GEORGIA PORTS AUTHORITY v. HARRIS et al.; and vice versa.
A99A2012, A99A2013
GEORGIA COURT OF APPEALS
March 30, 2000
April 13, 2000
533 SE2d 404
ELLINGTON, Judge.
William J. Mason, for appellant. J. Gray Conger, District Attorney, Julia Slater, Assistant District Attorney, for appellee.
J. Gray Conger, District Attorney, Julia Slater, Assistant District Attorney, for appellee.
A99A2012, A99A2013. GEORGIA PORTS AUTHORITY v. HARRIS et al.; and vice versa.
(533 SE2d 404)
ELLINGTON, Judge.
In Case No. A99A2012, Georgia Ports Authority (GPA) appeals from the judgment entered on the jury‘s verdict in William N. and Ruthie Mae Harris’ negligence suit under the Georgia Tort Claims Act (GTCA) for personal injuries suffered while Mr. Harris was working as a longshoreman at the Brunswick port.1 In Case No. A99A2013, the Harrises cross-appeal. The cases are considered together.
Harris, working out of the International Longshoremen‘s union hall for stevedore Ryan-Walsh Shipping Company,2 was injured on December 20, 1993, when he and others were attempting to remove a
Because the tarp was holding standing water and could not be lifted off the steel by the men, Ryan-Walsh employees brought a forklift to the stack to help lift the tarp to allow the water to run off. As the water was draining off the tarp, the men heard a crack and a bundle of steel fell off the stack, severely injuring Harris. After the tarp was finally removed and the stack examined, it appeared that the GPA workers had not properly stacked the steel, causing the dunnage to break and one of the upper bundles of steel to fall.
Case No. A99A2012
1. GPA‘s first and second enumerations deal with the trial court‘s denial of its motion to dismiss, which was finalized by the judgment appealed, and are considered together.
Prior to trial, GPA filed its motion to dismiss pursuant to
(a) GPA contends the trial court erred by accepting evidence on this issue after initially denying the motion to dismiss based solely on the pleadings.
A review of the procedural history of this case is necessary to a resolution of this issue. Harris’ complaint was originally filed in November 1995. As the claimed ante litem notice required by
to serve notice on the Georgia Ports Authority for potential liability in the accident and injury that occurred to ILA long-
shoreman, William N. Harris, on December 20, 1993 in Brunswick, Georgia. Mr. Harris’ injuries occurred as a result of section of pipe falling, causing extensive damage to his knee, ankle and shoulder.
After GPA filed its motion to dismiss on May 6, 1996, Harris filed his second amended complaint which attached, in addition to the DeHart letter, the December 16, 1994 letter from prior counsel for Harris, Linny Bailey. That letter enclosed a “State of Georgia Tort Claim” setting out the matters required by
At the hearing on GPA‘s motion to dismiss, held on April 3, 1997, GPA insisted that the matter was to be determined solely by reference to the “face of the pleadings in this case” and objected to consideration of evidence by the court. At the beginning of trial on March 30, 1998, the court revisited the issue of GPA‘s motion to dismiss. At that time, Harris had witnesses he wished to put on concerning the notice issue. GPA objected that the motion to dismiss had already been ruled on and that the court had already decided any issue of fact. The court pointed out, however, that the issue had been decided, based on GPA‘s position, solely on the pleadings and no factual determination had been made by the court. GPA then stated that “our contention [is] that the motion to dismiss is dispositive of all factual issues and that all those issues have been decided.”
The court ruled that it would consider evidence regarding the issue of notice outside the presence of the jury and make factual determinations regarding notice. While GPA agreed that such evidence was not for the jury‘s consideration, it again urged that the issue should not be further considered by the court.
The crux of the issue is the mechanism by which it is determined whether a plaintiff has complied with the ante litem provisions of the statute, a question of subject matter jurisdiction.
