Lead Opinion
In Georgia Dept. of Juvenile Justice v. Cummings,
Cummings was injured in December 2002 when her car collided with a van driven by an employee of the Georgia Department of Juvenilе Justice (“DJJ”). The van did not bear any decals or insignia identifying it as belonging to DJJ. The accident report identified the van’s owner as the State of Georgia and listed the van’s VIN and license plate number; the name, address and telephone number of the driver, Gary Player; and the name and address of the van’s passenger, who was also a DJJ employee.
In July 2003, Cummings, through counsel, sent an ante litem notice of claim agаinst the State of Georgia by certified mail, return receipt requested, to the Risk Management Division of the Georgia Department of Administrative Services (“DOAS”). The notice stated that Cummings’ claim arose from the negligent operation of a motor vehicle by Player, who was incorrectly identified as an employee of the Georgia Department of Transportation (“DOT”). Believing DOT to be the responsible аgency, Cummings mailed a copy of the notice of claim to DOT.
In August 2004, Cummings filed suit, naming as defendants the State of Georgia, DOT, DJJ, an unknown department within the State of Georgia, and Player. All the defendants moved to dismiss on various grounds; the trial court granted the motion as to all the defendants except DJJ.
The GTCA requires a party with a potential tort claim against the State to provide the State with notice of the claim prior to filing suit thereon. OCGA § 50-21-26. Such notice must be given in writing within 12 months of the date the party’s loss was or should have been discovered. OCGA§ 50-21-26 (a) (1). The notice must identify, “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances,” OCGA § 50-21-26 (a) (5), the state government entity whose acts or omissions are asserted as the basis for the claim, id. at (A); the time and place of the occurrenсe from which the claim arose, id. at (B) and (C); the nature and amount of the loss suffered, id. at (D) and (E); and the acts or omissions that caused the loss. Id. at (F). In addition, notice of the written claim must be
mailed by certified mail or statutory overnight delivery, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim.
OCGA § 50-21-26 (a) (2).
Compliance with the ante litem notice provisions is a condition precedent to the claimant’s right to file suit against the State, and the courts lack jurisdiction to adjudicate any such claims against the State “unless and until [the] written noticе of claim has been timely presented to the state as provided in [OCGA § 50-21-26 (a)].” OCGA § 50-21-26 (a) (3). A claimant may not initiate suit on her claim until the earlier of (1) the denial of her claim by DOAS or (2) 90 days from the date of presentation of the ante litem notice. OCGA§ 50-21-26 (b). Thus, “[t]he purpose of [the ante litem notice] requirements is to ensure that the state receives adequate notice of the claim to facilitate settlement bеfore the filing of a lawsuit.” (Footnote omitted.) Williams v. Georgia Dept. of Human Resources,
It is well established that strict compliance with the notice provisions is a prerequisite to filing suit under the GTCA, and
However, we have also held that the rule of strict compliance does not demand a hyper-technical construction that would not measurably advance the purpose of the GTCA’s notice provisions. See Georgia Ports Auth. v. Harris,
As we read it, the GTCA’s ante litem notice provisions clearly contemplate the possibility that a claimant may have imperfect information regarding various facets of her claim at the time her notice is submitted. Specifically, as set forth above, the statute requirеs only that the prescribed details regarding the potential claim be stated “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.” OCGA § 50-21-26 (a) (5). With respect to the responsible agency, the claimant is required to state “[t]he name of the state government entity, the acts or omissions of which are asserted as the basis of the claim.” Id. at (A). Thus, presumаbly in acknowledgment of a claimant’s potentially imperfect knowledge, the plain language of the statute requires the identification of the agency asserted to be responsible, rather than identification of the agency actually responsible.
The claimant must then deliver the notice to the DOAS Risk Management Division and send a copy thereof to the agency “the act or omissions of which are asserted as the basis of the claim.” OCGA § 50-21-26 (a) (2). Again, the plain language requires notice to the agency asserted to be, rather than the agency that actually is, responsible. In short, the ante litem notice provisions require the claimant to identify in her notice, based on the information available to her at the time, the agency she believes to be responsible for her losses, and to provide a copy of the notice to that agency within the 12-month statutory period.
We note that construing OCGA § 50-21-26 to accommodate the possibility of a claimant’s error in identifying the responsible agency makes sense in light of thе fact that the GTCA vests DOAS, rather than the responsible agency, with specific authority to investigate claims arising thereunder and with sole authority to settle such claims. See OCGA §§ 50-21-26 (c) and (d); 50-21-36. The primacy of DOAS over the responsible agency with respect to the handling of claims is also demonstrated by the fact that the statute requires that DOAS get the original notice, while the responsible agency is only to receive а copy, and that delivery to DOAS must be provable by receipt, with no receipt required from the responsible agency. OCGA § 50-21-26 (a) (2). Likewise, the statute requires the claimant who proceeds to file suit on her claim to attach to her complaint a copy of the notice to the DOAS but requires no proof regarding the notice to the responsible agency. OCGA§ 50-21-26 (a) (4). Because DOAS is charged with primary authority to handle GTCA claims, a claimant’s error in identifying the responsible agency should not, so long as she complies fully with the requirements regarding notice to DOAS, impede the purpose of the ante litem notice provisions to enable the State to investigate and settle claims before they ripen into full-blown litigation.
Judgment reversed.
Notes
The trial court dismissed Cummings’ claims against the State of Georgia because the GTCA requires that the claimant name as party-defendant only the responsible government entity, see OCGA § 50-21-25 (b); against DOT and the unknown department due to the parties’ acknowledgment that DJJ was the agency that employed Player at the time of the accident, see id.; and against Player on grounds of official immunity. See id. at (a).
