Stopanio v. Leon's Fence & Guardrail, LLC

• Decision Date: 30 May 2018
• Docket Number: A18A0587
• Citation: 815 S.E.2d 232
• Parties: STOPANIO et al., v. LEON’S FENCE AND GUARDRAIL, LLC et al.
• Court: Georgia Court of Appeals

346 Ga.App. 18

815 S.E.2d 232

STOPANIO et al.,

v.LEON’S FENCE AND GUARDRAIL, LLC et al.

A18A0587

Court of Appeals of Georgia.

May 30, 2018

Sarah Finney Kjellin, Colin Dang Delaney, Edward H. Wasmuth Jr., Leah Ward Sears, Atlanta, Stuart Cohen, for Appellant.

Andrew David Horowitz, Christopher Michael Carr, Sharon Priddy Horne, Atlanta, Lori Denise Nash, Kathleen M. Pacious, Loretta L. Pinkston-Pope, Kathleen Sadler Turnipseed, Atlanta, William Dennis Horgan, Steven M. Puritz, for Appellee.

Bethel, Judge.

Following a collision that resulted in the deaths of her parents Teresa and Robert Stopanio and personal injuries to herself, Angela Stopanio, individually and as personal representative of the Estates of Teresa Stopanio and Robert Stopanio, sued the Georgia Department of Transportation (GDOT) and the construction contractors who performed road work at the location where the collision occurred. GDOT moved to dismiss the complaint on the grounds that Stopanio failed to comply with the ante litem notice requirements, and the trial court granted the motion. Likewise, the contractors moved for summary judgment on the grounds that the acceptance doctrine barred any liability to Stopanio resulting from the collision and the trial court granted their motions. For the reasons discussed in this opinion, we affirm in part, vacate in part, and remand the case with direction.

The record shows that on October 29, 2011, Stopanio was traveling in the left southbound lanes of Interstate-75 behind her parents heading to their home in Ocala, Florida. While driving through Valdosta on Interstate-75, Angela witnessed a vehicle enter her parents’ lane and strike the passenger side of their SUV. The impact caused the air bags in her parents’ vehicle to deploy. The parents’ SUV veered off the road, struck the guardrails on the left side of the southbound lane, and struck a concrete bridge piling. The SUV burst into flames upon impact. Stopanio’s parents died immediately.

In January 2012, Stopanio was made personal representative of her parents’ estate and on May 20, 2013, filed an ante litem notice of claim on behalf of her parents’ estate and herself with the Georgia Department of Administrative Services and GDOT. Later that same year, Stopanio filed the wrongful death and personal injury lawsuit giving rise to this appeal against GDOT and the contractors.¹ GDOT moved to dismiss Stopanio’s complaint, and following a hearing on the motion, the trial court dismissed the complaint. The contractors moved for summary judgment, which the trial court granted following a hearing on the motions. This appeal followed.

1. Stopanio argues that the trial court erred in dismissing her complaint against GDOT based on its finding that her ante litem notice was untimely. Stopanio contends that the pending criminal investigation arising out of the accident tolled the 12-month deadline for her to provide ante litem notice to the State regarding her tort claims. More specifically, Stopanio argues that in light of this Court’s holding in Harrison v. McAfee ,² this case should be returned to the trial court for reconsideration of its prior ruling. We agree.

This Court reviews de novo a trial court ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Williams v. Wilcox State Prison , 341 Ga. App. 290, 291, 799 S.E.2d 811 (2017). "However, factual findings by the trial court in support of its legal decision are sustained if there is evidence authorizing them, and the burden of proof is on the party seeking the waiver of immunity." Loehle v. Ga. Dept. of Public Safety , 334 Ga. App. 836, 836-37, 780 S.E.2d 469 (2015) (citations omitted).

So viewed, the evidence shows that the date of loss—that is, the date of the death and personal injury as defined by the statute—was October 29, 2011. It is undisputed that Stopanio was aware of this date of loss, as she was a witness to the accident that resulted in the death of her parents and sustained personal injuries arising out that same accident. To comply with the ante litem notice provision, Stopanio was required to submit written notice within 12 months of the date of loss—here, January 6, 2013.³ However, she did not provide ante litem notice until May 20, 2013.

