Lynn M. Sylvеster and Steven K. Sylvester appeal from the grant of summary judgment against them in their Georgia Tort Claims Act action, which arose February 28, 1997, against the Department of Transportation, because they never served the Department of Administrative Services, Risk Management Division, in their original suit filed February 26, 1999; voluntarily dismissed the suit prior to service on the DOAS Risk Management Division; and attempted to renew the aсtion after the statute of limitation had run. The renewal suit was ineffective to come within the six-month graсe period, because the first suit was never served on the DOAS Risk Management Division for there to be а conditional waiver of sovereign immunity so thát the first suit was a valid prior pending action prior to the running оf the statute of limitation that was renewable. We affirm.
On February 28, 1997, Lynn Sylvester hydroplaned on standing water on a state highway, which was allegedly caused by the DOT’s negligent maintenance. On February 26, 1999, she and her husband Stеven Sylvester filed suit against the DOT in the Lumpkin Superior Court in case no. 99-CV-110-DB. This suit was never served upon the DOAS Risk Manаgement Division, but was served on DOT only. On January 10, 2000, plaintiffs voluntarily dismissed this action without prejudice. On June 9, 2000, the plaintiffs filed this action, case no. 00-CV-297-DB, in the Lumpkin Superior Court as a renewal action, which was served оn both DOT and the DOAS Risk Management Division for the first time after the statute of limitation had run. DOT moved for summary judgment based on the attachment of the statute of limitation.
The Georgia constitutional amendment of 1974 gavе constitutional status to sovereign immunity for the State of Georgia and permitted the General Assembly to statutorily provide the terms and conditions of its waiver but prevents the courts from abrogating or modifying thе immunity.
1
See Art. I, Sec. II, Par. IX, Ga. Const, of 1983;
Gilbert v. Richardson,
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The General Assembly granted a limited waiver of sovereign immunity with certain conditions precedent tо the waiver; “[t]he state waives its sovereign immunity only to the extent and in the manner provided in this article.” OCGA §§ 50-21-23 (b); 50-21-35;
Christensen v. State of Ga.
Under the Tort Claims Act,
to perfect service of process the plaintiff must both: (1) cause proсess to be served upon the chief executive officer of the state government entity involved at his or her usual office address; and (2) cause process to be served upon the directоr of the Risk Management Division of the Department of Administrative Services at his or her usual office address. The time for the state to file an answer shall not begin to run until process has been served upon all required persons.
OCGA § 50-21-35. Thus, the failure to serve the director of the DOAS Risk Management Division did not comply with the condition precedent to waiver of sovereign immunity, and the State had no duty to respond tо the first timely filed suit.
If a condition precedent to waiver of sovereign immunity has not been satisfied, then the trial court lacks subject matter jurisdiction and no valid action is pending to toll the running of the statute of limitation. See OCGA § 50-21-26 (a) (3);
Howard v. State of Ga.,
supra at 543 (failure to give ante litem notice bars action);
Howard v. Miller,
The Georgia Tоrt Claims Act has its own statute of limitation, which should be read in conjunction with the regular statute of limitation; “[flor tort claims and causes of action which accrue on or after July 1, 1992, any tort action brought pursuant to this article is forever barred unless it is commenced within two years after the date the loss wаs or should have been discovered.” OCGA § 50-21-27 (c); see
Doe #102 v. Dept. of Corrections,
In this case, plaintiffs failed to strictly comply with the conditions precedеnt to the waiver of sovereign immunity and failed to have service made on the DOAS Risk Management Division; therefore, there was no valid pending action that could be renewed after the running of the statutе of limitation in this action, and the defendant was entitled to summary judgment as a matter of law.
Judgment affirmed.
Notes
Ga. L. 1973, pp. 1489-1490, was a constitutional resolution that put before the electors of Georgia the creatiоn of constitutional sovereign immunity in the 1945 Georgia Constitution. The 1976 Georgia Constitution reincorporated sovereign immunity. The 1983 Georgia Constitution provided for the General Assembly to create provisions for waiver of sovereign immunity. See
Toombs County v. O’Neal,
OCGA § 9-2-61 (c) added by amendment Ga. L. 1990, p. 876, § 1.