Howard v. State, A97A1453

• Decision Date: 22 May 1997
• Docket Number: No. A97A1453,A97A1453
• Citation: 487 S.E.2d 112,226 Ga.App. 543
• Parties: , 97 FCDR 2036 HOWARD v. The STATE of Georgia.
• Court: Georgia Court of Appeals

Page 112

487 S.E.2d 112

226 Ga.App. 543, 97 FCDR 2036

HOWARD v. The STATE of Georgia.

No. A97A1453.

Court of Appeals of Georgia.

May 22, 1997.

Dozier, Lee, Graham & Sikes, Neal B. Graham, Macon, for appellant.

Michael J. Bowers, Attorney General, Atlanta, Hulsey, Oliver & Mahar, Samuel L. Oliver, Abbott S. Hayes, Jr., Gainesville, for appellee.

ELDRIDGE, Judge.

Barbara Howard, as next friend to her minor daughter, appellant Jamy Howard, appeals a Hall County Superior Court's order dismissing her personal injury claim against appellee "State of Georgia d/b/a Lake Lanier Island" based upon appellant's failure to comply with the ante litem notice provision contained in our Georgia State Tort Claims Act, OCGA § 50-21-20 et seq. Herein, we affirm the trial court's dismissal based upon a deficiency in the service of the ante litem notice, but find that such dismissal is without prejudice and that, under the facts of the case sub judice, the time limitation imposed within the ante litem notice provision does not bar the minor plaintiff from refiling her personal injury claim provided that proper ante litem notice has been given prior to refiling. Held:

1. In the State Tort Claims Act of 1992, our legislature attempted to strike a public policy balance between: (1) the "inherently unfair and inequitable results" which occur in the strict application of the doctrine of sovereign immunity, and (2) the necessity to allow the State government "flexibility" in order to provide and perform a broad range of public services with limited exposure to monetary liability, which would deplete the State's coffers. Ga. L. 1992, pp. 1883, 1884; OCGA § 50-21-21(a). To this end, the General Assembly specifically provided that the tort liability of this State shall only be "within the limitations of this article [OCGA § 50-21-20 et seq.] and in accordance with the fair and uniform principles established in this article." OCGA § 50-21-21(a); Ga. L. 1992, p. 1884. Thus, the State Tort Claims Act, by its own terms, must be strictly construed.

Under the Act, and as a condition precedent to any tort action being filed against the State, OCGA § 50-21-26(a)(2) provides for notice ante litem motam, i.e., notice before suit is brought. The statute requires that such notice "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, the act or omissions of which are asserted as the basis of the claim." OCGA § 50-21-26(a)(2). Failure to comply with this ante litem notice provision prevents any court from obtaining jurisdiction over the subject matter of the action. OCGA § 50-21-26(a)(3).

By way of comparison, an ante litem notice provision also exists with regard to an attempt to assign tort liability to local governments and municipalities; however, this provision provides that such notice be served upon "the governing authority." OCGA § 36-33-5. The lack of specificity therein has furnished this Court with a basis for finding "substantial compliance" when the written ante litem notice is "received by the municipality or one of its departments or officials," (citations and punctuation omitted) and has thus served its purpose of putting "the city on notice of the grievance." Burton v. DeKalb County, 202 Ga.App. 676, 677, 415 S.E.2d 647 (1992); Tanner v. City of Gainesville, 162 Ga.App. 405, 407(2), 290 S.E.2d 541 (1982).

In contrast, the State Tort Claims Act cannot be considered unclear or at all open-ended about the service aspect of its ante litem notice provision. In fact, it cannot get any more specific: ante litem notice must be served upon the Risk Management Division of the Department of Administrative Services and whichever State governmental entity the plaintiff holds as liable for the alleged injury. ¹

With these legal principles in mind, we turn to the case sub judice.

A review of the record shows that appellant sent the required ante litem notice to David Milner, an agent with the insurance company for Lake Lanier Islands, Mark Adjustment Services. A copy of the notice was also sent to the State Attorney General's Office. Such notice is obviously deficient under the statute as notice to an insurer or the Attorney General is not notice to the State agencies specified in the statute. See, e.g., City of LaGrange v. USAA Ins. Co., 211 Ga.App. 19, 21, 438 S.E.2d 137 (1993). Thus, appellant's complaint was properly subject to dismissal ² pursuant to OCGA § 9-11-12(b)(1), since the trial court did not have subject matter jurisdiction over the action. OCGA § 50-21-26(a)(3).

