346 Ga. App. 635
Ga. Ct. App.2018Background
- On May 2, 2014 Mary Harrell, a passenger, was injured in a collision with a City of Griffin police officer acting within the scope of employment.
- Georgia amended OCGA § 36-33-5 effective July 1, 2014 to add subsection (e), requiring ante litem notices to include “the specific amount of monetary damages being sought,” which would constitute an offer of compromise.
- Harrell served ante litem notice on September 16, 2014 but did not state a specific dollar amount, instead seeking “full recovery allowed by Georgia law” and itemizing categories of damages.
- The City acknowledged receipt and assigned the claim to its risk pool for investigation.
- Harrell sued later; the trial court granted the City’s motion to dismiss for failure to comply with OCGA § 36-33-5(e).
- Harrell appealed, arguing (1) her notice substantially complied with the statute and (2) applying subsection (e) to her claim would be impermissibly retroactive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Harrell’s ante litem notice substantially complied with OCGA § 36-33-5(e) | Harrell: notice substantially complied; specific dollar amount not required | Griffin: subsection (e) requires a specific monetary amount that can be accepted as an offer | Held: No substantial compliance — notice lacked the specific dollar amount subsection (e) demands |
| Whether subsection (e) may be applied to a claim based on a tort occurring before the amendment but whose notice was given after the effective date | Harrell: applying (e) to her post-amendment notice would be retroactive and impair vested rights | Griffin: amendment governs notices issued after effective date; it is procedural and prospective as to notices | Held: Amendment applies to all ante litem notices issued after July 1, 2014; application here is prospective and procedural, not an unconstitutional retrospective impairment of rights |
Key Cases Cited
- Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750 (app. 2013) (standard of review for motion to dismiss)
- Georgia Dept. of Community Health v. Data Inquiry, LLC, 313 Ga. App. 683 (app. 2012) (pleadings construed favorably to plaintiff on motion to dismiss)
- Owens v. City of Greenville, 290 Ga. 557 (2012) (substantial-compliance inquiry under OCGA § 36-33-5)
- City of Greensboro v. Rowland, 334 Ga. App. 148 (app. 2015) (discussing substantial compliance with ante litem notice requirements)
- Simmons v. Mayor & Alderman of City of Savannah, 303 Ga. App. 452 (app. 2010) (ante litem notice insufficient under § 36-33-5(b))
- Canton Textile Mills, Inc. v. Lathem, 253 Ga. 102 (1984) (general rule against retroactive application of statutes)
- Deal v. Coleman, 294 Ga. 170 (2013) (look to statutory text to determine retroactivity)
- DeKalb County v. State, 270 Ga. 776 (1999) (definition of retrospective operation affecting vested rights)
- Fowler Properties v. Dowland, 282 Ga. 76 (2007) (procedural changes may operate retrospectively without impairing vested rights)
- Mason v. Home Depot U.S.A., 283 Ga. 271 (2008) (no vested rights in procedure)
- Atlanta Taxicab Co. Owners Assoc. v. City of Atlanta, 281 Ga. 342 (2006) (ante litem notice sufficient if it gives general notice of time, place, extent)