Moats v. Mendez, A18A1721

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Dillard, Chief Judge.
• Citation: 824 S.E.2d 808,349 Ga.App. 811
• Parties: MOATS et al. v. MENDEZ.
• Decision Date: 14 March 2019
• Docket Number: A18A1721

349 Ga.App. 811
824 S.E.2d 808

MOATS et al.
v.
MENDEZ.

A18A1721

Court of Appeals of Georgia.

March 14, 2019
Reconsideration Denied March 28, 2019
Certiorari Granted December 23, 2019
Certiorari Dismissed as Improvidently Granted September 28, 2020

824 S.E.2d 809

Womack Gottlieb & Rodham, Ronald R. Womack, Steven M. Rodham, Ryan L. Ray, for appellants.

The Furlong Firm, Walter W. Furlong, for appellee.

Charles M. Cork III, amicus curiae.

Dillard, Chief Judge.

349 Ga.App. 811

Efrain Mendez sued Polk County Sheriff Johnny Moats, in his official capacity, and Deputy Sheriff Kathryn Allred, in her individual and official capacities, alleging that he suffered injuries in an automobile accident caused by Allred's negligent driving of a county-owned vehicle. Moats and Allred moved jointly for dismissal, arguing that Mendez's claim against Allred is barred by OCGA § 36-92-3 (a) and that his claim against Moats is barred by his failure to provide the Sheriff's Office with an ante-litem notice. The trial court denied the defendants' motion to dismiss, and, in this interlocutory appeal,

349 Ga.App. 812

Moats and Allred contend that it erred in doing so. For the reasons set forth infra , we reverse.¹

On August 15, 2015, Mendez was driving his vehicle toward the intersection of South

824 S.E.2d 810

Main Street and Case Road in Cedartown, Georgia. As Mendez's vehicle entered the intersection, Deputy Allred—who was on-duty and driving a county-owned patrol vehicle—approached the intersection from the opposite direction and attempted to make a left-hand turn without yielding to oncoming traffic. As a result, her patrol vehicle collided with Mendez's vehicle, and Mendez suffered injuries.

On January 21, 2016, Mendez's counsel sent an ante-litem notice, via certified mail, to Polk County, informing the chairman of its Board of Commissioners of Mendez's claims against Allred; but counsel did not send an ante-litem notice to Sheriff Moats. Subsequently, on August 9, 2017,² Mendez filed a lawsuit against Moats and Allred, alleging that he suffered injuries in an automobile accident caused by Allred's negligent driving of a county-owned patrol vehicle and that Moats was vicariously liable for his employee's negligence. Shortly thereafter, Mendez served his complaint upon Moats and Allred.

On September 9, 2017, Moats and Allred filed separate answers. And on that same date, they filed a consolidated motion to dismiss, arguing that (1) Mendez's claims against Allred were barred by OCGA § 36-92-3 (a), and (2) Mendez's failure to send an ante-litem notice to Moats or the Polk County Sheriff's Office barred any claim against Moats or Allred. Mendez filed a response to the motion, and several rounds of reply briefing ensued. On March 16, 2018, the trial court denied the motion to dismiss, but, ten days later, it granted Moats and Allred a certificate of immediate review. The defendants then filed an application for interlocutory appeal, which we granted.

This Court, of course, "conducts a de novo review of a trial court's ruling on a motion to dismiss."³ In doing so, we are tasked with determining whether "the allegations of the complaint, when

349 Ga.App. 813

construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff's favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts[.]"⁴ But importantly, "we need not adopt a party's legal conclusions based on these facts."⁵ With these guiding principles in mind, we turn now to the defendants' specific claims of error.

1. The defendants first contend that the trial court erred in denying their motion to dismiss Mendez's claim against Allred on the ground that it is barred by OCGA § 36-92-3 (a). We agree.