In so holding, we are not unmindful of the fact that the record before us contains references to conversations between appellant's counsel and insurance agent David Milner, which include some unsettling evidence that Milner intimated the requisite notice should be sent to him at Mark Adjustment Services, since he was "handling this matter on behalf of the Department of Administrative Services." Nonetheless, we find that the clearly stated directives in the statutory notice provision of OCGA § 50-21-26(a)(2) cannot give way before this evidence. The explicit ante litem notice provision of the State Tort Claims Act is ignored only at peril to a plaintiff's cause of action. The specificity of the statute and the expressed public policy rationale therefor demand such a result. ³

2. Under the facts of this case, appellant's cause of action may be refiled, as such is not barred by the time restriction contained in the ante litem notice provision.

The statute requires that ante litem notice "shall be given in writing within 12 months of the date the loss was discovered or should have been discovered." OCGA § 50-21-26(a)(1). A review of the legislative headnote with regard to this portion of the Code section demonstrates the intent of the General Assembly was "to provide for ante litem notice of claim; to provide procedures and time limits for processing such ante litem notice and claims; [and] to provide a statute of limitations." ⁴ Further, it is well established that failure to comply with an ante litem notification provision within the time required thereby is a bar to any right of action. See, e.g., Mattox v. Bailey, 221 Ga.App. 546, 472 S.E.2d 130 (1996); Langton v. Dept. of Corrections, 220 Ga.App. 445, 446, 469 S.E.2d 509 (1996); see also USAA Ins. Co., supra at 21, 438 S.E.2d 137; City of Atlanta v. Barrett, 102 Ga.App. 469, 471, 116 S.E.2d 654 (1960).

In fact, an ante litem time requirement has been held to be, in itself, a form of statute of limitation, with all the general principles applicable to statutes of limitation also applying to ante litem time restrictions, including tolling provisions: "A statute of limitation is any law which fixes the time within which parties must take judicial action to enforce rights or else be thereafter barred from enforcing them. Prudential Insurance Co. v. Sailors, 69 Ga.App. 628(4) (26 S.E.2d 557) [(1943)]. While the giving of [such] notice is a condition precedent to the bringing of an action, the giving of [the] notice is at once part and parcel of the enforcement of the right and it is an inseparable part of the bringing of the action. It is a part of the procedure for enforcing the right[.] ... We, therefore, conclude that the requirement that the notice be given within months from the date of the injuries or else that the action therefor be forever barred is itself a statute of limitation and subject to the general law of this State with respect to the tolling of statutes of limitation." Barrett, supra at 471-472, 116 S.E.2d 654. In the case sub judice, appellant is a minor. Such status tolls the time limitation of an ante litem notice requirement until appellant reaches her majority. ⁵ OCGA § 9-3-90(a); Price v. Dept. of Transp., 214 Ga.App. 85, 87-88, 446 S.E.2d 749 (1994); Barrett, supra. Further, this Court has held that statutes of limitation will not run against a minor represented in litigation by a next friend. Price v. Dept. of Transp., supra at 87-88, 446 S.E.2d 749 ⁶; Ethridge v. Price, 194 Ga.App. 82, 85, 389 S.E.2d 784 (1989) (Sognier, J., concurring, specially); Barnum v. Martin, 135 Ga.App. 712, 715, 219 S.E.2d 341 (1975); Jones v. Hartford Accident, etc., Co., 132 Ga.App. 130, 207 S.E.2d 613 (1974); Whalen v. Certain-Teed Products Corp., 108 Ga.App. 686, 687, 134 S.E.2d 528 (1963). Thus, appellant's cause of action, brought by her mother as next friend, is not barred by virtue of the ante litem notice time limitation contained in OCGA § 50-21-26(a)(2).

Judgment affirmed.

RUFFIN, J., and HAROLD R. BANKE, Senior Appellate Judge,...