City of LaGrange v. USAA Ins. Co.
| Decision Date | 17 November 1993 |
| Docket Number | No. A93A2219,A93A2219 |
| Citation | 438 S.E.2d 137,211 Ga.App. 19 |
| Parties | CITY OF LaGRANGE v. USAA INSURANCE COMPANY. |
| Court | Georgia Court of Appeals |
Lewis Taylor & Lee, Jeffrey M. Todd, LaGrange, for appellant.
Swift, Currie, McGhee & Hiers, Frederick O. Ferrand, Kristine B. Morain, Atlanta, Cozen & O'Connor, Linda C. Hinson, Charlotte, NC, for appellee.
We granted this interlocutory appeal to determine whether the trial court erred in denying summary judgment to the City of LaGrange in this suit by USAA Insurance Company (USAA). USAA claims subrogation for damage to its insured's house caused by a burst water main on October 3, 1990. USAA contends it complied with the provisions of OCGA § 36-33-5 by giving timely notice to the City's insurer Gallagher Bassett Services, Inc.; or, that the City waived the statutory requirements for ante litem notice.
OCGA § 36-33-5(a) and (b) provide that no party shall bring suit against a municipal corporation for injuries to person or property without first giving notice within six months of the event, "in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury."
USAA's employee Lois Ressler stated in affidavit that on February 6, 1991, she contacted the City of LaGrange and asked to speak to the department responsible for handling claims. She was referred to the City's personnel department. Ressler asked a personnel department employee whom USAA should notify with respect to its claim; Ressler was informed that the City's insurance was with Gallagher Bassett and was instructed to submit USAA's claim to Gallagher Bassett in Atlanta. Rick Cofer of Gallagher Bassett instructed Ressler to send all paperwork to him, and to contact Gwen Nugent in the City's personnel department and have Nugent report the loss. On February 7, 1991, Ressler sent Gallagher Bassett a letter which she says fully notified the City of LaGrange of the loss; according to Ressler, Gallagher Bassett on behalf of the City of LaGrange sent her a letter acknowledging her February 7 letter and "dictating" that Gallagher Bassett was claims administrator for the City and would be handling the claim. On February 21, 1991, Ressler told the City's personnel department employee, Nugent, that USAA had a claim against the City; Nugent stated that if Ressler would send all support documents to her attention when USAA was ready to close its files, Nugent would send a report to Gallagher Bassett. After the six-month deadline for notice to the City, in June 1991, Ressler received a letter from Gallagher Bassett saying it was still awaiting USAA's paperwork. On July 12, 1991, USAA concluded its loss adjustment and, on July 24, sent a letter to Walt Williams at the City of LaGrange Water Department. On August 13, 1991, USAA received a letter from Gallagher Bassett denying liability for the claim based on OCGA § 36-33-5. Held:
1. The evidence, viewed most favorably to USAA as the non-moving party on City of LaGrange's motion for summary judgment (see Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474), does not raise a genuine issue of material fact whether USAA complied with the notice provisions of OCGA § 36-33-5; and the City of LaGrange is entitled to judgment as a matter of law.
It is undisputed that the only written timely notice of USAA's claim against the City was sent to the City's insurance company. The City's insurer or claims adjustor is not "the governing authority of the municipal corporation." OCGA § 36-33-5(b). The mayor and the city council are the governing authority of the City; only they can settle the claim. The insurer is not a "department" of the City, nor is it the "agent" of the "governing authority of the municipality." The contract between the City and its insurer does not convert the insurer to the agent of the City for the purpose of ante litem notice required by OCGA § 36-33-5, for the insurer's interests are not identical to the City's interests, as the insurer may deny coverage on some basis having nothing to do with the City's liability for damages to the claimant.
"Substantial compliance" satisfies OCGA § 36-33-5 (Jones v. City of Austell, 166 Ga.App. 808, 809, 305 S.E.2d 653), the object being simply to give the City notice that a party has a grievance against it (Langley v. City Council of Augusta, 118 Ga. 590, 600, 45 S.E. 486), but notice to the City's insurer is not substantial compliance with the...
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