In its brief, the State asserts that this Court has not undertaken to review the sufficiency of the content of the notice, maintaining that the Court of Appeals reversed the trial court on grounds of both the content and the timeliness of the notice and nоting that this Court’s certiorari question specifically referenced only the latter. However, because we view the issues regarding the content and the timeliness of the notice to be inexorably related, and because our reading of the Court of Appeals’ opinion does not reveal that the Court of Appeals bifurcated its holding as the State maintains, we review both issues.
In its decision, the Court of Appeals held that “the burden is on the [claimant] to utilize whatever means are available to him to provide both the DOAS and the responsible government entity with timely ante litem notice,” Georgia Dept. of Juvenile Justice v. Cummings, supra,
Notably, Cummings served her initial notice more than four months before the 12-month deadline, allowing ample time for her to amend and resend her notice in a timely manner had she been made aware of the necessity of doing so. Indeed, it was reasonable for Cummings to believe that her notice was sufficient in all respects where the State initiated and proceeded with settlement negotiations over a period of months without once indicating that Cummings had failed to identify the correct agency.
Indeed, the Legislature’s apparent acknowledgment of the potential for error in identifying the responsible agency undercuts the notion that the Legislature intended notice to the correct agency to be a jurisdictional prerequisite to suit.
Dissenting Opinion
dissenting.
The Georgia Tort Claims Act (GTCA) requires a claimant to determine “as far as may be practicable under the circumstances,” the exact identity of the state agency allegedly respоnsible for the claimant’s injuries. This Court, however, requires a claimant to do nothing more than guess. In its opinion, the majority minimizes the mandates of the Georgia Constitution granting sovereign immunity to the State, improperly expands the State’s waiver of sovereign immunity, and unduly erodes the fundamental principle that requires this Court to strictly and narrowly construe the extent of the waiver of sovereign immunity by the State under the GTCA. Furthermore, the undisрuted facts of record simply do not support the majority’s strained conclusion. For these reasons, I must respectfully dissent.
Prior to 1990, the Georgia Constitution provided that, with regard to damage claims, the State waived its sovereign immunity to the extent that the State had purchased liability insurance which would cover these claims. In 1990, however, the Georgia Constitution was amended to re-establish the State’s sovereign immunity in its brоadest and most complete sense. Under this constitutional amendment, suit could not be brought against the State for damages unless the General Assembly decided to “waive the [S]tate’s sovereign immunity from suit by enacting a State Tort Claims Act.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (a).
Thereafter, the General Assembly did, in fact, create the GTCA. Strict compliance with the GTCA, including its notice provisions, is a prerequisite to filing suit against the State, аs the GTCA merely provides for a narrow waiver of the State’s sovereign immunity. See, e.g., Williams v. Georgia Dept. of Human Resources,
With these precepts in mind, OCGA § 50-21-26 (a) (2) mandates that notice of a claim against the State must be given to the Risk Management Division of the Department of Administrative Services and a copy must be delivered to the state government entity whose acts or omissions form the basis of the claim. In turn, OCGA § 50-21-26 (a) (5) (A) requires a claimant to include in his or her ante litem notice “to the extent of the claimant’s knowledge and as may be practicable under the circumstances . . . [t]he name of the state government entity, the acts or omissions of which are asserted as the basis of the claim.” Read togеther, these provisions imply that in some cases where the claimant has tried, as far as may be practicable under the circumstances, but fails to determine the exact identity of the state agency allegedly responsible, that claimant
In this case, the facts simply cannot support the required finding that Cummings diligently sought out the identity of thе responsible agency to the extent practicable under the circumstances. To the contrary, she chose to provide notice to the Department of Transportation, the wrong state agency, on the basis of speculation and assumption. The record shows that, following the accident in question, Cummings obtained a copy of the police report and took pictures of thе state’s van, which was unmarked. Despite the fact that the police report contained the name, address, and phone number of the van’s driver, the name and address of the van’s passenger, and the van’s license plate number, there is no evidence that Cummings did anything to follow up on this information. In fact, there is no evidence that Cummings ever asked anyone which state agency was operating the van in question. According to Cummings’ affidavit, she merely provided ante litem notice to the DOT “since the police report indicated it was a vehicle owned by the State of Georgia.” Likewise, Cummings’ attorney similarly stated: “Since the van was used for transportation, we identified the Georgia Department of Transportation as the responsible state agency in the notice sent to the Department of Administrative Sеrvices.” Cummings admittedly provided notice to the DOT, the wrong state agency, based on this rank speculation, and notice to the wrong state agency based on mere speculation and assumption does not satisfy a burden of even minimal diligence. Therefore, even under the relaxed standard implied in OCGA § 50-21-26 (a) (5) (A), Cummings did not strictly comply with the ante litem notice requirements of the GTCA, and the trial court erred by denying the State’s motion to dismiss Cummings’ case.
Rather than reach this straightforward result, the majority defers blindly to the findings of the trial court that Cummings’ ante litem notice was sufficient. In doing so, the majority overlooks the reality that, because the undisputed facts of record do not support the trial court’s finding, deference to the trial court is not appropriate in this case. By employing this unquestioning deference, the majority, in effect, turns the applicable law on its head to expand the waiver of sovereign immunity rather than interpreting the GTCA narrowly, as required. In fact, the majority’s opinion essentially destroys the requirement that the responsible state agency receive any reasonable notice and shifts the burden of identifying the responsible agency almost completely to the DOAS. Under the majority’s analysis, a party may admittedly assume the identity of the responsible agency, send notice based on this assumption, and force the DOAS to determine the proper agency. This result violates both the constitutional and legislative intent underlying the GTCA and oversteps the authority of this Court.