As pointed out by Harris and acknowledged by GPA, the lack of subject matter jurisdiction, such as failure to comply with the ante litem notice provisions of the GTCA, is a matter in abatement, not a motion designed to test the merits of the claim. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459) (1974); Pettus v. Drs. Paylay &c., P.C., 193 Ga. App. 335, 336 (387 SE2d 613) (1989); see McGregor v. Stachel, 200 Ga. App. 324 (1) (408 SE2d 118) (1991). As such, it is controlled by
(b) We turn now to GPA‘s first enumeration: that the trial court erred in denying the motion to dismiss because Harris did not strictly comply with the GTCA‘s ante litem notice requirement. In its final judgment, the trial court stated that, having initially denied GPA‘s motion to dismiss, additional evidence was presented on the issue, outside the presence of the jury, during trial and that “a final ruling on Defendant‘s motion was deferred pending receipt of the verdict.” The trial court then concluded that the ante litem notice signed by attorney Bailey and physically delivered to DOAS by Federal Express on the anniversary of the date of Mr. Harris’ injury, with a copy sent by regular mail to GPA‘s Thompson, satisfied the GTCA.
No person . . . having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim as follows: . . . (2) Notice of a claim shall be given in writing and shall be mailed by certified mail, 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 [involved].
(Emphasis supplied.) Because the Bailey letter was not sent by certified mail, the issue is whether the delivery by Federal Express constituted personal delivery in compliance with the emphasized portion of the statute.5
2. GPA contends the trial court erred in the way it allocated the defense‘s peremptory jury challenges between GPA and Ryan-Walsh. Generally, two co-defendants would each be allowed to exercise three of the defense‘s six jury strikes. Sheffield v. Lewis, 246 Ga. 19, 20 (1) (268 SE2d 615) (1980). Where, as here, a third-party claim can be severed under
3. GPA contends the trial court erred in excluding evidence regarding the GPA Tariff. GPA further contends the trial court abused its discretion in refusing to give its requested jury charge regarding Ryan-Walsh‘s alleged indemnity obligation pursuant to the tariff. The tariff at issue provided that users agreed “to indemnify and save harmless” GPA “from and against all losses, claims, demands and suits for damages,” including personal injury “incident to or resulting from their operations on the property of [GPA] and the use of its facilities.” The application of indemnity provisions contained in written contracts is a question of law for the court. Westinghouse Elec. Corp. v. Williams, 183 Ga. App. 845, 846 (2) (360 SE2d 411) (1987). Evidence regarding how any judgment in favor of Harris and against GPA and Ryan-Walsh jointly would have been allocated as a matter of law was utterly irrelevant to the jury‘s determination of negligence and damages. See generally Rumsey, Agnor‘s Ga. Evidence (3rd ed.), § 10-19, pp. 300-301. It follows that the trial court did not err in excluding evidence of the indemnity provision of the tariff and in refusing to charge the jury about the indemnity provision.
Furthermore, the tariff provided: “This Item is not to be construed as requiring any user to indemnify or hold harmless the Georgia Ports Authority for that portion or percentage of such losses, if any, caused by the negligence of the Georgia Ports Authority, its’ [sic] agents or employees.” The jury determined that GPA was negligent, its negligence was a proximate cause of Harris’ injuries, and that neither Harris nor Ryan-Walsh was negligent; no other parties were alleged to be responsible for the collapse of the stacked steel. It follows that in this case the “portion or percentage of such losses caused by the negligence of” GPA was 100 percent. By its terms, the tariff did not require Ryan-Walsh to indemnify GPA for losses to the extent they resulted from GPA‘s negligence. Because GPA was wholly at fault, even if the trial court had admitted evidence of the indemnity provision of the tariff and instructed the jury about it, GPA could not have been relieved of paying the entire allowable judgment.
4. GPA contends the trial court abused its discretion in refusing to give its requested charge that Ryan-Walsh, as Harris’ employer, owed Harris the primary duty to provide a safe work place and to protect him from an unreasonable risk of harm under the Longshore & Harbor Workers’ Compensation Act. See
Even assuming the pleadings were deemed automatically amended to conform to the evidence by
5. GPA contends the trial court erred in excluding testimony from Harris’ doctor that he could return to work. Excerpts of the doctor‘s deposition were read into the record at trial. The trial court excluded the question “Can he go back to work?” and the doctor‘s affirmative response for lack of foundation because the doctor admitted he did not know what Harris’ duties as a longshoreman would be. But a review of the transcript shows that the doctor‘s testimony that Harris was not completely disabled and could return to work with restrictions was admitted. Therefore the excluded testimony was merely cumulative of admitted testimony; the judgment will not be reversed on this basis. Complete Trucklease v. Auto Rental &c., 160 Ga. App. 568, 570 (1) (288 SE2d 75) (1981).
