20, requiring that notice of a claim against a municipality be filed within thirty days after a cause of action accrues.
The plaintiff, Elizabeth Jane Anderson, filed this appeal contending, among other points, that W. Va. Code, 8-12-20, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
This Court, before the maturation of this appeal, announced its decision in the consolidated cases of O'Neil and Hendrickson v. City of Parkersburg, ___ W. Va. ___, 237 S.E.2d 504 (1977). Syllabus Point 2 of the O'Neil case states:
"The notice of claim provision provided for in W. Va. Code, 8-12-20, as enacted by the legislature in 1969, is violative of the equal protection and due process clauses of our state and federal constitutions and is unconstitutional."
The O'Neil decision governs the resolution of the issue raised by the plaintiff in this appeal.
The judgment of the Circuit Court of Summers County is, therefore, reversed, and the case is remanded for trial.
Reversed and remanded.