McGee v. State

• Decision Date: 16 June 1997
• Docket Number: No. A97A1000,A97A1000
• Citation: McGee v. State, 487 S.E.2d 671, 227 Ga.App. 107 (Ga. App. 1997)
• Parties: , 97 FCDR 2380 McGEE v. STATE of Georgia et al.
• Court: Georgia Court of Appeals

Page 671

487 S.E.2d 671

227 Ga.App. 107, 97 FCDR 2380

McGEE v. STATE of Georgia et al.

No. A97A1000.

Court of Appeals of Georgia.

June 16, 1997.

Reconsideration Dismissed

July 2, 1997.

Elizabeth G. Marlowe, Athens, for appellant.

Thurbert E. Bauer, Attorney General, Blasingame, Burch, Garrard, Bryant & Ashley, E. Davison Burch, Athens, for appellees.

JOHNSON, Judge.

Paula McGee brought suit pursuant to the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.) against the State of Georgia and one of its employees, William Avant, seeking to recover damages for injuries she allegedly sustained in an automobile accident. The trial court granted the State's motion for summary judgment on the grounds that McGee had failed to comply with ante litem notice requirements and that Avant, acting within the scope of his employment at the time of the accident, was not a proper party to the action. McGee appeals.

1. McGee asserts that strict compliance with the ante litem notice provision of the Georgia Tort Claims Act, OCGA § 50-21-26, violates her due process and equal protection rights. McGee originally filed this appeal in the Supreme Court of Georgia which transferred the case to this Court because the trial court did not rule on any constitutional issue. Likewise, while this Court has jurisdiction in this case generally, we cannot consider an issue which was not addressed below. See Brooks v. Barry, 223 Ga.App. 648, 649-650(4), 478 S.E.2d 616 (1996).

Even interpreting this enumeration of error broadly, as a challenge to the trial court's strict application of the ante litem requirements of the Georgia Tort Claims Act, McGee's argument still must fail. As a condition precedent to any tort action filed against the State, OCGA § 50-21-26(a)(1) and (2) provide that ante litem notice be made as follows: "Notice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered.... 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, the act or omissions of which are asserted as the basis of the claim." The collision giving rise to this suit occurred on September 27, 1993. McGee was contacted by an insurance adjuster retained by the State's liability insurance carrier, American Southern Insurance Company, and a settlement offer was made. This offer remained open until February 1, 1995, when it was withdrawn. McGee filed suit in September 1995. In support of its motion for summary judgment, the State provided the affidavits of James Newsom, Director of the Risk Management Division of the Georgia Department of Administrative Services, and Bill Atkins, Director of the Georgia Drugs & Narcotics Agency, which stated that as of October 13, 1995, neither agency had received ante litem notices in connection with this matter. These affidavits establish that notice was not given within 12 months of the accident to the parties specified in the statute.

McGee argues that even if the State was not served with ante litem notices, it clearly had notice of the claim because of the actions of the insurance adjuster acting on its behalf. She argues that this represents substantial compliance with the statute and should be adequate as a matter of law. Whether substantial compliance with the ante litem provisions of the Georgia State Tort Claims Act is sufficient is not, as asserted by McGee, an issue of first impression. The trial court correctly relied on Hardy v. Candler County, 214 Ga.App. 627, 448 S.E.2d 487 (1994), in which this Court affirmed the grant of summary judgment to the co-defendant State holding that "pursuant to OCGA § 50-21-26(a) written notice of the claim must be received by the State within the requisite statutory period so that the State can take appropriate action on the claim." (Emphasis supplied.) Id. at 631, 448 S.E.2d 487. And recently, this Court contrasted ante litem notice requirements pursuant to the Georgia Tort Claims Act with the "substantial compliance" standard applicable to notice given prior to the initiation of suit against local governments or municipalities. Howard v. State, 226 Ga.App. 543, 487 S.E.2d 112 (1997). In holding that substantial compliance is inadequate under the Georgia Tort Claims Act, Howard notes that "the State Tort Claims Act cannot be considered unclear or at all open-ended about the service aspect of its ante litem notice provision. ...