6. GPA contends the trial court erred in refusing to allow impeachment of Harris with a prior recorded statement. GPA attempted to impeach Harris with a statement made in a tape recorded interview. The investigator who conducted the interview was not available to testify, the transcript contained many indications of omissions and indecipherable speech, and the tape itself was barely audible. The trial court‘s conclusion that GPA did not lay a proper foundation for using the transcript for impeachment purposes was not clearly erroneous.
Case No. A99A2013
7. Harris contends the trial court erred in reducing the amount of damages awarded by the jury in his favor to $1,000,000 in accordance with
Pretermitting whether Ryan-Walsh could have recovered directly from GPA the amount it had paid Harris in medical and wage benefits, it did not pursue such a claim against GPA in this action. Harris cited no authority justifying adding to the $1,000,000 per person cap just because he is forced by operation of another law to reimburse Ryan-Walsh for benefits it paid before he secured a negligence judgment against GPA.7
8. Mrs. Harris contends the trial court erred in refusing to enter judgment in her favor and in denying her motion for partial new trial, based on its finding that she did not provide timely ante litem notice of her loss of consortium claim. Mrs. Harris argues that the Bailey letter — which did not mention her loss of consortium claim or even the fact that Mr. Harris was married — was sufficient to include her as a claimant. The authority relied upon by Mrs. Harris, Dept. of Human Resources v. Phillips, 268 Ga. 316, 320 (1) (486 SE2d 851) (1997), holds that one person bringing suit as two distinct legal entities (in that case, a personal representative who was also an administratrix) is treated as two persons for purposes of the $1,000,000 limit on recovery. It does not indicate that a wife claiming loss of consortium does not have to serve a separate ante litem notice.
Mr. Harris, on the other hand, does not contend that he is one person who may recover in two separate legal capacities; he contends that notice of his claim gave notice of the derivative claim of a separate person, his wife. As noted above in Division 1, by its own terms, the ante litem notice provisions of the GTCA must be strictly construed, and this applies to the description of the nature of the loss claimed. Williams v. Dept. of Human Resources, 234 Ga. App. 638 (507 SE2d 230) (1998). In Williams, we held that a notice which described the loss suffered as a woman‘s pain, disfigurement, and reduced life expectancy and her husband‘s loss of consortium, sent while the woman was still alive, did not provide notice of the husband‘s later-accruing claim for his wife‘s wrongful death. Id. at 639-640. We must conclude that notice of Mr. Harris’ claim did not give notice of Mrs. Harris’ loss of consortium claim, and the trial court‘s
Judgments affirmed. McMurray, P. J., Blackburn, P. J., Ruffin, Eldridge and Barnes, JJ., concur. Andrews, P. J., dissents.
ANDREWS, Presiding Judge, dissenting.
I must respectfully dissent in Case No. A99A2012, because there was no compliance by William Harris with the ante litem notice requirements of
Compliance by a plaintiff with the ante litem provisions of the statute is a question of subject matter jurisdiction.
The trial court concluded that the Federal Express delivery initiated by attorney Bailey and mailing a copy by regular mail to Georgia Ports Authority‘s Thompson satisfied the Georgia Tort Claims Act.
No person . . . having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim as follows: . . . (2) Notice of a claim shall be given in writing and shall be mailed by certified mail, 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 [involved].
(Emphasis supplied.)
