*1 Georgia-Pacific (2) (b). Products, Consumer at 212 foregoing reasons,
For the the trial court committed clear error denying and abused its discretion in Lewis’s motion for class certifi- Accordingly, majority, cation. unlike the I believe this court should reverse that erroneous trial court order. Judge joins
I am authorized to state that Reese in this dissent Presiding Judge Presiding Judge Ellington and that Miller and judgment only concur in as to this dissent.
Decided March
Reconsideration denied March appellant. Bain,
David A. for McKenzie, DeGennaro, Alford, Mark L. Matthew C. for Willis appellees.
A16A2132. DEPARTMENT OF TRANSPORTATION
v. KING. 492) Judge. Branch, King personal injury Shenita filed this action in the State Court County against Georgia Department Transportation, of Bibb alleging Department’s employee, negligently Peed,
that the
John
injured.
Department
caused a vehicle collision in which
was
King’scomplaint
jurisdic-
moved to dismiss
for lack of
matter
among
things,
King’s
tion,
notice,
other
on the basis that
ante litem
which indicated that she would claim “the full amount of
specify
law” but did not
in dollars the amount of the loss
satisfy
sovereign
claimed, failed to
the conditions for a waiver of
immunity
Georgia
Act,
under the
Tort Claims
OCGA 50-21-20 et
§
seq. (“GTCA”).
The trial court determined
because the GTCA
caps
million,
the amount of
for a claim under the Act at $1
the reference in
ante litem notice to the full amount of
law was sufficient to make the
aware that
seeking
Department’s
was
1 million. The trial court denied the
$
obtaining permission
dismiss, and,
Court,1
motion to
after
from this
Department appeals.
explained below,
For the reasons
we reverse.
establishing
Whether a
has carried her burden of
sovereign immunity,
showing compliance
waiver of
which includes
(b) (applications
interlocutory appeals).
See OCGA 5-6-34
*2
Act,
with the ante litem
is a
provisions
question
Harris,
matter
Ports Auth. v.
jurisdiction.
App.
Ga.
aff’d,
Loehle v. Pub. 836-837 Dept. Safety, Ga. 469) (2015) (citations punctuation omitted). The GTCA with a tort claim requires party potential against the State to the State with written notice of the claim before provide information, suit. OCGA 50-21-26. other the notice filing Among § must state amount of the loss OCGA 50-21-26 “[t]he claimed[.]” § Here, notice, 1, 2013, that, sent stated as a (a) (5) (E). August 26, 2013, result of a vehicle collision on or about with a vehicle July Peed, driven John she “suffered and con- by Department employee, tinues to suffer Her notice stated: great pain suffering.”
The total for Mrs. have not King’s personal injuries been determined as Mrs. is still under the care of her Mrs. will claim the full amount of treating physician. allowed law. by The trial court determined that “the full amount of damages law” is established the GTCA under OCGA 50-21-29 by § That subsection that “in action or claim for (b) (1). provides under the shall damages brought provisions GTCA], person [the recover a sum million because of loss from a exceeding arising $1 occurrence, of the number of state single regardless government that, entities The trial court determined because the involved[.]” notice showed that one individual was from a claiming damages collision, and because the State is aware to single pursuant the maximum (b) (1), recovery GTCA for one individual from one occurrence is seeking damages million, the notice was sufficient on notice of put the amount of the loss claimed. We with the trial court’s disagree ruling.
104 construing presume statute,
When
a
“we must
that the General
Assembly meant what it said and said what it meant.” Deal v.
(1) (a) (751
337) (2013) (citation
Coleman,
170,
294 Ga.
SE2d
and
punctuation omitted).
language
plain
Thus if the
ofthe statute “is
and
unambiguous,
judicial
only unnecessary
construction is not
but
Flags
(576
Kull,
210,
forbidden.”
Over
II v.
276 Ga.
SE2d
Six
Ga.
880) (2003) (citation omitted).
involved,
Where terms ofart are not
we
customary usages
look to the common and
of the words and their
688)
Prickett,
589,
context. Zaldivar v.
297 Ga.
SE2d
(2015).
may
provisions
context,
“For
we
look to other
of the same
history
statute,
statute,
the structure and
of the whole
and the other
—
—
statutory,
constitutional,
law
and common law alike
that forms
legal background
statutory provision
question.”
of the
Id.
