Errica Cooper, individually, and on behalf of her minor child, Jordan Cooper, sued Coweta County (“the County”) and Larry Clifton for injuries allegedly suffered by Cooper and her child when the vehicle in which they were traveling was struck from the rear by a county vehicle driven by Clifton. The County and Clifton answered and raised the defense that the Coopers’ claims are barred by the failure to present the claims to the County within 12 months after they accrued as required by OCGA § 36-11-1. The County and Clifton appeal claiming that the trial court erred by denying their motion for summary judgment on the basis of this defense. For the following reasons, we affirm in part and reverse in part.
Under OCGA § 36-11-1,
[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims.
Failure to present the County with formal written notice of the claim within the 12-month statutory period, or to present the claim to the County by suing and serving the County on the claim within that period, acts as a bar to the claim. OCGA § 36-11-1; Burton v. DeKalb County,
The claims against the County brought by Cooper and her minor child accrued on February 5, 2009, the date of the vehicular accident. Their suit against the County and Clifton was filed on January 13, 2011, after the expiration of the 12-month period in OCGA § 36-11-1. But on March 4, 2009, within the 12-month statutory period, Cooper, for herself and on behalf of her minor child, sent a letter by certified mail addressed to “County Attorney’s Office” at 10 Brown Street, Newnan, Georgia to the attention of Jerry Ann Conner as “Coweta County Attorney.” The letter described the accident and the claims by Cooper and her minor child and stated that it was sent to present and give notice ofthe claims pursuant to OCGA § 36-11-1. The record does not show whether Conner was located at that address, whether she was an attorney, or if she was the county attorney. A person at the 10 Brown Street address other than Conner signed for and accepted the certified letter. It is undisputed that 10 Brown Street in Newnan is the address of the law firm of Glover & Davis, P.A. According to an affidavit provided by Nathan T. Lee, a Glover & Davis partner, Glover & Davis is a law firm independent of Coweta County; the firm serves as the county attorney for Coweta County, which is a client of the firm; but the firm does not have authority to accept notices given pursuant to OCGA § 36-11-1 unless express permission has been granted by the county administrator. There is no evidence that any such permission was given in this case. Testimony at the hearing on the motion by an employee for Cooper’s attorney showed that the employee telephoned the office of the county board of commissioners to find out where to send notice to the County pursuant to OCGA § 36-11-1. According
The trial court erred by ruling that this was substantial compliance with the requirement that the County be presented with written notice of claims under OCGA § 36-11-1. In general, presentation of notice under OCGA § 36-11-1 is sufficient when given to a county attorney employed in-house by a county, or any department or official of a county. Burton,
The statutory requirements for ante litem notice to the governing authority of the [county] generally may not be waived by the [county] or by an individual, even if that individual is the official directly responsible for the injury or for claims adjustment. To allow waiver by an individual of the legal requirements established for the benefit of the [county] completely obverts the statute and creates new issues and new dangers. What might be verbally agreed to by an individual in governing capacity may not be subject to proof if that individual becomes incapacitated or dies. The official might even deny having made a waiver. An individual may not verbally waive for the [county] what the law requires to be done in writing.
Id. at 21. Moreover, the County cannot be estopped as the result of an ultra vires act by an employee. Id.
It follows that there is an absence of evidence in the record to prove that written notice was presented to the County within 12 months after the claims accrued as set forth in OCGA § 36-11-1. To the extent the suit asserted a claim on behalf of Errica Cooper, individually, seeking to hold the County vicariously liable for the negligence of its employee, Clinton, the suit was barred by the failure to comply with OCGA § 36-11-1, and the trial court erred by refusing to grant summary judgment to the County. Lau’s Corp. v. Haskins,
[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims.
(Emphasis supplied.) The County does not dispute that Cooper brought the suit, not only individually, but also on behalf of her minor child, who was allegedly injured in the accident. The period under OCGA § 36-11-1 for presenting the child’s claim to the County was tolled so that it expires 12 months after the date on which the disability of minority is removed by the child’s attainment of the age of lawful majority. See Barnum v. Martin,
Judgment affirmed in part and reversed in part.
Notes
Although the County initially filed a motion to dismiss for failure to state a claim, when the trial court considered matters outside the pleadings, the motion to dismiss was converted to one for summary judgment pursuant to OCGA § 9-11-56. Davis v. Phoebe Putney Health Systems,