As an initial matter, it is well established that sovereign immunity is extended to the state and all of its departments and agencies, except as specifically provided by statute, such as the Georgia Tort Claims Act. See Dep’t of Transp. v. Kovalcik , 328 Ga. App. 185, 187-188 (1) (a), 761 S.E.2d 584 (2014). The legislature enacted the GTCA to "eliminate the unfairness caused by a strict application of the traditional sovereign immunity doctrine while, at the same time, limiting the state treasury’s exposure to tort liability." Miller v. Georgia Ports Auth. , 266 Ga. 586, 588, 470 S.E.2d 426 (1996) (citations omitted); see also OCGA § 50-21-20 et seq. The GTCA provides that no person having a tort claim⁴ against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim in writing within 12 months of the date the loss⁵ was discovered or should have been discovered. OCGA § 50-21-26 (a) (1).

As to the content of the notice, the claimant must state to the best of his or her knowledge: (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. OCGA § 50-21-26 (a) (5). Strict compliance with the foregoing requirements is a condition precedent to the claimant’s right to file suit against the State under GTCA. See Kim v. State, Dep’t of Transp. , 235 Ga. App. 480, 481 (2), 510 S.E.2d 50 (1998). Because the GTCA represents a limited waiver of the State’s sovereign immunity crafted by the legislature, the courts lack jurisdiction to adjudicate any such claims against the State unless and until the written notice of claim has been timely presented as provided by statute. See DeFloria v. Walker , 317 Ga. App. 578, 580, 732 S.E.2d 121 (2012).

Our Supreme Court recognizes that, "the GTCA’s ante litem notice provisions clearly contemplate the possibility that a claimant may have imperfect information regarding various facets of her claim at the time her notice is submitted." Cummings v. Ga. Dep’t of Juvenile Justice , 282 Ga. 822, 825, 653 S.E.2d 729 (2007). However, a claimant "is not relieved from giving some notice to the State even if her knowledge is incomplete or she must rely on her belief." Bd. of Regents of Univ. Sys. of Ga. v. Myers , 295 Ga. 843, 846-847, 764 S.E.2d 543 (2014) (citation omitted).

Here, Stopanio argues that the trial court should reconsider its prior ruling on GDOT’s motion to dismiss because, in light of our holding in Harrison , her claims are not barred by the time restrictions contained in the ante litem notice provision.

OCGA § 9-3-99 provides that

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years...

By its plain language, the statute contemplates extending the time in which a victim may file a tort action where there are pending criminal charges arising out of the same facts or circumstances. Prior to Harrison , Georgia courts interpreted OCGA § 9-3-99 to apply only in cases where the defendant in the tort action was also accused of committing the crime from which the cause of action arose. See e.g. Orr v. River Edge Cmty. Serv. Bd. , 331 Ga. App. 228, 230 (1), 770 S.E.2d 308 (2015) ; Mays v. Target Corp. , 322 Ga. App. 44, 46, 743 S.E.2d 603 (2013) ; Columbia Cty. v. Branton , 304 Ga. App. 149, 152-153 (1), 695 S.E.2d 674 (2010). The Harrison decision expanded the scope of the tolling provision to apply to tort claims even where the defendant is not accused of committing a crime against the plaintiff. 338 Ga. App. at 402 (3), 788 S.E.2d 872.

Although the case law at the time the trial court granted GDOT’s motion to dismiss foreclosed an argument based on the application of OCGA § 9-3-99, the final judgment of the trial court was not entered until after Harrison established a significant change in the way the courts interpret OCGA § 9-3-99. While we express no opinion as to the effect, if any, the tolling provision of OCGA § 9-3-99 has on the time requirement provision of the ante litem statute,⁶ this Court’s decision in Harrison is applicable to this case and the trial court should be given an opportunity to review the facts of this case in light of Harrison .⁷ See Long v. Bruner , 171 Ga. App. 124, 125 (2), 318 S.E.2d 818 (1984) ("A reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right under the prior law." (citation and emphasis omitted) ).

Thus, we vacate the trial court’s order dismissing GDOT and remand the case to the trial court. The trial court is directed to reconsider its ruling on whether Stopanio timely notified the State of her claims in compliance with GTCA’s ante litem notice provisions in light of this Court’s holding...