(citation
punctuation omitted).
and
Part of the context of the ante
requirement
litem notice
is that
a claimant does not meet the
“[i]f
requirements,
ante litem notice
eign immunity,
then the state does not waive sover
therefore,
and
the trial court lacks
matter
jurisdiction.”
Dept. Transp.,
(2)
v.
Silva Ga.
(787
247) (2016) (citation
punctuation omitted).
Accord
ingly,
compliance
requirements
“strict
with these ante litem notice
necessary,
compliance
Regents
and substantial
is insufficient.” Bd. of
System
Myers,
543)
the Univ.
v.
Ga.
(2014) (citations omitted).
Nevertheless,
Court has
compliance
require hyper-technical
“cautioned that strict
does not
measurably
purpose
construction that would not
advance the
provisions.”
(citation
ante litem notice
omitted).
Id. at 846
GTCA,
“state,
Under the
the notice of claim must
to the extent of
practicable
the claimant’s
and belief and as
be
under
circumstances,”
information,
six items of
as follows:
(A)
government entity,
The name of the state
the acts or
claim;
omissions of which are asserted as the basis of the
(B) The time ofthe transaction or occurrence out ofwhich the
(C)
place
arose;
occurrence;
loss
of the transaction or
(D)
(E)
suffered;
The nature ofthe loss
The amount ofthe loss
(F)
claimed; and
The acts or omissions which caused the loss.
(a) (5).
omitting only
It is well established that
“amount of the loss claimed” from an ante litem notice is a failure to
“strictly comply
requirements
with the notice
of the GTCA” and
plaintiff’s
Myers,
therefore fatal to the
claim.
We hold that notice failed to with this Myers’ strictly comply because it did not state any ante litem notice requirement amount loss whatsoever. the notice states that Although determined, loss was to be she was still Myers’ yet incurring bills, medical and she did not know the full extent of her yet she had incurred medical at the injury, actually expenses Thus, time she notice. the extent of her and gave knowledge included, minimum, belief at the time of notice at a medical she had incurred thus far. As the trial expenses court “failed correctly recognized, Myers entirely comply with a requirement despite having knowledge.” omitted; Id. at 846 and footnote (citation emphasis supplied). Court concluded that “the the ante litem notice plain language [of notice of the amount of the loss claimed at time requires statute] [the] claimant, within the belief and as notice], knowledge [of be under the circumstances.” Id. practicable (citation omitted). Thus, should have included in the ante litem notice the Myers amount of loss that she knew at the time and could have also stated belief, that “based on her there would be some and pain suffering future, or lost in the the amounts of which she did not wages have and could not at that time.” yet knowledge practicably provide Id. at 847. The Court went on to note that the amount of loss claimant; claimed in the ante litem notice does not bind the rather it claim, “notice to the State of as provides practi- cable and to the extent of the claimant’s and belief at the omitted; time of the notice.” Id. (citation emphasis supplied). us,
In the case before ante litem notice failed to state loss, amount of stated that she would claim “the full amount of law,” but indicated that she had received already care from her treating physician:
Mrs. suffered The total physical pain suffering. for Mrs. have not been King’s personal injuries determined as Mrs. is still under the care of her *5 treating physician. Mrs. will claim the full amount of law. King’s Thus, minimum, at a ante litem notice is flawed for the — identical reason found in the notice failed to state the Myers amount of loss knew at the time of the notice. King’s cap liability
Second, reliance on the GTCA’s on does not problem. cap nothing solve this has to do with the amount of a claim; rather it is a limitation on the amount that can be recovered: person exceeding shall recover a sum million because arising single regardless occurrence,
of loss from a government involved; number of state entities . . . (b) (1) (emphasis supplied). jury Moreover, the will plaintiff’s
hear information about the total amount of the claims hearing recovery: without ever about the limitation on “The existence caps liability suggested jury ofthese on shall not be disclosed or to the during brought the trial of action under this article.” Id. Accord- ingly, cap provides the no limitation on the amount the can Correspondingly, already Supreme shown, claim in the lawsuit. as Court has made clear that the “amount of loss claimed” in the ante claimant, Thus, litem notice does not bind the either. the reference to cap recovery provides the GTCA’s no information whatsoever King may about the amount that claim in the suit. Supreme explained
Third, the Court has that the ante litem requirements adequate “ensure that the State receives notice of the filing lawsuit,” claim to facilitate settlement before the of a and that provide it should “notice to the State of the of the claim.” (citation omitted). 295 Ga. at The fact that the claim- greatly GTCAcap ant have losses that exceed the on the amount certainly that can be recovered is relevant to the issue of settlement. interpretation above, Given the the trial court’s of the statute is erroneous as a matter of law. statement that she intended to satisfy “claim the full amount of law” fails to provided by definition of “the amount of loss claimed” cap might Court; it refers to a on the amount she be allowed to recover providing any without information about the amount she can claim to jury; provide meaningful and it fails to information to the State purposes of settlement. above, For the reasons stated we reverse the denial of the Department’s motion to dismiss.