Since Harris did not opt to use the certified mail, return receipt method of giving notice, compliance with the GTCA must be found in delivery by a private delivery company, Federal Express, to DOAS. The “receipt” required by the statute can only, under the facts of this case, be the Federal Express air bill filled out by attorney Bailey or the recipient‘s copy of the air bill left with DOAS. Bailey testified that Harris’ Exhibit 43 was his copy of the air bill, prepared in and maintained by his office, and Harris’ Exhibit 42 was the recipient‘s copy which was left with DOAS by Federal Express. Harris’ Exhibit 41A is a copy of Bailey‘s notice letter, marked received by DOAS Fiscal Division and provided by DOAS to Harris during discovery. This, apparently, is the linchpin upon which the majority would hang compliance with the ante litem provision, since the evidence does not reflect that anything was obtained by the Federal Express delivery
It is unclear from what portion of the GTCA the majority has divined that the purpose of the ante litem notice requirement of a receipt from DOAS is to protect the claimant, since the notice provisions are also for the benefit of the State.8
In Norris v. Dept. of Transp., 268 Ga. 192 (486 SE2d 826) (1997), the Supreme Court noted that:
The stated intent of the Act is to balance strict application of the doctrine of sovereign immunity, which may produce “inherently unfair and inequitable results,” against the need for limited “exposure of the state treasury to tort liability.”
OCGA § 50-21-21 (a) . The legislature expressly declared as “the public policy of this state that the state shall only be liable in tort actions within the limitations of [the Act] and in accordance with the fair and uniform principles established” therein.OCGA § 50-21-21 (a) .
Norris also emphasized that:
The plain language of
OCGA § 50-21-26 (a) (2) provides two alternative methods of transmitting written notice — mailing or personal delivery. As the Code section specifies, notice “shall be mailed by certified mail, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. . . .”
(Emphasis in original and supplied.) Id. at 192-193.
In Norris, while notice had been sent certified mail, return receipt requested, one of the two methods provided by
Based on the majority‘s reasoning here, mailing of the notice no longer has to be by certified mail, return receipt requested, because, if a claimant can show that DOAS had notice, by whatever method obtained, that would suffice, in contravention of Norris, supra.
Such a conclusion ignores the well-established canon of statutory construction, inclusio unius, exclusio alterius, i.e., the inclusion of one implies the exclusion of others. See, e.g., O‘Melveny & Myers v. Fed. Deposit Ins. Corp., 512 U. S. 79, 86 (114 SC 2048, 129 LE2d 67) (1994); Blackwell v. State, 237 Ga. App. 896, 897 (516 SE2d 787) (1999). Here, the legislature specified two specific methods of delivering notice, thereby impliedly excluding others.
Here, even assuming without deciding that the use of a private delivery service such as Federal Express might be deemed “personal delivery” under that option, a further conjunctive and, I believe, contemporaneous requirement is contained in the statute, i.e., the obtaining of a receipt “from the Risk Management Division of the Department of Administrative Services.”
As repeatedly held, “the Georgia Tort Claims Act will be strictly construed. [Cits.]” Williams v. Dept. of Human Resources, 234 Ga. App. 638, 640 (507 SE2d 230) (1998), cert. granted, Case No. S99G0178 (issued October 13, 1999). Substantial compliance with the requirements of the GTCA‘s provisions will not suffice. Kim v. Dept. of Transp., 235 Ga. App. 480 (510 SE2d 50) (1998).
Harris argues that showing that DOAS did receive the notice should suffice, based on the presence of DOAS’ receipt stamp on the copy of the Bailey letter attached to the complaint. That, however, does not satisfy the requirement that, if personal delivery is used, a receipt must be obtained “from” the department. To hold otherwise would amount to a finding that substantial compliance will suffice. As set out above, until Harris obtained from DOAS the copy of the notice stamped “received,” he had NOTHING from DOAS indicating receipt of the notice, only the documents prepared by Federal Express.
The majority‘s rationale would also seem to imply that any time a litigant has actual notice of a lawsuit, the courts should find that the requisites of valid personal service are present, even if the requirements of numerous statutes have not been met. See, e.g., Joyner v. Schiess, 236 Ga. App. 316 (512 SE2d 62) (1999) (
Alternatives for notification within the act are the purview of the
DECIDED MARCH 30, 2000 — RECONSIDERATION DENIED APRIL 13, 2000 —
Thurbert E. Baker, Attorney General, Daniel M. Formby, Kathleen M. Pacious, Deputy Attorneys General, R. O. Lerer, Senior Assistant Attorney General, George S. Zier, Assistant Attorney General, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Thomas J. Mahoney III, Mary Kathryn Hogan, for appellant.
Jones, Boykin, Stacy & Associates, Noble L. Boykin, Jr., for appellees.