Strict notice requirement of Georgia Tort Claims Act is trap door for the unwary
About once a month I get a call from an attorney in another state asking about the procedure for making injury and death claims against Georgia state government. Too often they are disappointed to learn that their letters to and correspondence with a claims adjuster for the state was not adequate notice of the claim. If a year has passed without sending notice of claim in proper form, their clients are out of luck. More than once, I have gently suggested that a lawyer notify his legal malpractice insurance carrier.
Once again, on May 17, 2016, the Georgia Court of Appeals reiterated the old story that the ante litem notice of claim requirement of O.C.G.A. § 50-21-26 is strictly construed and correspondence with the state’s claims adjuster is not good enough.
In Callaham v. Georgia Ports Authority, 337 Ga.App. 120, 786 S.E.2d 505 (2016), Judge Chris McFadden wrote for the court in a case in which the injured plaintiff contended that correspondence with the Risk Management Division of the Department of Administrative Service (DOAS) and a claims adjuster satisfied the ante litem notice requirement. Once again, a lawyer unfamiliar with the details of the Georgia Tort Claims Act fell through a procedural trap door, taking his client with him.
In the Callaham case, the plaintiff was injured at the Georgia Ports Authority terminal in Savannah. His lawyer sent a representation letter to the Ports Authority’s claims adjuster providing information, pretty much as one would in any other car wreck case. Later the lawyer sent a notice of claim letter by certified mail to the DOAS Risk Management Division.
However, he did not send the ante litem notice to the Ports Authority or comply with other details of O.C.G.A. § 50-21-26, which mandates the following requirements:
(a) No person, firm, or corporation 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:
(1) Notice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered; provided, however, that for tort claims and causes of action which accrued between January 1, 1991, and July 1, 1992, notice of claim shall be given in writing within 12 months after July 1, 1992;
(2) Notice of a claim shall be given in writing and shall 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. Each state government entity may designate an office or officer within that state government entity to whom a notice of claim is to be delivered or mailed;
(3) No action against the state under this article shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in this subsection;
(4) Any complaint filed pursuant to this article must have a copy of the notice of claim presented to the Department of Administrative Services together with the certified mail or statutory overnight delivery receipt or receipt for other delivery attached as exhibits. If failure to attach such exhibits to the complaint is not cured within 30 days after the state raises such issue by motion, then the complaint shall be dismissed without prejudice; and
(5) A notice of claim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following:
(A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim;
(B) The time of the transaction or occurrence out of which the loss arose;
(C) The place of the transaction or occurrence;
(D) The nature of the loss suffered;
(E) The amount of the loss claimed; and
(F) The acts or omissions which caused the loss.
(b) No action may be commenced under this article following presentation of a notice of claim until either the Department of Administrative Services has denied the claim or more than 90 days have elapsed after the presentation of the notice of claim without action by the Department of Administrative Services, whichever occurs first.
The Supreme Court and Court of Appeals have consistently required strict compliance with this notice procedure. Even actual notice to the state agency is not sufficient to overcome the strict procedural requirements. Within twelve months of the incident, notice must be delivered in person or by certified mail or statutory overnight delivery, e.g., FedEx, to both the Department of Administrative Services Risk Management Division and the designated officer (usually commissioner or general counsel) of the state agency involved.
A substantial body of case law makes it clear that notice to a claims adjuster or attorney for the state is not good enough.
The ante litem notice must provide the listed information, including an amount of claim. Sometimes, if the extent of damage is undetermined, lawyers just state the amount as the per person cap under the statute, $1,000,000 as a place holder.
The Georgia Tort Claims Act was enacted in 1992, waiving sovereign immunity up to $1,000,000 per person and $3,000,000. While providing a means for compensation in state tort claims, it is riddled with exceptions, exclusions and procedural trip wires and trapdoors for the unwary. Any lawyer who is not familiar with it, absolutely must study the statute and case law interpreting it in exhaustive detail. Even those of us who have worked with it for decades must review it every time we handle a state tort case.
From the early 1980s until after passage of the Georgia Tort Claims Act in 1992, much of my work at an insurance defense firm involved defense of tort cases for the Georgia Department of Administrative Services Risk Management Division, working closely with the Attorney General’s office in defense of state officials and employees. In Hartley v. Agnes Scott College, 295 Ga. 458, 759 S.E.2d 857 (2014), the Supreme Court quoted my book describing the system prior to 1992:
Prior to enactment of the GTCA, tort claims were brought against individual state employees and officials rather than the state agencies, and funds were allocated by the state to pay settlements or judgments against employees and officials within the course and scope of their duties. The GTCA reversed this scheme, so that claims are brought against agencies rather than individual employees and officials.
After the Georgia Tort Claims Act became law, the Attorney General decided that outside lawyers defending cases for the state had to become Special Assistant Attorneys General, working at SAAG rates which were much lower than I had been billing. I thanked him for the honor but, needing to feed a growing family, declined. Since then, I have handled personal injury and wrongful death cases against the state.
Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.