Judgment Doyle, Ray, J., Dillard, J., reversed. C. P. Andrews and fully specially. Ellington, JJ., Bethel, J., J., concur. concurs and P. Reese, JJ., Mercier and dissent. Judge, concurring fully specially.
BETHEL, and join fully Judge opinion specially I in Branch’s and write emphasize point supporting an additional the reversal of the trial court’s order. King urge proposition dissent, court, the trial and damages by legal linguistic
“the full amount of equivalent allowed law” is the and saying by statutory cap “the maximum allowed a on damages” (which million). Respectfully, in this instance is this is $1 precisely not the case. through igno- mistake,
It is clear that a tort is committed “[i]f negligence, damages rance, or mere are limited to the actual injury Parkway Ga.App. Salter, receive See Mabelton v. d[.]” CVS (2) (b) (615 558) (2005) (citation 477, 482 omitted); Ga.App. Rock, see also Carroll v.
391) (1996). damages It follows then that “the full amount of allowed by damages proven, law” means the amount of incurred and not to statutory cap.2 differently, statutory cap exceed the Stated the cited only “cap.” damages always “cap” recovery is not the Actual are a Parkway CVS, in this class of cases. Mabelton at 482 (2) (b). reality King’s argument highlights This undermines provision requirement. value of this of the ante litem notice $50,000 Consider a who incurs a loss under the circum- alleged King’s complaint. damages stances The “full amount of by hypothetical plaintiff $50,000. Thus, allowed law” to this is purported merely ante litem notice that seeks “the full amount of damages by sufficiently governmen- law” does not inform the — entity entity tal of the claim even if the is aware —cap might of a because the “full amount” be amount between applicable cap. provides words, and the In other such a notice governmental entity information about the claimed that the already did not know. Presiding Judge, dissenting.
ELLINGTON, correctly although I believe that the trial court determined specify Shenita ante litem notice did not in dollars the amount claimed, of the loss the statement in her ante litem notice that she would claim “the full amount of law” was course, punitive damages, provided Of treble and the like are law as exceptions exceptions implicated by to this rule. None of these this case. *7 108
sufficient to make the aware that she was seeking $1 million, in view of of OCGA 50-21-29 which the amount (b) (1), caps § of for a claim under Tort Claims Act at Georgia $1 million. I dissent. Accordingly, respectfully strict with the Act’s ante litem notice
Although
compliance
and substantial
is insuffi
requirements
necessary,
compliance
cient,
Court of
has cautioned that “strict
Georgia
does not
a
construction
that
compliance
require
hyper-technical
would not
advance the
of the ante litem notice
measurably
purpose
Nor does strict
take
over the
provisions.
compliance
precedence
plain
or
of the statute.”
language
meaning
(Citations
843,
Bd.
Univ.
v.
Regents
System
Myers,
Ga.
295 Ga.
omitted.)
of
of
of
v.
Cummings
Dept.
Ga.
846
SE2d
See also
(764
543) (2014).
of
Justice,
822,
Juvenile
282 Ga.
SE2d
(653
729) (2007) (accord).
“The
of
ante litem
is to ensure that
purpose
requirements
[the
notice]
the state receives
notice of the claim to facilitate settlement
adequate
v.
(Citation omitted.) Williams Ga.
before the
of a lawsuit.”
filing
Resources,
624,
Human
Dept.
272 Ga.
SE2d
(532
401) (2000).
of
The function of the ante litem notice is not to commit a
plaintiff
settlement,
a certain amount
in
but it must
notice
accepting
“provide
claim,
to the State of the
as
and to the
practicable
extent of the claimant’s
and belief at the time of the
notice.” Bd.
Univ.
v.
Regents
System
Ga.