It is well established that a lawsuit against a sheriff in his official capacity is considered "a suit against the county, and the sheriff is entitled to assert any defense or immunity that the county could assert, including sovereign immunity."⁶ Nevertheless, the Georgia Constitution provides that "the General Assembly may waive the immunity of counties, municipalities, and school districts by statute."⁷ And one such waiver is

824 S.E.2d 811

illustrated by OCGA § 36-92-2 (a), which provides: "The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived up to the following limits...." But while the General Assembly waived sovereign immunity for local government entities in such circumstances, OCGA § 36-92-3 (a) provides: "Any local government officer or employee who commits a tort involving the use of a covered motor vehicle while in the performance of his or her official duties is not subject to lawsuit or liability therefor."⁸ And recently, in Davis v. Morrison ,⁹ this Court specifically held that a county sheriff's deputies are included among the "local government officer[s] or employee[s]" not subject to liability under the plain meaning of OCGA § 36-92-3 (a), and, therefore, tort claims against such deputies

349 Ga.App. 814

arising out of their use of a county vehicle in the course of their employment are barred as a matter of law.¹⁰

Mendez, nevertheless, asserts (and the trial court apparently agreed) that Allred is subject to liability in this instance because the County purchased insurance coverage for the sheriff's vehicles and, thus, under OCGA § 33-24-51, has waived sovereign immunity. But similar to OCGA § 36-92-2 (a), OCGA § 33-24-51 (b) draws a distinction between employees and entities, providing that "sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in Code Section 36-92-2."¹¹ Suffice it to say, Allred is not a governmental entity. Rather, she is an employee. Indeed, similarly to the facts of Davis , Allred is employed as a Polk County sheriff's deputy, she was on duty, and she was driving a county-owned patrol vehicle when the accident that injured Mendez occurred.¹² Given these particular circumstances, "under the plain language of OCGA § 36-92-3 (a), [Allred] is not subject to liability for the accident, and [Mendez's] claims against [her] are barred."¹³ Accordingly, the trial court erred in denying the defendants' motion to dismiss Allred on the ground that Mendez's tort claim against her is barred by OCGA § 36-92-3 (a).

2. The defendants also contend that the trial court erred in denying their motion to dismiss on the ground that Mendez's claim against Moats is barred by his failure to provide the Sheriff's Office with an ante-litem notice. Again, we agree.

OCGA § 36-11-1 provides that "[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims." Here, it is undisputed that Mendez did not serve Moats or the Polk County Sheriff's Office with an ante-litem notice. Nonetheless, he argues that, under OCGA § 36-11-1, his service of such notice on Polk

349 Ga.App. 815

County officials sufficiently provided Moats with notice as well. But this Court has explicitly held—and recently reiterated—"that OCGA § 36-11-1 applies both to the counties and to the sheriffs, when sued in their official capacities."¹⁴ Indeed, as we stated in Branton —and reiterated in Davis —"claims against [a sheriff]

824 S.E.2d 812

are not sustainable without the ante litem notice."¹⁵

The dissent notes that Branton did not specifically focus on the issue before us but, rather, decided that the statutes, which tolled the limitation period for a crime victim and a plaintiff deterred by fraud to file a tort action, respectively, did not toll the one-year limitation period for a plaintiff to serve an ante-litem notice on the county and sheriff required by OCGA § 36-11-1.¹⁶ The dissent then reasons that because a claim against a sheriff is essentially a claim against the county¹⁷ and OCGA § 36-11-1 only generally refers to "claims against counties,"¹⁸ presentment of such a claim solely to the county, even when the claim is actually against the sheriff, satisfies the statute. The dissent, thus, opines that our conclusion reached here and in Davis is incorrect. But in reaching its conclusion, the dissent both minimizes the fact that OCGA § 36-11-1 fails to specify to whom presentment must be made and elides the fact that the Georgia Constitution and our well-established case law treats the county and sheriff as separate and distinct entities. Accordingly, we find the dissent's reasoning unpersuasive.¹⁹

349 Ga.App. 816

The...