MENDEZ v. MOATS, 310 Ga. 114

On August 15, 2015, Deputy Kathryn Allred, driving a county‑owned patrol vehicle, collided with Efrain Mendez’s car; Mendez was injured.
On January 21, 2016, Mendez’s counsel sent ante‑litem notice to the Polk County Board of Commissioners chair but did not send notice to Sheriff Johnny Moats or the sheriff’s office.
Mendez sued Sheriff Moats (official capacity) and Deputy Allred on August 9, 2017, alleging Allred’s negligence and Moats’s vicarious liability; defendants were served and moved to dismiss.
The Court of Appeals (whole court) held unanimously that Allred’s claims were barred by OCGA § 36‑92‑3(a); the court was divided on whether OCGA § 36‑11‑1 (the 12‑month presentment statute) applies to sheriffs and whether presentment to the county satisfied the statute.
The Georgia Supreme Court granted certiorari to consider (1) whether § 36‑11‑1 applies to official‑capacity claims against sheriffs and (2) whether presentment to the county commission satisfies the statute, but ultimately vacated the writ as improvidently granted and denied review because the issues were not properly presented or adequately briefed in this case.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does OCGA § 36‑11‑1 apply to official‑capacity claims against a county sheriff?	Mendez did not contest application here and accepted Court of Appeals’ precedent that it applies.	Moats defended the Court of Appeals’ holding that § 36‑11‑1 applies to sheriffs.	Not decided by the Supreme Court (writ dismissed); Court of Appeals had held § 36‑11‑1 applies.
If § 36‑11‑1 applies, does presentment to the county commission satisfy the statute for official‑capacity claims against a sheriff?	Mendez: presentment to Polk County chair sufficed to present claims against the sheriff.	Moats: presentment must be to the sheriff (sheriff/sheriff’s office), so county presentment was insufficient.	Not decided by the Supreme Court (writ dismissed); Court of Appeals majority held county presentment insufficient and barred the claim.
Can a sheriff assert the § 36‑11‑1 presentment defense given OCGA § 33‑24‑51(b) (insurance waiver of governmental immunity)?	Mendez: § 33‑24‑51(b) prevents asserting governmental‑immunity defenses a government insurer couldn’t raise, so sheriff should be precluded from using presentment defense.	Moats & courts: § 33‑24‑51(b) is limited to sovereign‑immunity defenses and does not negate the § 36‑11‑1 presentment requirement.	Not resolved by the Supreme Court; Court of Appeals did not adopt Mendez’s argument and prior decisions have rejected it.

Gilbert v. Richardson, 264 Ga. 744 (Ga. 1994) (held official‑capacity suits against a sheriff may be treated as claims against the county; contains influential footnote equating sheriff official‑capacity suits to county suits)
Columbia County v. Branton, 304 Ga. App. 149 (Ga. Ct. App. 2010) (Court of Appeals treated official‑capacity claim against sheriff as a claim subject to county presentment statute)
Davis v. Morrison, 344 Ga. App. 527 (Ga. Ct. App. 2018) (Court of Appeals held presentment to the county was insufficient for official‑capacity claims against sheriff; treated sheriff claims as requiring presentment to sheriff)
Croy v. Whitfield County, 301 Ga. 380 (Ga. 2017) (discussed longstanding rule that presentment for county claims is properly directed to the county governing authority)
Moats v. Mendez, 349 Ga. App. 811 (Ga. Ct. App. 2019) (divided Court of Appeals decision at issue: unanimous on § 36‑92‑3 immunity for deputy; majority held § 36‑11‑1 applies to sheriffs and county presentment was insufficient)