109 litem notice the notice of the of her gave Department claim sufficient to serve the Act’s of the purpose allowing Department to settlement The fails to pursue negotiations. Department entirely articulate how it is in a worse to position seeking negotiate settlement with because her notice stated that she would be “the full amount allowed law” rather than that she seeking stating would be million.”5 Because that seeking requiring specific “$1 dollar of million” be substituted would be a figure hyper-technical “$1 construction of OCGA 50-21-26 that would not (a) measurably advance the of the Act’s ante litem notice purpose requirements, trial court did not err in motion to dismiss. denying Department’s
I am authorized to state that Mercier and Reese Judge Judge join in this dissent. 15,
Decided March
29,
Reconsideration
denied March
Olens,
General,
Pacious,
Kathleen M.
Attorney
Deputy
Samuel S.
General, Loretta L.
Assistant Attor-
Attorney
Pinkston-Pope, Senior
General, Matthew I.
Melissa A.
Assistant Attor-
ney
Dowling,
Tracy,
General, neys
appellant.
Disabilities,
384,
Dept.
Developmental
App.
v. Ga.
Behavioral Health and
329 Ga.
at
387-389
of
(An ante litem notice was deficient where it stated that
the “amount of loss suffered” is the
“monetary
appropriately penalize
value of the decedent’s life in an amount sufficient
[the]
indifferent,
deliberately
negligent
duty]
deliberately
State’s
breach of
and . . .
[its]
]
[its]
indifferent, negligent
rights.”) (punctuation omitted);
violation of the decedent’s
Driscoll v. Bd.
Ga.,
Regents
System
App.
(An
Univ.
326 Ga.
at
ante litem notice was deficient
of
where it
of
of
requested
resolution.”);
Regents
System
Myers,
an “amicable
Bd.
Univ.
Ga. v.
of
of
of
(An
because that is a dollar
even
reflect an individual
losses,
pain
suffering,
ultimately
value of the kinds of
like
that are difficult to value and are
impartial
jury’s enlightened
Regents
System
to an
conscience. Bd.
Univ.
Ga. v.
of
of
of
846;
Disabilities,
Myers,
Dept.
Developmental
295 Ga. at
Dorn v. Ga.
Behavioral Health and
of
386;
Ga.,
Regents
System
App.
at
Driscoll v. Bd.
Univ.
at 317-318.
of
of
greater specificity
purposes
It is difficult to see how
advances the
of the ante litem notice. See
Regents
System
(A
Bd.
Univ.
Ga. v.
A16A2192, REDCEDAR, A16A2193. LLC v. CML-GA SOCIAL
CIRCLE, LLC; and vice versa. 334)
Reese, Judge. cases, Redcedar,
In these the whether companion parties dispute LLC, a that cut and removed timber from certain company property, can be held liable under the Timber Collateral Conversion Georgia 51-12-51, and, so, Statute OCGA if measure- (“GTCCS”), proper A16A2192, ment of from such conversion. In Case No. damages arising Redcedar from an order of the Court of Newton appeals Superior a motion for filed County granting partial summary judgment Circle, CML-GA Social LLC based on a (“CML-GA”), finding Redcedar was liable under the GTCCS as a matter of law.1 In Case A16A2193, No. CML-GA from a related order Red- appeals granting cedar’s cross-motion for as to the partial summary judgment appli- cable measure of to be determined at trial. For the reasons infra, set forth we affirm the grant partial summary judgment A16A2192, CML-GAin Case No. and we affirm in and reverse in part in Case No. A16A2193. part judgment
On from the this appeal grant summary judgment Court conducts a de novo review of the evidence to determine whether there is a issue of material fact and whether genuine facts, viewed in the most favorable to undisputed light warrant as a matter of law.2 nonmoving party, judgment mind, With these we turn now to the guiding principles parties’ claims of error. specific granted summary judgment liability The court’s order also to CML-GA as to the co-defendants, Timber, LLC, addition, Georgia agent, Barry Bedingfield. Redcedar’s and its In summary judgment Bedingfield.
the court denied cross-motions filed Redcedar and order, Although Bedingfield initially appealed summary judgment granted from the this Court appeal August Georgia his motion to withdraw the 2016. Timber and CML-GA settled summary judgment against liability. the case after the court entered the former on the issue of Thus, Georgia party appeals. Timber is not a to these ty, Home Builders Assn. Savannah v. Chatham Coun 564) (2003) (citation punctuation omitted).